Citation Nr: 1802619 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 99-01 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for fatigue, to include chronic fatigue syndrome, and to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 2. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1992, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 1999, the Veteran testified at a hearing before a Decision Review Officer. In April 2008, he testified during a Board videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In a September 2013 decision, the Board denied service connection for chronic fatigue syndrome and remanded the issue of entitlement to service connection for a gastrointestinal disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In a September 2014 Order, the Court granted the parties' August 2014 Joint Motion for Remand (JMR). The Board's September 2013 decision on the chronic fatigue syndrome was vacated and remanded for action in accordance with the JMR. The Board has remanded the appeal for further development, most recently in July 2017. As a final preliminary matter, as noted in the prior Board remand, in the August 2013 Appellant's Brief, the Veteran's representative raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). This claim has not been addressed by the agency of original jurisdiction (AOJ). As such, it is not properly before the Board and is again referred to the AOJ for appropriate action. The issue of entitlement to service connection for a gastrointestinal disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT The Veteran's chronic fatigue syndrome is a qualifying chronic disability resulting from undiagnosed illness due to his Persian Gulf service. This disability can at least be rated as compensable. CONCLUSION OF LAW The Veteran's chronic fatigue syndrome is presumed to have been incurred during his Persian Gulf service. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In addition, presumptive service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2016. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(2). The Veteran's military personnel records, including his DD Form 214, confirm that he served in the Southwest Asia theater of operations during the requisite time period. 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. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome and fibromyalgia as well as functional gastrointestinal disorders. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Presumptive service connection is not warranted under 38 C.F.R. § 3.317 for a chronic disability if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or if there is affirmative evidence that the disability is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims entitlement to service connection for chronic fatigue syndrome, to include as an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. He stated that, after serving in the Persian Gulf, he experienced fatigue and that these symptoms have continued to the present. Review of the Veteran's service treatment records note the Veteran's complaints of fatigue. See June 1989 Service Treatment Record. During a September 1993 VA examination, the Veteran reported a history of chronic fatigue since discharge that had progressively worsened. The diagnostic impression was history of chronic fatigue. A November 1993 VA Gulf War examination notes a diagnosis of fatigue. May, June, and July 1994 VA treatment records note a questionable impression of chronic fatigue syndrome. An October 1996 VA treatment record noted a diagnosis of chronic fatigue. A June 1997 VA examination noted the Veteran's report of fatigue which began after his return from the Persian Gulf. He was diagnosed with chronic fatigue, and the examiner noted that there were features relevant to chronic fatigue syndrome. A July 1997 VA examination noted a history of chronic fatigue syndrome. A September 1997 VA treatment record noted a diagnosis of fatigue, with a question of chronic fatigue syndrome. A January 1998 VA treatment record noted an impression of fatigue. A May 1998 VA treatment record noted a questionable impression of chronic fatigue. In his December 1998 substantive appeal, the Veteran stated that he did not experience fatigue prior to service. A March 1999 VA treatment record noted that the Veteran's chronic fatigue was getting worse. In May 1999, the Veteran testified that he began experiencing problems with fatigue while on active duty, and that the symptoms he currently experienced were the same symptoms he experienced during active duty. In April 2008, the Veteran testified before the undersigned Veterans Law Judge. The Veteran testified that, after returning from the Persian Gulf, be noticed that he was tired and sleeping half of the day. See April 2008 Hearing Transcript, pp. 6-7. A January 2010 VA examiner attributed the Veteran's symptoms of fatigue to his impaired glucose tolerance. In December 2011, the Veteran underwent another VA examination. The examiner noted his complaints of in-service fatigue, as well as post-service treatment for chronic fatigue syndrome or possible chronic fatigue syndrome. The examiner noted a diagnosis of chronic fatigue syndrome since 1993, however, the examiner concluded that the Veteran no longer met the guidelines for chronic fatigue syndrome. The examiner also noted that the Veteran's impaired glucose tolerance and anxiety/phobias would also cause fatigue. In June 2013, the Veteran underwent another VA examination. The examiner noted that he has not been diagnosed with chronic fatigue syndrome. The examiner also noted his reports of fatigue since returning from the Persian Gulf in 1991. The examiner concluded that the Veteran did not meet the criteria for chronic fatigue syndrome, but that his chronic was at least as likely as not related to his military service as a symptom of his service-connected acquired psychiatric disorder. An April 2017 VA examiner concluded that the Veteran did not meet the criteria for chronic fatigue syndrome, and that his chronic fatigue could be attributed to his service-connected acquired psychiatric disorder, obesity, and diabetes mellitus and, sedentary lifestyle. A September 2017 VA examiner concluded that the Veteran did not meet the criteria for chronic fatigue syndrome, and that his chronic fatigue could be attributed to his service-connected acquired psychiatric disorder, obesity, and diabetes mellitus and impaired glucose tolerance. Based on the evidence of record, and after resolving all benefit of the doubt in the Veteran's favor, the Board finds that service connection for chronic fatigue syndrome is warranted. Specifically, the Board finds that the evidence is in relative equipoise as to whether his chronic fatigue symptomatology meets the criteria for a diagnosis under 38 C.F.R. § 4.88a, and also whether his fatigue is related to his service in Southwest Asia. With regard to the diagnosis of chronic fatigue syndrome, although the VA examiners determined that a separate diagnosis of chronic fatigue syndrome was not appropriate, the Veteran's VA treatment records beginning in November 1993 note an impression of chronic fatigue. See, e.g., November 1993 VA Medical Certificate; June 1994 VA Treatment Record; March 1999 VA Treatment Record. With regard to whether his chronic fatigue syndrome is presumptively related to his service in Southwest Asia, the Board notes that the evidence of record, including the VA examinations of record, attributes his chronic fatigue to various sources, including diabetes mellitus and impaired glucose tolerance; his service-connected acquired psychiatric disorder; obesity; and his sedentary lifestyle. The conflicting evidence as to the etiology of the Veteran's chronic fatigue syndrome demonstrates a lack of affirmative evidence as required by 38 C.F.R. § 3.317(a)(7), to overcome the presumption of service connection. Therefore, the claim for service connection for chronic fatigue syndrome is granted pursuant to 38 U.S.C. § 1117; 38 C.F.R. § 3.317. ORDER Service connection for chronic fatigue syndrome is granted. REMAND In July 2017, the Board remanded the Veteran's claim for a new VA opinion to address whether any gastrointestinal disorder present since September 1996 was related to his military service. Additionally, the examiner was to address whether any gastrointestinal disorder present since September 1996 was secondary to his service-connected disabilities, including his acquired psychiatric disorder, vertigo, lumbar spine, cervical spine, bilateral knee, athlete's foot, and fibromyalgia. Although an opinion was provided in September 2017, as the Board has granted service connection for chronic fatigue syndrome, an addendum opinion is necessary to address whether any gastrointestinal disorder present since September 1996 is secondary to his now service-connected chronic fatigue syndrome. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the September 2017 VA opinion. The record and a copy of this Remand must be made available to the examiner. If the September 2017 VA examiner is not available, the claims file should be provided to another medical professional to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner must account for the Veteran's reported in-service symptoms, which included blood in his stool and nausea, and recognize the ongoing nature of such symptoms until 2007, as reported by the Veteran at his 2008 hearing. The examiner should render an opinion as to whether any gastrointestinal disorder present at any time since September 1996 (even if now resolved) was caused or aggravated (worsened beyond the natural progression) by the Veteran's service-connected chronic fatigue syndrome. The examiner must consider all relevant evidence of record in rendering any opinion, and the supporting rationale for all opinions expressed must be provided. 2. Thereafter, and after any further development deemed necessary, the issue on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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). 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. §§ 5109B, 7112 (2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs