Citation Nr: 0003115 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 93-27 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and her spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from September 1981 to September 1985. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from an April 1991 rating determination by the St. Louis, Missouri, Regional Office (RO), which denied service connection for chronic fatigue syndrome. In October 1995, the Board remanded this matter for RO for consideration of a newly promulgated regulation setting forth diagnostic and rating criteria for chronic fatigue syndrome. After completion of the requested development, the RO continued the denial of the claim and subsequently returned it to the Board. A subsequent review of the claims folder revealed that the veteran had included a nonspecific request for a hearing in her April 1992 substantive appeal, and that she had not explicitly withdrawn the request, but that she did not respond to RO attempts to clarify the type of hearing desired. A February 1998 letter from the Board's Administrative Service requested that the veteran clarify the type of hearing desired; it was noted that if she did not respond within 30 day, it would be assumed that she wanted a hearing before a Member of the Board in Washington, DC, and that arrangements would be made for such a hearing. The Board scheduled hearings for the veteran for June 1998, October 1998, and February 1999. However, she requested postponement of each hearing, and motions for postponement were granted. The veteran's motion for postponement of a June 1999, received at the Board four days prior to that hearing, was denied. FINDING OF FACT The veteran has not presented competent evidence that she has or ever has had chronic fatigue syndrome that began in military service. CONCLUSION OF LAW The claim for service connection for chronic fatigue syndrome is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records show that in January 1984, the veteran reported problems with her menstrual cycle, which included dysmenorrhea, nausea and extreme tiredness. She was later evaluated for complaints of extreme fatigue associated with possible thyroiditis between May 1985 and August 1985. On initial post service VA examination in November 1985 the examiner noted the veteran's medical history was significant for hypothyroidism following the administration of Danocrine for treatment of endometriosis. The veteran stated that at that time she tired easily and experienced substantial weight gain. The report was otherwise negative for complaints, findings or treatment of symptoms suggestive of chronic fatigue syndrome. VA outpatient treatment records dated from August 1986 to October 1990 show that in October 1990, the veteran was evaluated for complaints of chronic fatigue which she related to her military service. Lab reports were normal and revealed no negative symptoms and there was no evidence of depression. The diagnosis was probable chronic fatigue syndrome. Additional evidence of record consists of excerpts from an information pamphlet and other literature on chronic fatigue syndrome. During her personal hearing before a hearing officer at the RO, in October 1991, the veteran presented testimony about the onset of and severity of her chronic fatigue syndrome. She testified that she first complained of fatigue in January 1983, which physicians then attributed to a viral syndrome. She testified that she was later evaluated for hypothyroidism but that test results were inconclusive and that a final assessment of possible thyroiditis was made. She testified that the last few months of service she was placed on light duty because of continued severe fatigue. She stated that she tried to work after service discharge in September 1985 but was still too tired and missed a tremendous amount of work due to flu-like symptoms. The veteran testified that she believed that she was misdiagnosed in service and that in fact her symptoms were the early signs of chronic fatigue syndrome. The veteran's husband gave additional supportive testimony on her behalf. Additional evidence submitted in support of the claim includes lay statements from the veteran's friend and former employer relating their observations of the veteran's physical condition subsequent to active duty. Specifically the veteran's employer noted that she was employed from September to November 1985. During that time, the veteran's attendance was very sporadic and she missed an average of two to three days per week for complaints of flu-like symptoms and extreme fatigue. The veteran also submitted a statement restating her contentions. VA outpatient treatment records show that the appellant was seen for complaints of being chronically fatigued on several occasions between August 1991 and June 1992, some of which note a prior history of chronic fatigue syndrome. Further, the report of a September 1992 hospitalization from the Kansas City VA Medical Center reflects that the appellant was treated for adjustment disorder with depressive features after separating from her husband. On VA examination in April 1996, the veteran's history was noted to be significant for removal of the uterus, the left ovary and part of the right ovary in 1981. In 1984 she had a fairly sudden onset of fatigue and weight gain. She was evaluated by several physicians and thought to have a problem with mild depression. At one point, she carried a diagnosis of thyroiditis which was followed and considered to have undergone spontaneous resolution. The veteran's fatigue persisted along with aching joints and muscles and a constant low-grade fever and a chronic disease syndrome was subsequently diagnosed. She was placed on profile where she worked only in the mornings and spent the afternoons in bed sleeping. On examination the eyes, ears nose and throat appeared normal. She was alert, oriented, comfortable and cooperative during the examination. Her neck was supple with no masses, the thyroid was not enlarged and there were no palpable lymph nodes. The lungs were clear and resonant to percussion and auscultation. The heart had good tones, no murmurs and was regular. The abdomen was moderately obese and soft. The veteran was slightly tender in the right upper quadrant on inspiration and was informed of possible liver or gallbladder trouble. The ankles showed no edema and the veteran was rational oriented and without any emotional problems. Neurological and musculoskeletal review were both normal and laboratory results were all within normal limits. The examiner concluded that no organic problems appeared to be present and the veteran's recurring depression, that was diagnosed in service, may be the reason for her complaints. The VA examiner confirmed this diagnosis in a May 1996 addendum following review of the claims file, stating that his April 1996 diagnoses should stand as is. Analysis Pertinent law and regulations provide that service connection may be granted for disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). The United States Court of Veterans Appeals-now the United States Court of Appeals for Veterans Claims-(Court) has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the claim is not well grounded, the veteran cannot invoke the VA's duty to assist in the development of the claim. In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for a claim of service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). The Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. A review of the records reveals no diagnosis of chronic fatigue syndrome during service and the appellant has not contended otherwise. Rather, she contends that the symptoms of fatigue experienced during service (that, by her own statements, were attributed to other causes) in fact represented chronic fatigue syndrome. As noted in the prior remand, the Board has acknowledged that chronic fatigue syndrome was not recognized as a clinical entity until after the appellant's discharge from service. Unfortunately, however, there is no objective medical evidence to support the veteran's assertions that the symptoms experienced in service were indicative of chronic fatigue syndrome. Also as noted in the prior remand, the outpatient treatment records dated between 1986 and 1992 reflect that the veteran was seen on several occasions for being "chronically fatigued;" however, these entries appear to only describe the appellant's complaints. The only relevant diagnostic entry in such records is "probable chronic fatigue syndrome," noted in October 1990, more than 5 years after the veteran's discharge from service. Following notice of the promulgation of regulations setting forth the criteria for diagnosis and evaluation of chronic fatigue syndrome (38 C.F.R. § 4.88a and b), the veteran underwent VA examination, as directed on remand, in April 1996. Significantly, however, the examiner did not then diagnosis chronic fatigue syndrome. As noted in his report, comprehensive evaluation revealed no organic problems; the physician opined that the veteran's problems were likely attributable to recurring depression, first noted (as the reported history indicates that the appellant, herself, then acknowledged), in service. While the appellant's representative has taken issue with the physician's notation that depression was first diagnosed in service, the facts remain that a notation that the veteran was experiencing some depression was previously made (see the September 1992 hospital report), and that, in April 1996, the examiner did not diagnose chronic fatigue syndrome. Thus, no confirmed diagnosis of chronic fatigue syndrome was rendered in April 1996 and the veteran has not otherwise presented any medical evidence of such a current diagnosis; these facts militates against the claim. In the absence of evidence of the currently claimed disability, there can be no valid claim. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Even assuming, arguendo, that the October 1990 notation of "probable chronic fatigue syndrome" constitutes a diagnosis rendered in accordance with the criteria set forth at 38 C.F.R. § 4. 88a (in spite of the absence of any evidence of clinical testing to confirm the diagnosis), it is significant that the examiner did not then relate the disability, in any way, to the veteran's active military service, to include any symptoms experienced therein. In this regard, the Board notes that evidence of both a diagnosis, and of a nexus between that diagnosis and service, is needed to well-ground the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the veteran has submitted several articles in support of her theory that her chronic fatigue syndrome was first manifested during service. The Court has recently addressed the use of medical treatise evidence to establish a well-grounded claim. In order to relate symptoms to a disorder diagnosed much later, treatise evidence must address the symptoms so specifically as to eliminate "the possibility of the existence of other conditions that also often present with the same symptomatology." Sacks v. West, 11 Vet.App. 314, 317 (1998). The Court went on to indicate that medical treatise evidence can, however, provide important support when combined with an opinion of a medical professional. Similarly, medical treatise evidence could "discuss[] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Wallin v. West, 11 Vet. App, 509, 514 (1998). Here, the cited treatise proffered by the veteran is not combined with an opinion of a medical professional. Moreover, it does not discuss chronic fatigue syndrome with a degree of certainty such that, under the facts of this case, there is a plausible causality based upon objective facts. Id. In view of the foregoing, the Board must conclude that the veteran has not presented competent evidence that she has or ever has had chronic fatigue syndrome that began in military service. As such, the claim is not plausible. In reaching the above conclusion, the Board has considered the veteran's complaints of experiencing fatigue in service, and the lay testimony (of her husband) and statements from a friend and former employer supporting her assertions that she experienced fatigue-like symptoms shortly after her discharge from service and thereafter. However, even accepting such assertions as true for purposes of the well-grounded claim analysis does not render her claim well-grounded. Without medical training or expertise, neither the appellant nor any other lay witness or affiant is competent to render a medical opinion establishing either that chronic fatigue syndrome, as a clinical entity, was first manifested in service. See Dean v. Brown, 8 Vet.App. 449 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). As the veteran has not presented evidence of a plausible claim, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well-ground the appellant's claim of entitlement to service connection. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). Although the RO did not specifically deny the veteran's claim on the merits, "when a RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." See Meyer v. Brown, 9 Vet.App. 425, 432 (1996). The Board finds that inasmuch as the RO explained the basis for the denial of the claim, the duty to inform has been met. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER In the absence of evidence of a well-grounded claim, service connection for chronic fatigue syndrome is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals