Citation Nr: 1751875	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  12-27 015	)	DATE
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On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for chronic fatigue syndrome, to include as due to a medically unexplained, chronic multisymptom illness related to Persian Gulf service.

2.  Entitlement to service connection for erectile dysfunction, to include as disability due to undiagnosed illness related to Persian Gulf service.

3.  Entitlement to service connection for joint pain in shoulder, to include as disability due to undiagnosed illness related to Persian Gulf service.

4.  Entitlement to service connection for tension headaches, to include as disability due to undiagnosed illness related to Persian Gulf service.

5.  Entitlement to service connection for transitory numbness in legs and arms, to include as disability due to undiagnosed illness related to Persian Gulf service.



REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel


INTRODUCTION

The Veteran served on active duty from June 1985 to August 1997, to include service in Southwest Asia from December 1990 to April 1991.

These matters come before the Board of Veterans Appeals from RO decisions of September 2010 and September 2012.

The Veteran had requested the opportunity to present sworn testimony in support of his appeal during a hearing before a Veterans Law Judge.  Such a hearing was scheduled in June 2016, and the Veteran was notified of the scheduled time and place at his current address of record.  He failed to appear for the hearing, however, and has not requested another one or attempted to show good cause for his failure to appear.  When an appellant elects not to appear at the prescheduled hearing date, the request for a hearing will be considered to have been withdrawn.  38 C.F.R. § 20.704(d).  His appeal will thus be adjudicated without further delay based upon all the evidence presently of record.

The issues of entitlement to service connection for joint pain in shoulder, tension headaches, and transitory numbness in legs and arms, all to include as disability due to undiagnosed illness related to Persian Gulf service are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran had active service the Southwest Asia Theater of operations during the Persian Gulf War and has developed chronic fatigue syndrome.  

2.  Erectile dysfunction was initially manifested during service. 


CONCLUSIONS OF LAW

1.  Service connection for chronic fatigue syndrome is warranted.  38 U.S.C. §§ 1110, 1117, 5106 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).  

2.  Service connection for erectile dysfunction is warranted.  38 U.S.C. §§ 1110, 5106 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking service connection for chronic fatigue syndrome on the basis that it is a medically unexplained chronic multisymptom illness due to his service in the Persian Gulf.  

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Board thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.  

Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C. §§ 1110, 1131.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

Under 38 U.S.C. § 1117, service connection may be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021.  See also 38 C.F.R. § 3.317.

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

Chronic fatigue syndrome

A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, such as:  chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders.  38 C.F.R. § 3.317(a)(2).  

In this case, the Veteran has the requisite Southwest Asia service.  He has been assigned a diagnosis of chronic fatigue syndrome by his VA physicians.  Chronic fatigue syndrome is a medically unexplained chronic multisymptom illness, under VA regulation.  In such a case, no further nexus is required, as his chronic fatigue syndrome may be presumed to be related to his Southwest Asia service.  According the Veteran every benefit of the doubt, then, service connection for chronic fatigue syndrome as a medically unexplained chronic multisymptom illness is warranted.  

Erectile dysfunction

Service connection on a direct basis is warranted for the Veteran's erectile dysfunction.  According to his VA treatment records, the Veteran reported that erectile dysfunction began in 1997, when he was still in service.  That he continues to have it is amply documented in his medical records, which reflect that the condition is treatable with medication and that he was able to conceive a son in approximately 2007.  The Veteran is competent to describe the onset of his erectile dysfunction, and the Board finds no basis to impeach his credibility.  According the Veteran every benefit of the doubt, service connection for erectile dysfunction is warranted. 


ORDER

Service connection for chronic fatigue syndrome is granted, subject to the laws and regulations governing the award of monetary benefits.

Service connection for erectile dysfunction is granted, subject to the laws and regulations governing the award of monetary benefits.


REMAND

The RO adjudicated the remaining claims only under the Persian Gulf War presumptions; no other theories of entitlement were considered.  At a minimum, this should include a review as to whether direct service connection is warranted.  The Board holds that the question of secondary service connection, or proximate causation is raised by the record as well, at least with regard to the question of whether the Veteran's headaches could be secondary to his service-connected PTSD.

The Veteran's service treatment records are mostly missing from the claims file.  The RO made two requests through the appropriate channels for the service treatment records, and was told that they are unavailable.  After the RO notified the Veteran of this finding, the Veteran wrote to say that his service treatment records were lost in Kitzinger, Germany, where he was initially stationed in June 1994.  No further action was taken upon receipt of this information.  Because of the importance of original service treatment records, the Board determines that additional effort to locate the Veteran's records, especially in light of his information that the records were lost while he was still on active duty.  

The Veteran's service personnel records indicate that he was stationed in Germany from April 1991 to June 1997, without further information as to exactly where he was located during this time.  The United States Army is no longer in Kitzinger, as the Army Airfield in Kitzinger was turned over to the German government in 2007.  Therefore, all of the records held in Kitzinger would have been returned to the United States.  Barring the unlikely event that the Veteran's records were destroyed while he was stationed at Kitzinger, they were more likely simply misfiled and would have been returned to the United States along with any others in 2007.  If the Veteran received any hospital treatment or mental health treatment, all of his records may have been misfiled with the clinical hospital records or the mental health records associated with that base.  Therefore, another attempt to locate records pertaining to the Veteran among the clinical and mental health records from Kitzinger should be made.

Although the Veteran received a standard form letter informing him of the importance of medical records proximate to service, he has not identified where he received his medical care between the time he was discharged from service and when he began receiving VA medical care.  The earliest VA treatment records contained in his file date from 2009.  If he received earlier VA care, he is encouraged to report such, so that VA can obtain all earlier records for review to support his claims.  Additionally, private medical records in between his discharge from service in 1997 and 2009 would help to support his claims.  

As the appeal is being remanded, the Veteran's VA medical records should be updated for the file as well.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should request clinical and mental health treatment records, and any other medical records pertaining to the Veteran, which would have been stored in Kitzinger, Germany between 1991 and 1997 through official channels.  All requests and replies must be thoroughly documented for the claims file.

2.  The RO should obtain all records of VA medical treatment afforded to the Veteran after October 2014 by the Mountain Home VA Medical Center and all related clinics, and the Milwaukee VA Medical Center and all related clinics, for inclusion in the file.

3.  After securing the necessary release, the RO should obtain medical records from all private medical care providers who treated the Veteran for shoulder pain, headaches, and transitory numbness of his arms and legs since his discharge from service.   

4.  AFTER obtaining the records requested above, the Veteran's claims file should be provided to a VA physician for review and an opinion as to whether it is more, less or equally likely that the Veteran's headaches had their inception during service or whether they are proximately caused by, or secondary to his service-connected PTSD.  

IF the reviewer deems that a clinical examination and/or additional tests or studies are necessary, then such examination/tests must be arranged.

5.  After the development requested above has been completed to the extent possible, the RO should again review the record.  Any additional evidentiary development, such as further medical opinions, which may become apparent at this point should be accomplished.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs