Citation Nr: 1802893 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-04 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for chronic fatigue syndrome. 3. Entitlement to service connection for joint pain of the knees, to include as due to an undiagnosed illness. 4. Entitlement to service connection for joint pain of the ankles, to include as due to an undiagnosed illness. 5. Entitlement to service connection for blurred vision, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1993. He had service in the Southwest Asia Theater of Operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before the undersigned at an August 2015 hearing. A transcript of that hearing is of record. The issues of entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and joint pain are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The preponderance of the evidence is against a finding that the Veteran currently has a blurred vision disability. CONCLUSION OF LAW The criteria for service connection for blurred vision, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3, 309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated in April 2010. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided a VA examination in May 2017. The examiner reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the VA examination report is adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a service connection for a 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 between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service personnel records show that he served in the Southwest Asia Theater of Operations and was awarded the Southwest Asia Service Medal. Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017). The chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a), (b) (2017). Pursuant to 38 U.S.C. § 1117, the definition of qualifying chronic disability includes (a) undiagnosed illness, (b) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, and (c) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2) (2017). Objective indications of a qualifying chronic disability include both signs, in a 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) (2017). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multisymptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C.A. § 1117(g)(2017). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). Blurred Vision The Board notes that the Veteran originally filed a claim for head problems, to include blurred vision and dizziness. At an August 2015 hearing, the Veteran reported that he experienced dizziness sometimes accompanied by sore eyes. The Veteran established service connection for dizziness. Service medical records are silent as to complaints, treatment, or diagnoses related to blurred vision. Reports of medical examination at enlistment and separation indicate the Veteran had no reduction in vision in either eye. June 1992 service medical records show a complaint of headache, which was attributed to the flu. August 2004 VA medical records show complaints of headaches, which were assessed as non-ocular in etiology. The examiner reported assuring the Veteran that his eyes were in good condition. In October 2015 VA medical records, the Veteran complained of blurry distance vision. The examiner assessed a refractive error. At an April 2017 VA examination, the examiner opined that the Veteran did not have blurred vision. The Veteran needed glasses for distance vision, but the examiner stated that the need for glasses is not a disability. The examiner also stated that the Veteran did not have a reduction in vision, and there were no objective indications of any chronic disability related to the eyes. The examiner stated that the need for glasses due to developmental disorders of refraction and accommodations and wore glasses. The Board finds that the preponderance of the evidence is against a finding that the Veteran currently has blurred vision or any eye disability. The first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, has not been met. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for blurred vision, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for blurred vision is denied. REMAND The Board finds that additional development is required for the claims for service connection for chronic fatigue syndrome, fibromyalgia, and joint pains. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. The Board remanded the claims for chronic fatigue syndrome, fibromyalgia and joint pains in February 2017 for further development, specifically to obtain medical opinions which reconciled prior inconsistencies and which addressed undiagnosed illness as an etiology of the Veteran's claimed disabilities. A review of the record shows the requested medical opinions were obtained in May 2017. The Board finds that all directives were not completed. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claim must be again remanded to complete the requests in the February 2017 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, regarding chronic fatigue syndrome, in the February 2017 remand, the Board directed the VA examiner to reconcile a contradictory opinion provided in a May 2010 VA examination, which stated that the Veteran had a diagnosis of chronic fatigue syndrome, but also stated the Veteran did not have symptoms that met at least 6 out of 10 of the diagnostic criteria for chronic fatigue syndrome. The May 2017 examiner did not reconcile the previous contradictory opinion. Further, the May 2017 examiner stated that the Veteran did not have chronic fatigue syndrome, but then listed symptoms attributable to chronic fatigue syndrome in the report, including generalized muscle aches and weakness, migratory joint pains, and sleep disturbance. The Board finds that opinion to be contradictory. Regarding the claim for fibromyalgia, the May 2017 VA examiner stated that the Veteran did not have a diagnosis of fibromyalgia, but listed current findings, signs, or symptoms attributable to fibromyalgia in the medical report, including fatigue, sleep disturbances, depression, and irritable bowel syndrome. The Board finds that opinion to be contradictory. Finally, regarding the claims for joint pain in the knees and ankles, the February 2017 remand directed the VA examiner to specifically address a June 1992 service medical record. A review of the May 2017 VA examination for the knees and ankles shows the examiner did not discuss the June 1992 service medical record. Further, the Board finds that a new examination is necessary to consider the Veteran's claims for joint pain and the claim for fibromyalgia. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record, and associate them with the record. 2. Schedule the Veteran for a VA examination to determine if he has a qualifying chronic disability under the provisions of 38 C.F.R. § 3.317, such as an undiagnosed illness, or a medically unexplained chronic multi-symptom illness, manifested by joint pain or fatigue, or whether those symptoms may be attributed to other cause or diagnosis, to include sleep apnea, depression, or arthritis. The examiner should address both the complaints of joint pain and fatigue, including complaints in a June 1992 service medical record. The examiner must review the record and should note that review in the report. The examiner should provide the following information: (a) Is it at least as likely as not (50 percent probability or greater) that there are objective signs or indicators showing that the Veteran has a disability manifested by fatigue, including chronic fatigue syndrome? (b) If so, can that disability manifested by fatigue be attributed to any known medical causation? Please reconcile the findings and opinions of the May 2010 and May 2017 VA examiners regarding chronic fatigue syndrome and consider a June 1992 service medical record. Discuss the requirements for a diagnosis of chronic fatigue syndrome and specifically discuss whether or not the Veteran meets those requirements. (c) Is it at least as likely as not (50 percent probability or greater) that there are objective signs or indicators showing that the Veteran has a disability manifested by joint pain, including fibromyalgia? Discuss the requirements for a diagnosis of fibromyalgia and specifically discuss whether or not the Veteran meets those requirements. (d) If so, can that disability manifested by joint pain be attributed to any known medical causation? Please reconcile the findings and opinions of the May 2017 VA examiner regarding fibromyalgia and consider a June 1992 service medical record. (e) Is it at least as likely as not (50 percent probability or greater) that any disability manifested by fatigue or joint pain, including chronic fatigue syndrome or fibromyalgia, was incurred in or is related to service? (f) Can any disability manifested by joint pain of the knees or ankles be attributed to a known medical causation? 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs