Citation Nr: 1807738 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-00 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic fatigue. 2. Entitlement to service connection for a pituitary tumor status post resection. 3. Entitlement to service connection for headaches, to include as due to a pituitary tumor status post resection. 4. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 21, 1961 to April 1965. He served on active duty in the United States Army from December 1967 to August 1973; and from October 1990 to May 1991. He served in the Army National Guard on full time training duty (FTTD) from September 1986 to April 1987. He had periods of active duty for training (ADT/ACDUTRA) from May 13, 1988 to July 25, 1988, and from January 23, 1961 to April 20, 1961. This matter is before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Veteran appeared at a videoconference Board hearing before the undersigned Veterans Law Judge in April 2014. In a June 2014 decision, the Board reopened and granted a claim of service connection for a back disability, reopened and remanded a claim of service connection for hearing loss, along with service connection claims for arthralgia, fatigue, a pituitary/brain tumor, headaches, and a respiratory disability, as well as the claim for an initial rating higher than 30 percent for PTSD, for additional development. In a June 2016 rating decision, service connection for bilateral hearing loss was granted. In a July 2016 rating decision, service connection for arthritis of the bilateral feet and chronic obstructive pulmonary disease was granted. In an April 2017 rating decision, service connection for tinnitus was granted. The decisions represent a full grant of the benefits sought with respect to those issues. In addition, the Board finds that the record raises a claim for a TDIU in the July 2016 VA PTSD examination report. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a TDIU is part and parcel of an increased rating claim, the issue is reflected on the title page. The issue of entitlement to service connection for chronic fatigue is addressed in the decision below. The issues of entitlement to service connection for a pituitary tumor status post removal and headaches, along with the increased rating claim for the service-connected psychiatric disorder and a TDIU, are addressed in the remand following the decision. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has objective indications of chronic disability resulting from illness manifested by chronic fatigue that were not attributed to any known clinical diagnosis. CONCLUSION OF LAW The criteria for service connection for an undiagnosed illness manifested by chronic fatigue are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "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 between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A qualifying chronic disability can be a chronic disability resulting from a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs of symptoms, such as chronic fatigue syndrome and fibromyalgia. 38 C.F.R. § 3.317(a)(2)(i)(B). II. Analysis The Veteran seeks service connection for chronic fatigue. He maintains that disability manifested by chronic fatigue had its onset as a result of service in the Persian Gulf. The Veteran's service records reflect service in the Southwest Asia theater of operations during the Persian Gulf War. Thus, the provisions of 38 C.F.R. § 3.317 are applicable. A July 2016 VA examination report notes an acute onset of chronic fatigue, tiredness, and lack of energy following the Veteran's deployment to Southwest Asia in 1991, with symptoms ever since. Both the July 2015 and July 2016 VA reports note debilitating fatigue resulted in periods of incapacitation. Although both the August 2010 and July 2016 VA examiners noted that the Veteran's fatigue did not fit a chronic fatigue syndrome pattern, the July 2016 VA examiner determined that the etiology of the fatigue was unclear. Also, although the examiner did not diagnosis chronic fatigue syndrome, he marked many of the aspects listed for chronic fatigue syndrome. The Board notes that the notation in the July 2016 VA examination report to the effect that fatigue was complicated by pituitary resection in 1999 establishes neither a clinical diagnosis nor a supervening condition. In addition, and to the extent that fatigue associated with other diagnosed medical conditions has been noted, the degree of impairment due to fatigue associated with the qualifying chronic disability manifested by fatigue is for consideration in association with the disability rating assigned following the RO's implementation of the grant of service connection. In this case, the Board finds that the Veteran's credible testimony, together with the lack of a diagnosis for his chronic fatigue, supports a finding that he has a qualifying chronic disability manifested by fatigue. Fatigue, rather than chronic fatigue syndrome, is specifically listed under 38 C.F.R. § 3.317(b)(1). Therefore, the grant is for direct service connection rather than on a presumptive basis, obviating the need to address the time at which fatigue became 10 percent or more disabling. The evidence is in favor of the claim, particularly when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, service connection for a qualifying chronic disability manifested by fatigue is warranted. ORDER Service connection for chronic fatigue due to an undiagnosed illness is granted. REMAND The Veteran asserts that a pituitary tumor and associated headaches are due to service, to include exposure to asbestos and herbicides, such as Agent Orange, during service in Vietnam, and/or due to an undiagnosed illness or a medically unexplained multisymptom illness as a result of service in Southwest Asia. As reflected in the Board's June 2014 remand, the Veteran's service personnel records establish service in Southwest Asia during the Persian Gulf War. Thus, he is a Persian Gulf Veteran for the purposes of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In addition, a June 2016 record reflects that the National Personnel Records Center (NPRC) verified service in Vietnam, based on additional service records associated with the file, to include a January 1973 Department of the Army (DA) Form 483. Thus, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange, during service. 38 C.F.R. §§ 3.307, 3.309 (e). Further, service personnel records establish service at Camp Lejeune, North Carolina, to include from 1963 to 1965. As the Veteran served on active duty for more than 30 consecutive days at Camp Lejeune, he is presumed to have been exposed to contaminated drinking water during service. See 38 U.S.C. § 1710; 38 C.F.R. §§ 3.307, 3.309(f). As amended, 38 C.F.R. §§ 3.307 and 3.309 include eight diseases that are presumed to be the result of exposure to Camp Lejeune base water, including: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder, kidney or liver cancers, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Pituitary tumors are not among the disorders that are presumptively linked to contaminated water. The Board notes that none of the presumptive provisions above preclude the Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Although the pituitary tumor was removed in December 1999, the Veteran maintains that he continues to have associated headaches. The August 2010 VA examiner opined that headaches were not an unexplained illness or part of a chronic multisymptom illness. Although the July 2016 VA examiner reported insufficient Gulf War medical literature attributing pituitary tumor development to exposures during service in Southwest Asia, the development of headaches was reported to be after service in Southwest Asia and prior to the pituitary resection in 1999. An opinion was not provided with respect to whether the development of the pituitary tumor was related to exposure to contaminated water at Camp Lejeune. As such, the opinion is not completely adequate for a determination. Thus, a medical opinion must be obtained as to whether the development of the pituitary tumor was caused or etiologically due to exposure to contaminated water while serving at Camp Lejeune. As the claim of service connection for headaches on a secondary basis is contingent upon a first award of service connection for a pituitary tumor, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, the issue of entitlement to service connection for headaches must also be remanded. With respect to the Veteran's service-connected psychiatric disorder, and although the July 2016 chronic fatigue syndrome report reflects a diagnosis of PTSD with depression, the July 2016 PTSD examination report notes that the Veteran no longer meets the criteria for a diagnosis of PTSD, but instead for a diagnosis of reaction to severe stress, unspecified (ICD Code: F43.9), which was noted to be a natural progression of the Veteran's previous diagnosis of PTSD. In addition, the July 2016 VA PTSD examination report notes that the Veteran retired due to age and fatigue, and although the examiner determined that the Veteran's service-connected psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, the July 2016 VA central nervous system and neuromuscular diseases examination report states that the Veteran had depression, cognitive impairment or dementia, and/or some other mental health conditions. Although manifestations reported to be potentially related to secondary conditions affecting vitality as a result of pituitary surgery were noted to likely affect mood, sleep, and physical conditioning, it is not completely clear whether any of the symptoms are attributable to the Veteran's service-connected psychiatric disorder. As such, a new VA examination is warranted in order to reconcile all diagnoses of record and attempt to differentiate the nature or extent of the service-connected psychiatric disabilities from any nonservice-connected psychiatric diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim. Thus, it must be remanded as well. See Harris, 1 Vet. App. at 183. The RO will have an opportunity to develop the issue in the first instance. Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. Accordingly, these issues are REMANDED for the following actions: 1. Send the Veteran the standard TDIU application form and ask him to return it. 2. Obtain complete VA treatment records since July 2016. 3. Obtain an addendum VA medical opinion with respect to the etiology of the Veteran's pituitary tumor by an appropriate medical professional. The claims file must be provided to the examiner for review, and the examiner must state in the examination report that the claims folder has been reviewed. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's pituitary tumor status post removal in December 1999 is etiologically related to presumed exposure to contaminated drinking water during service at Camp Lejeune, and if so, whether it is at least as likely as not (a 50 percent or greater probability) that current headaches are related to the status post pituitary tumor resection, or are otherwise related to service. A rationale for all opinions expressed should be provided. 4. Schedule the Veteran for a VA examination to assess the severity of the service-connected psychiatric disorder. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner should provide an opinion as to the severity and all symptomatology caused by the Veteran's service-connected psychiatric symptoms. The examiner should provide an opinion as to the effects of that symptomatology on the Veteran's social and occupational function and activities of daily life. In rendering the opinion, the examiner should address the July 2016 VA central nervous system and neuromuscular diseases examination report noting depression, cognitive impairment or dementia, and/or some other mental health conditions likely affecting mood and sleep, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any of the manifestations noted are attributable to the service-connected psychiatric disorder. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected psychiatric disorder. The VA examiner should reconcile all psychiatric diagnoses of record and expressly state which of the Veteran's psychiatric symptomatology are due to his service-connected psychiatric disorder, without regard to any nonservice-connected psychiatric disorders which may be diagnosed. If the service-connected psychiatric disorder manifestations cannot be clinically distinguished from manifestations of any nonservice-connected psychiatric disability, such should be stated in the examination report, and all psychiatric findings should be considered in combination. A rationale for all opinions expressed should be provided. 5. Finally, readjudicate the issues remaining on appeal, to include entitlement to a TDIU. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs