Citation Nr: 0002408 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-08 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin condition claimed as due to undiagnosed illness. 2. Entitlement to service connection for chronic fatigue claimed as due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from March through October 1963 and from November 1990 to June 1991. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1997, from the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran's eczema and verrucae were not present in service, and are not an undiagnosed illness attributable to his service in the Persian Gulf. 2. The appellant had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 3. The veteran is currently diagnosed with chronic fatigue of undiagnosed cause. 4. The veteran has reported that he ceased working in June 1996 due to chronic fatigue. 5. The veteran has complained that he has experienced chronic fatigue since his return from the Persian Gulf. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a skin condition as due to an undiagnosed illness is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for chronic fatigue due to an undiagnosed illness is well grounded. 38 U.S.C.A. §§ 1117(a), 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999); VAOPGCPREC 4-99 (May 3, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for a skin condition as due to undiagnosed illness. The threshold question to be answered in this case is whether the veteran has presented evidence of well-grounded claims; that is, claims which are plausible. If he has not presented a well-grounded claim in any instance, his appeal must fail as to that issue. In such a case, there is no duty to assist him further in the development of such claim because such additional development would be futile. 38 U.S.C.A. § 5107. As explained below, the Board finds that the veteran's claim is not well grounded. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Service connection will be granted for disabilities resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a service-connection claim to be well grounded, however, there generally must be a medical diagnosis of a current disability, medical or sometimes lay evidence of incurrence or aggravation of a disease or injury in service, and a medical nexus between the inservice injury or disease and the current disability. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). In determining whether claims are well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). An appellant's statement, however, even about what a physician reportedly told him or her, does not constitute the requisite medical evidence of a medical diagnosis or of medical etiology, for purposes of determining whether a claim is well-grounded. Robinette at 77. With some exceptions, the VA shall pay compensation to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air 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, 2001; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. "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. For the purposes of the applicable regulation, 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. 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss and menstrual disorders. 38 C.F.R. § 3.317(b). Such compensation shall not be paid pursuant to 38 C.F.R. § 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). A review of the veteran's service medical records is negative for complaints of, treatment for, or diagnosis of a chronic skin disorder. VA examination in November 1992 shows complaints of a recurrent skin rash which began after return from Desert Storm, however, private medical records from November 1991 to July 1992 are negative for complaints, and service medical records show no complaints regarding skin on examination in April 1991, August 1994, and June 1996. The report of the November 1992 VA examination shows the veteran complaining of small blisters which dry up, crack open, scale and flake. Hand lotion helped some. He reported various exacerbations and remissions. Examination showed small drying blisters of the palms. Some were in the acute stage and others were drying, fissuring, and scaling. The diagnosis rendered was hyperhidrosis of the palms and soles. The report of a VA examination, conducted in August 1997, showed the veteran complaining that he has had a breaking out of his hands and feet since 1991. Physical examination showed too numerous to count 1 to 3mm verrugas hyperkeratotic papules. His feet showed similar lesions. His right hypothenar eminence showed one plus scaling. The impression given was too numerous to count verrucae and right hand eczema. The evidence of record reveals an established diagnosis of eczema and verrucae. Consequently, there is no basis for establishing service connection due to an undiagnosed illness, under 38 U.S.C.A. § 1117. Moreover, as the veteran's service medical records are negative for complaints of eczema and verrucae, and as the medical evidence does not establish a relationship between any current eczema and verrucae and an incident of the veteran's military service, there is also no basis for establishing service connection under 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the foregoing reasons, therefore, these claims may not be considered well grounded and are appropriately denied. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317; Grottveit v. Brown, 5 Vet. App. 91 (1993); Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board views its discussion in this case as sufficient to inform the veteran of the elements necessary to complete his application for his claims for service connection. See Robinette. 2. Entitlement to service connection for chronic fatigue as due to undiagnosed illness. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. VA is authorized to pay compensation to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses) that either became manifest during service in the Southwest Asia theater of operations during the Persian Gulf War or became manifest to a degree of disability of 10 percent or more within any presumptive period prescribed by VA. 38 U.S.C.A. § 1117 (West Supp. 1999); 38 C.F.R. § 3.317 (1999). A well-grounded claim for compensation under 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness generally requires the submission of some evidence of: (1) active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. VAOPGCPREC 4-99 (May 3, 1999). With respect to the second and fourth elements, VAOPGCPREC 4- 99 indicates that evidence the illness is "undiagnosed" may consist of evidence that the illness cannot be attributed to any known diagnosis or, at minimum, evidence that the illness has not been attributed to a known diagnosis by physicians providing treatment or examination. The type of evidence necessary to establish a well-grounded claim as to each of these elements may depend upon the nature and circumstances of the particular claim. Medical evidence would ordinarily be required to satisfy the fourth element, although lay evidence may be sufficient in cases where the nexus between the chronic disability and the undiagnosed illness is capable of lay observation. For purposes of the second and third elements, VAOPGCPREC 4- 99 indicates that the manifestation of one or more signs or symptoms of undiagnosed illness or objective indications of chronic disability may be established by lay evidence if the claimed signs or symptoms, or the claimed indications, respectively, are of a type which would ordinarily be susceptible to identification by lay persons. If the claimed signs or symptoms of undiagnosed illness or the claimed indications of chronic disability are of a type which would ordinarily require the exercise of medical expertise for their identification, then medical evidence would be required to establish a well-grounded claim. With respect to the third element, a veteran's own testimony may be considered sufficient evidence of objective indications of chronic disability, for purposes of a well-grounded claim, if the testimony relates to non-medical indicators of disability within the veteran's competence and the indicators are capable of verification from objective sources. The veteran first complained of fatigue in December 1991. In July 1992 he was diagnosed as profoundly hypothyroid. Replacement therapy was begun and his thyroid levels were stabilized. He has continued to complain of chronic fatigue, however, and the most recent VA examination, conducted in September 1996, has listed chronic fatigue of undiagnosed cause together with hypothyroidism and iron deficiency anemia. The veteran also testified at his personal hearing, conducted in October 1999, that he continues to experience chronic fatigue. In view of the foregoing, we conclude that the veteran's claim is well grounded. ORDER The claim of entitlement to service connection for a skin disorder due to an undiagnosed illness is not well grounded. In that regard, the appeal is denied. The claim of entitlement to service connection for chronic fatigue due to an undiagnosed illness is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for chronic fatigue due to an undiagnosed illness is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board concludes that further development of this claim should be undertaken to ascertain whether objective evidence of the veteran's current impairment can be found. Thus far the only evidence of his current condition has been his testimony and that of his wife. He has reported that he stopped working in June 1996 due to chronic fatigue, however, this has not been verified. Documents contained in the claims folder indicate that the veteran ceased working for Thompson Homes Inc. in April 1993 as a result of a stroke. Military medical records show no report of this condition and show the veteran employed in June 1996 as a National Guard technician. The Board also notes that private medical records, dated in March 1981, show the veteran noted to be feigning lethargy during hospitalization following attempted suicide. He was treated at that time, and prior to that for severe depression. The Board finds that further evidence regarding the circumstances of the veteran's final employment, and objective medical evidence regarding his chronic fatigue should be developed. Therefore this claim is REMANDED for the following: 1. The RO should obtain personnel records regarding the veteran's last place of employment to ascertain whether he ceased working due to chronic fatigue. Personnel records and evaluations should be obtained regarding the veterans employment and performance as a civilian technician in the Arkansas National Guard. 2. The RO should schedule the veteran for a period of observation and evaluation of not less than ten days at a VA hospital for the purpose of evaluating his claimed chronic fatigue condition. 3. Following this period of observation an examination should be conducted with the objective of determining, if possible, the etiology of the veteran's claimed chronic fatigue. The examiner should be asked to review the claims folder in detail, to specifically include pre-service private medical records attached to the veteran's service medical records which show treatment for depression with suicide attempts, and all records associated with his hypothyroid condition and anemia. Upon completion of the above described items the RO should review the veteran's claim for service connection for chronic fatigue due to undiagnosed illness. If the determination remains adverse the RO should provide the veteran and his representative a supplemental statement of the case and adequate time to respond. The claim should then be returned to the RO for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). M. W. GREENSTREET Member, Board of Veterans' Appeals