Citation Nr: 1756977	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  08-02 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for a disability manifested by generalized body pain and fatigue, to include as due to undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317. 


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Brandt, Associate Counsel
INTRODUCTION

The Veteran served an initial period of activity for training (ACDUTRA) from June 1981 to August 1981 and on active duty from January 1982 to January 1986 and from July 1986 to October 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2009, the Veteran and his wife testified before a Veterans Law Judge via a videoconference hearing.  A transcript of the hearing is of record. 

The Board remanded this issue in October 2009 and February 2011 for additional development.

In February 2013, the Board notified the Veteran that the Judge before whom he had testified in May 2009 was no longer employed by the Board.  He was offered an additional opportunity to testify before the Board and later that same month accepted a new Board hearing.  In April 2013, the Board remanded this issue to afford the Veteran new hearing before the Board.  In August 2013, the Veteran withdrew his request for another Board hearing.

In March 2014, September 2014, September 2015, and February 2017, the Board remanded this matter for additional development.


FINDING OF FACT

The record does not show that the Veteran has been diagnosed with chronic fatigue syndrome, fibromyalgia, or another undiagnosed illness; and his generalized body pains and fatigue have been attributed to his service-connected disabilities, or to other diagnosed disorders not found to be related to his military service.

CONCLUSION OF LAW

The criteria for service connection for a disability manifested by generalized body pain and fatigue, to include as due to undiagnosed illness or another qualifying chronic disease, have not been met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by a letter dated in December 2006.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has raised any issue 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 duty to assist argument).

The Board finds there has been substantial compliance with its prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)


II.  Service Connection 

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  

To establish a right to compensation for a present disability, a veteran must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021).  Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  
As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theatre of Operations during the Persian Gulf War.  See July 2008 military personnel record.  Thus, the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed below, are applicable in this case. 

For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders.  38 C.F.R. § 3.317(a)(2)(i).  

For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. § 3.317(a)(2)(ii).  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained.  Id.  The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest).  

Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 C.F.R. § 3.317(b).  

Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness.  See Layno, 6 Vet. App. at 469 (providing that "competency" is a "legal concept determining whether testimony may be heard and considered by the trier or fact" and that "credibility" is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  

To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail.").  


Analysis

The Veteran seeks entitlement to service connection for disabilities manifested by generalized body pains and fatigue due to an undiagnosed illness.  The Veteran believes his generalized body aches and fatigue are due to exposure to environmental hazards during his service in the Persian Gulf.  See May 2009 Hearing Testimony.

Initially, the Board notes that the Veteran is service connected for bilateral patellar syndrome, low back strain, irritable bowel syndrome, and left shoulder impingement syndrome, which will be considered in connection with this claim. 
Service treatment records have been reviewed and no specific complaints of generalized body aches or fatigue are noted.  The Veteran's September 1997 separation examination indicated that the Veteran experienced painful and swollen joints and experienced knee, shoulder, and back issues.  However, the Veteran indicated that he was in good health. 

A January 2000 VA mental health record first indicated that the Veteran had difficulty with sleep, getting only six hours a night and feeling tired in the morning.  June 2006 VA treatment records note the Veteran's sleep problems as well as complaints about back, neck, and knee pain.  In December 2008 the Veteran underwent a sleep study for snoring and excessive daytime sleepiness and was diagnosed with hypoxemia without sleep apnea. 

In December 2008, the Veteran was afforded a VA examination to assess the Veteran's alleged Gulf War syndrome manifested by pain and fatigue.  The Veteran's file was not available for review, however the examiner noted that the Veteran suffered from multiple joint pains but that the Veteran was service connected for his shoulders, bilateral knees, and his back.  The examiner also noted that the Veteran suffered from fatigue but that multiple factors including his non service-connected bipolar disorder and service-connected orthopedic condition could disrupt his sleep. 

The Veteran was afforded another VA examination in February 2010.  The examiner reviewed the Veteran's file and noted the Veteran's complaints of fatigue and "flu-like" pain.  The examiner also noted that the Veteran was diagnosed with hypoxia without sleep apnea, likely secondary to obesity and sedating medications.  The examiner opined that the Veteran does suffer from fatigue but does not meet the criteria for chronic fatigue syndrome.  The examiner stated that the Veteran's fatigue is at least as likely as not secondary to his depression and mental health issues.  The examiner also stated that for the Veteran's generalized body pain, the Veteran has diagnosable conditions and that there is no undiagnosed illness for that complaint.  The March 2011 examiner did not have the Veteran's service treatment records but elicited a history from the Veteran.  She opined that the Veteran's fatigue is most likely due to his bipolar disorder and depression and the Veteran's body pains are attributable to his service-connected disabilities and that there is no undiagnosed illness to account for the body pain complaints. 

The Veteran was afforded another VA examination in June 2014.  The examiner reviewed the Veteran's files and noted his complaints of neck, bilateral shoulder, bilateral hip and bilateral knee pain as well as cycles of sleepiness.  The examiner stated that the Veteran does not have a diagnosis of chronic fatigue syndrome.  The examiner opined that the Veteran's joint pains appear to be related to and consistent with symptoms associated with the Veteran's known orthopedic conditions.  The examiner also opined that the Veteran's fatigue is more a symptom of sleepiness and that the Veteran's bipolar disorder could contribute to the Veteran's fatigue.

Pursuant to the February 2017 Board remand, the Veteran was afforded an examination in August 2017.  The examiner reviewed the claims file and opined that the Veteran does not have a diagnosis of chronic fatigue syndrome.  The examiner also reviewed the June 2014 VA examination and stated that he finds the June 2014 VA examiner's evaluation to be accurate and after his own examination of the Veteran agrees entirely with her conclusions.  The examiner stated that the Veteran does not have generalized body pain and fatigue.  He stated that the Veteran has specific body pains related to well documented impairments for which the Veteran is already service connected for to include degenerative disc disease; spondylosis of the lumbar and cervical spine; chondromalacia patellae, osteoarthritis, and PFS; and osteoarthritis of the shoulder AC joints.  

The examiner also noted that the Veteran's joint pain is not migratory in nature and is most likely attributable to other injuries as it is not generalized muscle aches and weakness.  The examiner also noted that the Veteran does not have low grade fever, palpable or tender cervical or axillary lymph nodes, or nonexudative pharyngitis; however, the Veteran does experience migraine headaches, of a determined etiology.  The Veteran reports that he hurts all over, from head to toe.  When pressed to be more specific, he cannot.  When asked about the areas for which he is already service connected, such as his back, neck, shoulder, and knees, he says those places are the biggest problem.  The examiner also noted that the Veteran suffers from fatigue but that it is not debilitating or lasts longer than 24 hours after exercise.  The examiner noted that the Veteran was diagnosed with bipolar disorder and opined that his bipolar disorder or medication could cause tiredness or fatigue.  

The Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome or fibromyalgia.  The examiner opined that it is less likely than not (less than a 50% probability) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service.  The examiner further opined that the Veteran does not have a diagnosis of generalized body pain and fatigued under C.F.R. 3.317 that is at least as likely as not incurred in or caused by body fatigue during service.

The Veteran reports fairly specific joint pains (with exacerbations of discomfort) which are not migratory, but appear to be related to and consistent with symptoms associated with the Veteran's known orthopedic conditions.  The Veteran weighed 200 lbs. in 1997 at discharge, but has steadily gained weight since that time, reaching a weight of 275 lbs. in 2006 (is currently down to 257 lbs.).  This level of obesity contributes to an increase in symptoms associated with his orthopedic conditions.  In summary, there is no evidence to suggest that the Veteran had any complaints of or symptoms of "generalized body pain" and/or "fatigue" during his active military service (and he is already service connected for the specific disorders found to be associated with/related to his active service).

The probative evidence of record does not reflect the Veteran currently has chronic fatigue syndrome, fibromyalgia, an undiagnosed illness, or medically unexplained chronic multisymptom illness but instead shows that his complaints are attributable to diagnosed conditions as noted above.  VA examinations in June 2014 and August 2017 specifically noted that the Veteran did not have chronic fatigue syndrome, fibromyalgia, or an undiagnosed illness.  The VA examiners reviewed the claims file, considered the Veteran's history, service records, and completed a physical examination.  The examiners provided adequate rationale for the conclusions reached.  The examiners' opinions are accordingly highly probative, and may be relied on by the Board.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-04 (2008).  There is no medical opinion of record to the contrary.  
The Veteran contends that he has generalized body pain and fatigue due to his service in the Persian Gulf and his exposure to environmental hazards.  As a lay person, the Veteran has not shown that he has specialized training sufficient to render such opinions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In this case, the Veteran does not suffer from chronic fatigue syndrome, fibromyalgia, and does not have a disability manifested by fatigue that is separate and apart from his hypoxia and bipolar disorder, which have not been shown to be related to his military service.  Further the Veteran does not have a disability manifested by generalized body pain that is separate and apart from his service-connected disabilities.  Because the Veteran's fatigue and joint pain are symptoms attributed to other diagnosed disabilities, rather than a disorder in and of itself, service connection is not warranted for fatigue and joint pain.  As the preponderance of the evidence is against the Veteran's claim, service connection must be denied.  38 C.F.R. §§ 3.1, 3.102, 3.303. 3.317.


ORDER

Entitlement to service connection for a disability manifested by generalized body pain and fatigue, to include as due to undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317, is denied.





____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs