Citation Nr: 1805780 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-02 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 2. Entitlement to service connection for a disability manifested by irritable bowel syndrome, claimed as gastrointestinal symptoms, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 3. Entitlement to service connection for a disability manifested by myalgia, claimed as chronic widespread pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1988 to February 2000 that included service in Southwest Asia from December 1990 to February 1992. He was awarded the Kuwait Liberation Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the Veteran perfected an appeal as to the denial of service connection for all three issues, namely, for a disability manifested by chronic fatigue, irritable bowel syndrome, and myalgia. See February 2014 VA Form 9. Subsequently, a Supplemental Statement of the Case (SSOC) was promulgated in February 2015 and these three issues were certified to the Board later that month. See VA Form 8. In response to the February 2015 SSOC, the Veteran submitted another VA Form 9 in March 2015 specifying that he wished only to appeal the denial of service connection for irritable bowel syndrome. However, because the Veteran did not specifically state that the other two issues were withdrawn, the criteria for doing so are not met. Consequently, the Board will retain jurisdiction of all three issues currently before the Board. The Board further notes that the Veteran is not prejudiced by this ruling as will be laid out more fully below. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the AOJ, the Board must consider the potential for prejudice to the appellant). FINDINGS OF FACT 1. A disability manifested by chronic fatigue has been shown to be caused or related to the Veteran's active military service. 2. A disability manifested by irritable bowel syndrome, claimed as gastrointestinal symptoms, has been shown to be caused or related to the Veteran's active military service. 3. A disability manifested by myalgia, claimed as chronic widespread pain, has been shown to be caused or related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by chronic fatigue to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2017). 2. The criteria for service connection for a disability manifested by irritable bowel syndrome, claimed as gastrointestinal symptoms, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2017). 3. The criteria for service connection for a disability manifested by myalgia to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran contends that his chronic pain disabilities are due to his military service. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of: (1) 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. See Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that 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, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, 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). Notably, laypersons are competent to report objective signs of illness. 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. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c). As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature. The Veteran does not allege, and the record does not suggest, that she has any of the listed diseases. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed 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). Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of what are identified as medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4), which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, and claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61, 997 (Oct. 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness 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 during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Chronic Fatigue The Veteran contends that his chronic fatigue is due to his active military service. See July 2010 claim, VA form 21526. He reports that he has had worsening fatigue related symptoms beginning in 2009 that have been gradually getting worse. See, e.g., October 2010 VA examination. The Veteran served in Kuwait during the Persian Gulf War from December 1990 to February 1992 and therefore is eligible for consideration for service connection on a presumptive basis due to this service. The Veteran was provided a VA examination in October 2010 in which the VA examiner found objective signs and subjective reports of fatigue, to include chronic fatigue, daytime sleepiness, generalized weakness, and lack of stamina. The VA examiner did not diagnose the Veteran with chronic fatigue syndrome; instead, he was diagnosed with obstructive sleep apnea. However, the Board concludes that this evidence is not fatal to the Veteran's claim. Specifically, although the October 2010 opinion addresses certain medical matters pertinent to the Veteran's claim, what is not addressed is whether the demonstrated and reported symptoms involving fatigue qualify as signs or symptoms of a medically unexplained chronic multisymptom illness within the meanings of 38 U.S.C. § 1117(g) and 38 C.F.R. § 3.317(a)(2)(ii). In light of the above, the Board concludes that the medical evidence of record reflects that, after his separation from service and for a period of at least six months, the Veteran, who meets the VA's definition of a Persian Gulf Veteran, experienced chronic fatigue, daytime sleepiness, generalized weakness, and lack of stamina, of an unknown etiology rather than separate, diagnosable disabilities. Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021. As such, service connection for chronic fatigue, daytime sleepiness, generalized weakness, and lack of stamina as fatigue related signs and/or symptoms of a medically unexplained chronic multisymptom illness is warranted. 38 C.F.R. § 3.317. B. Irritable Bowel Syndrome Claimed as Gastrointestinal Symptoms The Veteran also contends that his irritable bowel syndrome claimed as gastrointestinal symptoms is due to his active military service. See July 2010 claim, VA form 21526. He reports problems dating from 1991 until the present. See, e.g., October 2010 VA examination. In the Veteran's October 2010 VA examination, the VA examiner noted subjective complaints of episodic diarrhea associated with abdominal cramps and bloating. The VA examiner diagnosed the Veteran with irritable bowel syndrome but opined that it was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia because the Veteran complains of symptoms dating when he returned from active service and there is no evidence of any symptoms occurring in-service or within one year of active military service. However, the Board notes that this evidence is not fatal to the Veteran's claim. Specifically, although the October 2010 opinion addresses certain medical matters pertinent to the Veteran's claim, what is not addressed is whether the diagnosis qualifies as a chronic disability resulting from a functional gastrointestinal disorder within the meaning of 38 C.F.R. § 3.317(a)(2)(i)(B)(3). In light of above, the Board concludes that the medical evidence of record reflects that, after his separation from service and for a period of at least six months, the Veteran, who meets the VA's definition of a Persian Gulf Veteran, experienced objective indications of a chronic disability resulting from irritable bowel syndrome, a type of functional gastrointestinal disorder as defined by 38 C.F.R. § 3.317. Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021. As such, service connection for the Veteran's irritable bowel syndrome claimed as gastrointestinal symptoms is warranted. 38 C.F.R. § 3.317. C. Myalgia The Veteran contends that his myalgia claimed as chronic widespread pain is due to his active military service. See July 2010 claim, VA form 21526. He reports that he has noticed muscle aches since returning from Southwest Asia during active service in 1991 with more noticeable signs since 2000. The Veteran also reports muscle stiffness, weakness and pain in multiple joints with lack of energy and physical fatigue. In the Veteran's October 2010 VA examination, the VA examiner diagnosed him with myalgia and made objective physical findings associated with his diagnosis including musculoskeletal symptoms of pain, stiffness, muscle weakness, and achiness. The VA examiner opined that the Veteran did not have fibromyalgia and instead opined that his myalgia was less likely as not related to a specific exposure event experienced by the Veteran during service in the Southwest Asia because there is no evidence of in-service symptoms and symptoms started when the Veteran returned home in 1991. However, the Board once again concludes that this evidence is not fatal to the Veteran's claim. Specifically, although the October 2010 opinion addresses certain medical matters pertinent to the Veteran's claim, what is not addressed is whether the demonstrated and reported symptoms involving the muscles and joints qualify as signs or symptoms of a medically unexplained chronic multisymptom illness within the meanings of 38 U.S.C. § 1117(g) and 38 C.F.R. § 3.317(a)(2)(ii). In light of the above, the Board concludes that the medical evidence of record reflects that, after his separation from service and for a period of at least six months, the Veteran, who meets the VA's definition of a Persian Gulf Veteran, experienced musculoskeletal symptoms of pain, stiffness, muscle weakness, and achiness, of an unknown etiology rather than separate, diagnosable disabilities. Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021. As such, service connection for musculoskeletal symptoms of pain, stiffness, muscle weakness, and achiness as signs and/or symptoms involving the muscles and joints of a medically unexplained chronic multisymptom illness is warranted. 38 C.F.R. § 3.317. Given its review of the record, the Board finds the evidence to be at least in equipoise in showing that the Veteran's disabilities are at least as likely as not related to his active military service. In resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's chronic disabilities is warranted. ORDER Service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted. Service connection for a disability manifested by irritable bowel syndrome, claimed as gastrointestinal symptoms, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted. Service connection for a disability manifested by myalgia, claimed as chronic widespread pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs