Citation Nr: 18156116 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-30 037 DATE: December 7, 2018 ORDER Entitlement to service connection for Chronic Fatigue Syndrome due to Persian Gulf War service is granted. REMANDED Entitlement to service connection for an acoustic neuroma with migraine headaches due to Persian Gulf War service is remanded. FINDING OF FACT It is at least as likely as not that the Veteran’s current Chronic Fatigue Syndrome was incurred during or caused by his service in the Persian Gulf war. CONCLUSION OF LAW The criteria for service connection for Chronic Fatigue Syndrome have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from March 1985 to March 1988, and again from September 1988 to September 1992, to include service in the Persian Gulf War. In June 2017, the Veteran provided testimony regarding his claim before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). 1. Entitlement to service connection for Chronic Fatigue Syndrome The Veteran claims entitlement to service connection for Chronic Fatigue Syndrome as due to Gulf War service. Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which 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, 2016; and 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). A “qualifying chronic disability” includes 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, and functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2)(i). 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 has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “objective indications of chronic disability” include 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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. 38 C.F.R. § 3.317 (a)(3), (4). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf veteran. 38 C.F.R. § 3.317(e). He has a current diagnosis of Chronic Fatigue Syndrome. In March 2018, the Board obtained a Veterans Health Administration (VHA) medical opinion regarding whether the Veteran’s current Chronic Fatigue Syndrome was related to his service in the Persian Gulf War. After review of the Veteran’s claims file, the specialist stated that the Veteran did serve in the Persian Gulf War, was diagnosed Chronic Fatigue Syndrome following his service, and that the etiology of Chronic Fatigue Syndrome is unknown. In turn, the specialist concluded that it was as likely as not that the Veteran’s current Chronic Fatigue Syndrome was incurred during or caused by the Veteran’s service in the Persian Gulf. Based on the above discussed VHA opinion, the Board finds that the preponderance of the medical evidence indicates that the Veteran’s current Chronic Fatigue Syndrome was incurred during or caused by his active service. Entitlement to service connection for Chronic Fatigue Syndrome is warranted, REASONS FOR REMAND 1. Entitlement to service connection for an acoustic neuroma with migraine headaches due to Gulf War service is remanded. The Veteran claims entitlement to service connection for an acoustic neuroma with migraine headaches. The Board acknowledges that the Veteran has been diagnosed with a current acoustic neuroma and has complained of and been treated for migraine headaches. At present, contradictory medical opinions have been offered regarding if the Veteran’s acoustic neuroma was caused by his Persian Gulf War service. In a July 2011 VA neurological disorders examination, the VA examiner noted: The Veteran was exposed to chemicals in Gulf War and an increased incidence of tumors has been reported in these veterans. There is not enough literature to link specifically acoustic neuroma [to Gulf War service] but it cannot be ruled out. Conversely, a March 2018 VHA medical opinion determined that it was less likely than not that the Veteran’s acoustic neuroma with migraine headaches was caused by his active service because the Veteran did not have symptoms until his acoustic neuroma was diagnosed several years after the completion of his active service. In June 2017 the Veteran testified at a hearing on his claim for service connection before the undersigned VLJ. At the hearing, the Veteran testified that he began experiencing dizziness and headaches immediately upon returning from his Persian Gulf War service. The Board further notes that the Veteran’s service treatment records note a complaint of a headache in October 1990 and complaint of dizziness and lightheadedness in September 1991. As noted above, the Veteran is competent to report symptoms observable to a layperson, including dizziness and headaches. See Davidson, 581 F.3d 1313. His statements are credible. Based on the above discussed evidence, an addendum VA medical opinion that considers all the evidence of record, including the Veteran’s June 2017 testimony, regarding the Veteran’s claim for service connection is required. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acoustic neuroma with migraine headaches is related to the Veteran’s active duty service in the Persian Gulf War. The addendum opinion should discuss the following evidence: a. the Veteran’s October 1990 and September 1991 service treatment records; b. July 2011 VA neurological disorders examination and opinion; c. Veteran’s June 2017 testimony; d. March 2018 VHA medical opinion. A complete rationale for the VA clinician’s opinion(s) must be provide in opinion. If the above requested opinion cannot be made without resort to speculation, the VA clinician must state this and provide a rationale for such conclusion. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel