Citation Nr: 1800062	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  13-17 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for chronic fatigue syndrome, to include as due to service in the Southwest Asia Theater of Operations during the Persian Gulf War.

2.  Entitlement to service connection for fibromyalgia, to include as due to service in the Southwest Asia Theater of Operations during the Persian Gulf War.

3.  Entitlement to service connection for neurological symptoms in the left upper extremity, to include as due to undiagnosed illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War.

4.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

5.  Entitlement to nonservice-connected pension.

6.  Entitlement to service connection for a psychosis or mental illness for the purpose of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C. § 1702.

7.  Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

A notice of disagreement was received in February 2012, a statement of the case was issued in May 2013, and a substantive appeal was received in June 2013.

In August 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.

The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran had no service in the Southwest Asia Theater of Operations during the Persian Gulf War.

2.  The Veteran has not been diagnosed with chronic fatigue syndrome.

3. The Veteran has not been diagnosed with fibromyalgia.

4.  A preponderance of the evidence is against finding that the Veteran has been diagnosed with a disability manifested by neurological symptoms in the left upper extremity.

5.  The Veteran has not been diagnosed with PTSD that is due to a verified stressor, and he has not otherwise been diagnosed with an acquired psychiatric disability that has been related to service.

6.  Throughout the appeals period, the Veteran's countable annual income for VA pension purposes has been in excess of the established income limit for nonservice-connected pension; he is currently employed as a chef and so he is not permanently and totally disabled from nonservice-connected disability. 

7.  The Veteran did not develop an active psychosis or mental illness within two years after his release from active service.





CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for chronic fatigue syndrome have not been met.  38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).

2.  The criteria for establishing service connection for fibromyalgia have not been met.  38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).

3.  The criteria for establishing service connection for neurological symptoms in the left upper extremity have not been met.  38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).

4.  The criteria for establishing service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125 (2017).

5.  The eligibility criteria for nonservice-connected pension have not been met.  38 U.S.C. § 1521; 38 C.F.R. § 3.3.

6.  The criteria for establishing entitlement to service connection for psychosis or mental illness for the purpose of establishing eligibility for treatment have not been met.  38 U.S.C. § 1702 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duty to notify was satisfied by letters that were sent to the Veteran in February 2011, April 2011, and July 2011.  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).  

All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist.  38 U.S.C. § 5103A.

I.  Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).

To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, 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).

Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air 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; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317.

The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War.  The "Southwest Theater of Operations" refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Aragia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e).  

At his Board hearing, the Veteran testified that he served during Operation Desert Storm in Saudi Arabia and Iraq.  However, his service personnel records reflect that his only foreign service was in Germany, and there is no indication that he served in the Persian Gulf.  

Therefore, any presumptions that are available to Persian Gulf veterans are not available to the Veteran in this case.

A. Chronic Fatigue Syndrome, Fibromyalgia, and Neurologic Symptoms

The claims of entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and neurologic symptoms (claimed as involving the left upper extremity) must be denied based on the absence of current diagnoses.  The May 2011 VA examination report reflects that these conditions were expressly evaluated, and the examiner found no current diagnoses were warranted.  The Veteran's post-service medical records do not reflect current diagnoses of fibromyalgia or chronic fatigue syndrome.

While a June 2011 VA medical record notes that the Veteran sought treatment for "left ulnar neuropathy pain ... for months," electromyography (EMG) and nerve conduction velocity (NCV) testing for these symptoms that was conducted in May 2011 was normal.  The report expressly noted that there was "[n]o evidence of ulnar neuropathy across the left wrist."  The Board finds that this report, in which no current disability is found, is more probative than the June 2011 record's indication of an ulnar neuropathy diagnosis that is based on no discernable testing.

Because the Veteran is not entitled to the presumptions for Persian Gulf veterans, the provisions concerning undiagnosed illnesses do not apply.  

In order to be considered for service connection, a claimant must first have a disability.  38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Veteran is competent to report on symptoms, he is not competent to diagnose complex medical conditions such as chronic fatigue syndrome and fibromyalgia, and he is not competent to diagnose a neurological condition affecting the upper extremity.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  In the case at hand, entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and neurologic symptoms of the left upper extremity must be denied due to a lack of current diagnoses.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied.

B.  PTSD

The claim of entitlement to service connection for PTSD must be denied due to the absence of a verified, qualifying stressor.  At his May 2011 VA PTSD examination, the Veteran described a stressor involving having been on a bus in Iraq.  The bus had a flat tire in an area full of dead bodies due to previous combat in the area.  This examination report notes that the Veteran served during Desert Storm in Iraq.  The examiner gave a positive etiology opinion based on this stressor event.  However, as described above, the Veteran never served in Iraq.  Therefore, a reported stressor based on service in Iraq is not deemed to be credible.  

The Veteran has not otherwise provided credible testimony or evidence of a qualifying stressor.  

In light of the above, the Board finds that service connection for PTSD must be denied.

In addition, the Veteran testified at his hearing that, during his time in service, he found out that his stepfather died and that he experienced some depression.  However, there is no current diagnosis of depression.  Furthermore, the Veteran's service treatment records reflect that he never complained of or sought treatment for symptoms associated with depression, and he expressly denied any past or current depression on his August 1993 separation medical history report.  The issue of whether a lay person is competent to diagnose depression and opine as to its cause is not unique to veterans law. See generally Restatement (Third) of Torts: Phys. & Emot. Harm, § 4 (2010) (reviewing evidentiary rulings on proving the existence of emotional harm and its likely causes from several jurisdictions). To the extent that other courts have addressed the weight to be given to lay evidence on this issue, the Board finds the logic and reasoning of these cases useful. Generally, courts have required objective indicia or "some guarantee of genuineness" sufficient to verify the existence of a mental injury or emotional harm. Johnson v. State, 334 N.E.2d 590, 592 (N.Y. 1975). The rationale given for this rule is that mental disturbance is easily simulated. The requirement of objective indicia may be met by clear medical proof of the existence of the claimed injury. The Board concludes that this rule is compatible with the veterans benefits system. VA regulations already require medical proof that psychoses and posttraumatic stress disorder are diagnosed in conformity with the medical standards contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, Fifth Ed. See 38 C.F.R. §§ 3.304 (f), 3.384, 4.125(a) (2017). Although the Board recognizes that a lay person may competently report subjective feelings, the Board looks to the medical evidence of record to determine whether a current psychiatric disability exists, and whether it is etiologically related to service. Here, there is no medical opinion evidence diagnosing the Veteran with a chronic depressive disorder and linking such disorder to his active duty military service.  Therefore, he has not demonstrated entitlement to service connection for a psychiatric disability other than PTSD.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

II.  Nonservice Connected Pension

Pursuant to 38 U.S.C. § 1521(a), improved (nonservice-connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct.  Basic entitlement to improved pension exists if, among other things, a veteran's income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register.  See 38 U.S.C. § 1521; 38 C.F.R. § 3.3 (a)(3).  

The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran.  38 U.S.C. § 1521; 38 C.F.R. § 3.23(b). In determining countable annual income for improved pension purposes, all payments of any kind or from any source shall be included except for listed exclusions.  See 38 U.S.C. § 1503(a); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a), 3.272.

In the case at hand, the Veteran testified that he works 38 to 40 hours per week as a cook at Hominy Grill.  His representative explained to the Veteran that he is disqualified from receiving nonservice connected pension if he earns more than approximately $1072 per month.  The Veteran did not dispute this characterization of his income.  (See Board hearing transcript, pages 32-34.)  In any event, the Veteran is employed so he is not permanently and totally disabled from nonservice-connected disability.  

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

III.  Entitlement to Benefits Pursuant to 38 U.S.C. § 1702

Notwithstanding the Board's decision above denying service connection for an acquired psychiatric disorder, VA laws and regulations allow for service connection solely for eligibility for medical treatment for psychosis or mental illness under certain conditions.

(At the Board hearing, the Veteran's representative indicated that this issue is moot because the Veteran is already receiving all of his treatment through VA.  Because it is unclear to the Board whether this treatment includes mental health treatment, the Board will not dismiss this issue as moot at this time.)

Under 38 U.S.C.A. § 1702(a), any veteran of the Persian Gulf War who developed an active psychosis within two years after discharge or release from the active military, naval, or air service before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service.  Under 38 U.S.C.A. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed (1) within two years after discharge or release from active service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War.

The Board has already determined that the Veteran does not have the requisite service in the Southwest Asia Theater of Operations during the Persian Gulf War to satisfy the 38 C.F.R. § 3.317(e) definition of "Persian Gulf veteran."  In any event, service treatment records and post-service medical evidence reflect that the Veteran did not develop a psychosis or active mental illness within two years after his release from active service.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.
 

ORDER

Entitlement to service connection for chronic fatigue syndrome, to include as due to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

Entitlement to service connection for fibromyalgia, to include as due to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

Entitlement to service connection for neurological symptoms in the left upper extremity, to include as due to an undiagnosed illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

Entitlement to service connection for PTSD is denied.

Entitlement to nonservice-connected pension is denied.

Entitlement to service connection for a psychosis or mental illness for the purpose of establishing eligibility for medical treatment only pursuant to the provisions of 38 U.S.C. § 1702 is denied.


REMAND

The Veteran has also claimed entitlement to service connection for headaches.  His service treatment records reflect that he reported headaches at separation, noting that his "head hurts mostly all the time."  (See August 1993 separation medical history report.)  The May 2011 VA general medical examination report diagnoses tension headaches but provides no etiology opinion.  The Board finds it necessary to remand this issue in order to obtain an etiology opinion. 

While this case is on remand, the AOJ should obtain all outstanding VA medical records and associate them with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA medical records and associate them with the claims file.

2.  Following completion of the above, schedule the Veteran for an appropriate VA examination in regard to the headache claim.  The Veteran's file should be made available for review by the examiner.  The examiner should review the file and this fact should be noted in the accompanying medical report.

The examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current headache disability is related to his military service.  In providing this opinion, the examiner should discuss the indications of a headache disability in the Veteran's service treatment records.

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3.  After the development requested above has been completed, again review the record and readjudicate the issue on appeal.  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.  Thereafter, the case should be returned to the Board, if in order.  

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

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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs