Citation Nr: 1807824 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-28 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for mitral valve disease, status-post mitral valve replacement (claimed as heart disease). 3. Entitlement to service connection for sleep disturbance. 4. Entitlement to service connection for chronic fatigue syndrome. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression due to an undiagnosed illness, and entitlement to service connection under the provisions of 38 U.S.C. Section 1702. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for a hysterectomy. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and L.T. ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1978 to January 1981, and again from January 1991 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at a central office hearing in June 2017. A transcript of the hearing is of record. Since the last issuance of the supplemental statement of the case (SSOC) in October 2016 additional evidence has been associated with the claims file. At her Board hearing, the Veteran waived agency of original jurisdiction consideration of this evidence. As a result, the Board may properly consider this new evidence in the first instance. The issues of entitlement to service connection for an acquired psychiatric disorder; hypertension; and a hysterectomy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In June 2017, prior to the promulgation of a decision, the Veteran on the record at her Board hearing, withdrew her appeal for entitlement to service connection for fibromyalgia. 2. The Veteran's heart disability is at least as likely as not related to service. 3. The Veteran's sleep disturbance is a symptom or manifestation of her psychiatric disability; she does not have a separately diagnosed sleep disorder. 4. The Veteran does not have a current diagnosis of chronic fatigue syndrome and there is no chronic disability pattern or diagnosed disease that is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for fibromyalgia have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for entitlement to service connection for a heart disability have been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for a sleep disturbance disability have not been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal At the beginning of her June 2017 Board hearing, the Veteran indicated that she was withdrawing her appeal for entitlement to service connection for fibromyalgia. See Board Hearing Transcript, pg 2. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). As this appeal was withdrawn on the record at the Veteran's Board hearing, the Board does not have jurisdiction over it and it is therefore dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. II. VA's Duties to Notify and Assist With respect to the issues decided herein, the Board notes that neither the Veteran nor her representative has raised any issues with VA's duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). III. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge from active duty, including that pertinent to service establishes that the injury or disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317. 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 military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For a disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1). Under 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. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" contemplates 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). (A) Heart Condition The Veteran contends that she has a heart condition related to service. The Veteran was afforded a VA examination for her heart in April 2011. The examiner noted that she had a diagnosis of mitral valve disease/mitral valve replacement. The examiner opined that this condition is a "diagnosable chronic multi-symptom illness with a partially explained etiology that is at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia." He noted that the Veteran denied a history of rheumatic fever and does not have any of the other etiologies so it is at least as likely as not that the mitral valve disease is related to a specific exposure agent experienced by the Veteran during service in Southwest Asia. As rationale, the examiner stated: According to an Up to Date Article entitled 'Pathophysiology and Clinical Features of Mitral Stenosis' by Catherine Otto, MD (August 29, 2007), 'in great majority of cases mitral stenosis is caused by rheumatic involvement of the mitral valve.' Other etiologies include congenital malformation, systemic lupus erythematosus, carcinoid heart disease, endomyocardial fibrosis, infective endocarditis, mitral annular calcification and rheumatoid arthritis." As noted, the Veteran has a current diagnosis of mitral valve disease/mitral valve replacement. In addition, the Veteran has alleged exposure to agents in the Southwest Asia theatre. Therefore, the first and second elements of service connection are met. Finally, the Board finds the April 2011 medical opinion relating the Veteran's heart disability to service highly probative. The opinion considered the Veteran's entire medical history as well as her lay statements and provides a clear conclusion with supporting rationale. As a result, the Board finds that entitlement to service connection for mitral valve disease/mitral value replacement is warranted. (B) Chronic Fatigue Syndrome and Sleep Disturbance The Veteran contends that she has chronic fatigue syndrome and sleep disturbance as a result of service. Specifically, at her Board hearing, the Veteran essentially attributed her fatigue to not being able to sleep, which she contends was as a result of her in-service experiences. A buddy statement from the Veteran's commander submitted in May 2010 indicates "the night after we left for the desert, a unit that located close to us from Pennsylvania was targeted by a scud and most of the unit was kill[ed] by that one scud. The numerous sirens coupled with the fears of attacks kept my soldiers and myself from sleeping. This was the first stages of our chronic fatigue syndrome (CFS)." He further stated "we were unable to fall asleep and if we get any sleep it was light sleep for short duration. I used to walk through my unit at night to check on my soldiers and most of the time I would find my soldiers laying there with their eyes opened shining in the dark, many would rise up to talk and to voice their fears and concerns." The Veteran was afforded a VA examination in May 2011 for chronic fatigue syndrome and sleep disturbance. With regard to the chronic fatigue, the Veteran reported an onset of 2000. She reported a slow progressive onset of feeling tired all the time. She had not been seen or evaluated by anyone prior for the complaints and no diagnosis had been made. The Veteran denied any history of hospitalization or surgery and reported that the fatigue was not debilitating and did not last for 24 hours or longer after exercise. She estimated that the fatigue restricted her routine daily activities by approximately 10 percent. She stated her restriction lasted more than 12 months. She described her restriction as getting fatigued easily with lifting and getting tired quicker than friends when exercising. Based on a review of the her medical history as well as her lay statements, the examiner concluded that the Veteran did not meet the VA criteria for chronic fatigue syndrome and there was no pathology to render a diagnosis. As such, there was no chronic disability pattern or diagnosed disease that was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. With regard to her sleep, the Veteran reported that she had occasional sleep disturbance. The examiner noted that the Veteran's undiagnosed sleep disturbance had been related to her depression. The examiner concluded "therefore this is a category 4 diagnosis, a disease with a clear and specific etiology and diagnosis. There is no chronic disability pattern or diagnosed disease that is related to a specific exposure event experienced by the Veteran during service in Southwest Asia concerning this diagnosis." A review of the Veteran's VA treatment records does not show a sleep disorder or chronic fatigue syndrome. Here, simply put, the Veteran does not have a current sleep or chronic fatigue syndrome diagnosis. Indeed, the Veteran, by her own admission, which is confirmed by VA examination, attributed her sleep disturbances to her acquired psychiatric disorder. Because these are symptoms related to a diagnosed disorder and the Veteran does not have a separately diagnosed sleep disability, service connection cannot be granted. With regard to the Veteran's chronic fatigue syndrome, the Board notes that the only evidence favorable to the Veteran's claim that she has an undiagnosed illness manifested by fatigue are her own statements as well as the statements made by her commander. However, the Veteran and her commander are lay persons, so their etiological opinions are of less weight and probative value than the unfavorable medical evidence. Indeed, they are competent to report the Veteran's feelings of fatigue and difficulty sleeping, but they are not competent to determine the cause of such symptoms or attribute them to an undiagnosed illness as they are not shown to have the requisite medical expertise to provide such a diagnosis or opinion. Further, the most probative evidence of record is the May 2011 opinion finding that the Veteran does not have any pathology to render diagnosis for chronic fatigue syndrome, nor does she have an undiagnosed illness manifested by fatigue. The voluminous medical evidence discloses no evidence that a clinical provider has assigned a diagnosis of chronic fatigue syndrome or an undiagnosed illness manifested by fatigue is strong and persuasive evidence against the claim. Thus, service connection for chronic fatigue syndrome and sleep impairment is denied. The Board reiterates that this denial is for separately diagnosable sleep and fatigue disabilities, which have not been demonstrated. To the extent that the Veteran experiences sleep issues and fatigue as a result of her acquired psychiatric disorder, the Board notes that these symptoms will be considered if her disorders are ultimately found to be service-connected. The Board does not dispute that the Veteran experiences issues with her sleep and therefore becomes fatigued; however, because she does not have a separate sleep disorder and does not have any pathology for chronic fatigue syndrome, nor is there any indication of an undiagnosed illness, the claims must be denied. ORDER The claim for entitlement to service connection for fibromyalgia is dismissed. Entitlement to service connection for mitral valve disease/mitral value replacement is granted. Entitlement to service connection for sleep disturbance, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. REMAND Although the additional delay is regrettable, the Board finds that a remand is necessary in this case. Acquired Psychiatric Disorder The Veteran contends that she has an acquired psychiatric disorder related to her service in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran was afforded a VA examination in September 2010. On examination, she reported knowing a soldier who broke her leg and another who died in an automobile accident during service. She denied any direct threat or exposure to life-threatening situations. The examiner stated "the patient is clearly demonstrating symptoms of depression at this point, but they appear to be primarily related to concern about family medical issues". However, at her Board hearing, the Veteran reported that it is hard for her to discuss her service experience. Her commander testified that the first night they were in Saudi Arabia they "experienced numerous sirens going off, the scud attacks coming at us . . . you think that this is the one that's going to kill you because we were told that we were going to be hit with these scuds. . . . When she got in the country she was blown away - so many solider already disturbed, scared to death." He further stated "and then on March the [REDACTED], after the war was over, one of her best friends got killed on a convoy going north to Kuwait. And she was in the same convoy and they tried to save her life - they couldn't save her. Her name was [REDACTED] and so she died on March [REDACTED]. Another traumatic event happened when we were next door to a unit from Pennsylvania and there was 200 soldiers and a scud hit that location and killed just about every solider in the unit -we got to know those people -we lost those people sometime in the latter part of February at the same time." Essentially, at the time of examination, the Veteran was struggling with stressors not related to service which made it hard for her to express what she experienced in-service. In particular, as noted by the VA examiner, at the time of examination, the Veteran was dealing with the reality of both of her parents being diagnosed with cancer and being "close to death." The Veteran's in-service stressors have been conceded and recent VA treatment records suggest that she has a current diagnosis of PTSD. Thus, a new VA examination is necessary. Hypertension The December 2010 VA examination for hypertension is incomplete. The Veteran contends that her hypertension became worse as a result of service given the stressful environment and also because she was without her hypertension medications for approximately 1.5 months during service. The Veteran was not afforded an entrance examination for her second period of active duty service and thus, it cannot be said that her hypertension was "noted" upon entry. Therefore, a remand is necessary to address whether the Veteran's hypertension clearly and unmistakably preexisted service and was not aggravated thereby; or whether it is directly related to service. Hysterectomy The March 2011 VA examination report is also incomplete. The Veteran contends that a hysterectomy was suggested after she was advised she had uterine fibroids. She believes that the need for a hysterectomy was due to her in-service stress as well as dust and other chemicals she was exposed to while in the Southwest Asia Theater. She has stated that she had seven miscarriages before getting a hysterectomy; one of the miscarriages occurred during service. Thus, a medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a new PTSD VA examination. The Veteran's entire record, to include this remand, must be reviewed by the examiner. The examiner is asked to opine: a. The examiner should first identify all current psychiatric diagnoses. The Veteran's claims file indicates that she has current diagnoses of major depressive disorder and PTSD. If the examiner finds that these diagnoses are inappropriate, an explanation is necessary. b. Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's current psychiatric disorders were incurred during or caused by active service, to include as a result of the her conceded in-service stressors? All opinions are to be accompanied by a rationale consistent with the evidence of record. 2. Obtain an addendum VA medical opinion for the Veteran's hypertension. The Veteran's entire record, to include this remand, must be reviewed by the examiner. The examiner is asked to opine: a. Did the Veteran's hypertension clearly and unmistakably pre-exist service entrance in January 1991? b. If, and only if, it is found that the Veteran's hypertension pre-existed service entrance, was the Veteran's hypertension clearly and unmistakably NOT aggravated during active duty service? The examiner is specifically asked to consider and comment on the Veteran's contention that during service, she was without her high blood pressure medication for 1.5 months. In addition, the examiner should consider that VA has conceded that the Veteran was likely exposed to stressful situations during service. See July 2010 PSTD Stressor Decision ("Based on the information listed above, the Veteran was likely to have experienced stressful situations while in Saudi Arabia). A medical opinion explaining whether not taking blood pressure medication can worsen hypertension would be extremely helpful to the Board. c. If the Veteran's hypertension is NOT found to have pre-existed service, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that hypertension had its clinical onset during the Veteran's period of active service or is related to incident or event in service. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. 3. Obtain a VA medical opinion to determine whether the Veteran's post-service hysterectomy and residuals thereof were for disability that was incurred or aggravated by (during) her service. The Veteran's entire record, to include this remand, must be reviewed by the examiner. The examiner is asked to opine: a. Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's hysterectomy was related directly to a period of service, to include any stress she experienced in service as well as exposure to dust and other debris in the Southwest Asia Theater. The examiner is asked to consider the Veteran's contentions that she had seven miscarriages before getting a hysterectomy; one of the miscarriages occurred during service. She additionally has stated that a hysterectomy was suggested due to uterine fibroids. The examiner is asked to opine: b. Whether is at least as likely as not that the Veteran's active service in any way worsened her uterine fibroids and if so; c. Whether it is at least as likely as not that this worsening ultimately caused the Veteran to undergo a hysterectomy. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. 4. Thereafter, the AOJ should readjudicate the claims. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) and afford the Veteran and her representative an opportunity to respond, and return the case to the Board, if 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 of Veterans' Appeals 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 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs