Citation Nr: 21008197 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-13 619 DATE: February 12, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for fibromyalgia is granted. Service connection for chronic fatigue syndrome is granted. FINDINGS OF FACT 1. The Veteran's in-service stressors have previously been conceded; resolving all reasonable doubt in the Veteran’s favor, her PTSD is etiologically related to her in-service stressors. 2. The Veteran has a current diagnosis of fibromyalgia, which is a "qualifying chronic disability" for purposes of 38 C.F.R. § 3.317 and manifested to a compensable degree for a period of at least six months. 3. The Veteran has a current diagnosis of chronic fatigue syndrome, which is a "qualifying chronic disability" for purposes of 38 C.F.R. § 3.317 and manifested to a compensable degree for a period of at least six months. CONCLUSIONS OF LAW 1. The criteria for service connection for posttraumatic stress disorder (PTSD) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for chronic fatigue syndrome have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 2003 to October 2003 and from June 2004 to February 2007. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2013 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The June 2013 rating decision denied service connection for posttraumatic stress disorder and the October 2015 rating decision denied service connection for fibromyalgia and chronic fatigue syndrome, among other issues. In April 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board will assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) Service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). With respect to the third element, if the evidence shows that a veteran engaged in combat and the veteran is claiming a combat-related stressor, no credible supporting evidence is required. Id. ; see also Doran v. Brown, 6 Vet. App. 283 (1994). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125 (a), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th ed. (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-5 provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person’s response involved intense fear, helplessness, or horror. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304 (f)(1), (f)(2), (f)(4) (2011). In any of the above situations, the Veteran’s lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1), (f)(2), (f)(4)(2011). Additionally, lay evidence alone may establish an alleged stressor where: 1) the stressor is related to the Veteran’s fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of the Veteran’s service; and 4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). Fear of hostile military or terrorist activity is defined as occurring when a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The Veteran contends that she has a diagnosis of PTSD related to service. The Veteran is already service connected for anxiety and depression, and VA has conceded a stressor based on MST. However, that does not necessarily preclude service connection for another psychiatric disorder such as PTSD. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability"). As a verified stressor has already been conceded, the only remaining question for the Board is whether the Veteran has a current diagnosis of PTSD related to such stressors. After reviewing, the Board finds that the evidence is at least in relative equipoise. Post-service, the Veteran was assessed with PTSD in March 2011. She has also been diagnosed on multiple occasions by his VA psychiatrists with PTSD related to his military stressors. An April 2011 VA treatment record TBI note indicates that the Veteran has a history of depression and anxiety and history of MST with subsequent PTSD and the Veteran currently notes hyperarousal symptomatology consistent with PTSD. The examiner noted that the Veteran’s records indicate she experienced MST with subsequent PTSD and has a long history of depression and that she has been seen for these issues in the military and in the private sector. The examiner noted that psychiatric symptoms of PTSD are present, and that the current clinical symptom presentation is most consistent with behavioral health conditions. An April 2011 psychosocial assessment indicate that the Veteran screened positive for PTSD, depression, MST and TBI. Notably, in an April 2016 letter from her VA psychiatrist. Dr. L.S.G. states that the Veteran is under his care and he has diagnosed her with PTSD, chronic severe, with no depersonalization. He added that the Veteran suffered military sexual trauma which has resulted in her PTSD. This suffices as evidence of a nexus between her PTSD and an in-service stressor. The Board is cognizant that the March 2012 VA examiner noted that the Veteran did not meet the full criteria for PTSD. The examiner explained that the Veteran did not meet the criteria as the Veteran’s PTSD symptoms do not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; however, the Veteran’s stressors contributed to her diagnosis of anxiety NOS. The Board finds that the probative value of the March 2012 VA opinion diminishes in light of the cumulative evidence of record outlined above. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for postraumatic stress disorder (PTSD) is warranted. 2. Entitlement to service connection for fibromyalgia 3. Entitlement to service connection for chronic fatigue syndrome The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. For a Veteran with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117 and 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 duty service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. A “qualifying chronic disability” may be one that results from an “undiagnosed illness” or a “medically unexplained chronic multisymptom illness”. 38 U.S.C. § 1117 (a)(2)(A), (B); 38 C.F.R. § 3.317 (a)(2)(ii). A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms includes fibromyalgia. 38 C.F.R. § 3.317 (a)(2)(i)(B). Unlike other disability compensation claims, claims based on a qualifying chronic disability under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 (a) do not require a nexus linking the condition to service because service connection is presumed, absent evidence to the contrary, and when the requirements of the statute and the regulation are met. See Gutierrez v. Principi, 19 Vet. App. 1, 8 (2004). The Veteran contends that her fibromyalgia and chronic fatigue syndrome is related to service. As mentioned above, the appellant served on active duty in Southwest Asia Theater of Operations from May 2005 to December 2005. See DD-214. Accordingly, the Veteran is considered a Persian Gulf Veteran for purposes of the applicability of 38 C.F.R. § 3.317. The issue in this case essentially turns on whether the Veteran has a diagnosis of fibromyalgia and chronic fatigue syndrome. The Veteran was afforded a VA Gulf War general examination in June 2015. A Gulf War general examination was afforded in June 2015. The only answers provided regarding the medical history were stomach and duodenal conditions, fibromyalgia and chronic fatigues syndrome. The examiner noted that “there are no undiagnosed, or diagnosable but medically unexplained/partially explained chronic multisymptom illness of unknown etiology attributable to environmental exposures during deployment in SW Asia. There is no objective evidence on history or physical exam of chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome. Established diagnostic criteria for these conditions are not met.” However, the examiner noted that the Veteran reported been diagnosed with fibromyalgia in 2012. A diagnosis of fibromyalgia was not established, and the examiner further noted that “[a]lthough [V]eteran states [she] was diagnosed, in the opinion of this examiner there is objective medical evidence of fibromyalgia on today's exam. Veteran has multiple joints with degeneration that would explain joint pain.” Private treatment records show the Veteran’s complaints of pain, difficulty sleeping, cough, headache, dry eyes, swelling, fatigue, fever, swollen glands and shortness of breath. She has been assessed positive for fatigue, weakness morning stiffness lasting all day, joint pain, muscle weakness, muscle tenderness, and joint swelling affecting the spine, neck, knees, elbows, hips, shoulders, and everywhere. The Veteran provided a March 2016 DBQ for fibromyalgia. Dr. S.B. diagnosed the Veteran with fibromyalgia. The examiner noted that the Veteran is currently undergoing medication management treatment for this condition and noted symptoms of widespread musculoskeletal pain, stiffness and fatigue that are constant or nearly constant. The claims file was reviewed. It was noted that there were no diagnosed illnesses for which no etiology was established. Additional signs and/or symptoms which may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness, not addressed through disability benefits questionnaires (DBQ) completed, included fatigue, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, sleep disturbances, and gastrointestinal signs or symptoms. A chronic fatigue syndrome Disability Benefits Questionnaire (DBQ) was completed by Dr. S.B. in March 2016 and associated with the claims file. Chronic fatigue syndrome was diagnosed. Findings, signs, and symptoms attributable to chronic fatigue syndrome included generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, migratory joint pain, and sleep disturbance with the following cognitive impairments: poor concentration, inability to concentrate and forgetfulness. Dr. S.B. noted continuous medication is required for control of chronic fatigue syndrome and that debilitating fatigue reduced daily activity level to less than 50% percent of pre-illness level for 6 months or longer. Dr. S.B. opined that it was more likely than not that the appellant's chronic fatigue was due to his active service. At her Board hearing, the Veteran testified that she is taking Cymbalta for nerve pain. This evidence is enough to satisfy the requirement that the disability manifest to a degree of at least 10 percent. See 38 C.F.R. §§ 3.317, 4.71a, Diagnostic Code 5025 (2018). Regarding the diagnosed chronic fatigue syndrome, the March 2016 DBQ indicates that the Veteran’s symptoms are controlled by continuous medication, enough to satisfy the requirement that the disability manifest to a degree of at least 10 percent. See 38 C.F.R. §§ 3.317, 4.71a, DC 6354 (2018). In sum, the Veteran is a "Persian Gulf War Veteran" who manifests a “qualifying chronic disability” (fibromyalgia and chronic fatigue syndrome) for presumptive service connection purposes. See 38 C.F.R. § 3.317 (a)(2)(i)(B)(2). She has been prescribed medication for control of fibromyalgia and chronic fatigue syndrome which meets the criteria for a compensable 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5025 and 6354. As such, and resolving reasonable doubt in the Veteran's favor, service connection for fibromyalgia and chronic fatigue syndrome as diseases that are presumptively due to Persian Gulf service has been established. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Accordingly, the claims for service connection for fibromyalgia and chronic fatigue syndrome are granted on a presumptive basis. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.