Citation Nr: 0708323 Decision Date: 03/20/07 Archive Date: 04/09/07 DOCKET NO. 03-19 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for fatigue, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from June 1988 to June 1992. He served in Southwest Asia from August 1990 to March 1991. The instant appeal arose from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Waco, Texas, which denied a claim for service connection for chronic fatigue syndrome. FINDING OF FACT The veteran has no currently diagnosed chronic fatigue syndrome. CONCLUSION OF LAW The criteria for service connection for fatigue, including as due to undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. The veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. The veteran testified during his hearing before the undersigned Veterans Law Judge that he is seeking service connection for fatigue based on (in part) the theory that it is a manifestation of an undiagnosed illness resulting from active duty in the Gulf War. His DD Form 214 confirms that he had active duty in the Southwest Asia theater of operations from August 1990 to March 1991. Therefore, he is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asia theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317(d). Service medical records show no complaints of or treatment for fatigue. The first post-service notation of fatigue was during an October 2002 VA Gulf War Guidelines examination. At that time, the veteran reported chronic fatigue. The 2002 examiner noted that the veteran had some sleep disturbance. He opined that the veteran did not have a true chronic fatigue syndrome and that it was undetermined what caused the veteran's fatigue. The impression was "some degree of chronic fatigue syndrome." The Board notes that the veteran's sleep impairment is compensated under his rating for his service-connected post-traumatic stress disorder. See May 2006 rating decision. The evaluation of the same manifestation, like sleep impairment causing fatigue, under different diagnoses (pyramiding) is not permitted. 38 C.F.R. § 4.14 (2006). Pursuant to the Board's 2005 remand, another VA examination was developed in order to assess the veteran's complaints of fatigue. The December 2005 VA chronic fatigue examination noted that the claims folder was reviewed. The VA physician examined the veteran and specifically concluded that the chronic fatigue syndrome diagnosis had never been given to the veteran, and the veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. Although chronic fatigue syndrome is an illness which the Secretary has determined warrants presumptive service connection, there can be no valid claim (be it on a direct or presumptive basis) in the absence of proof of present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As a layman the veteran has no competence to give a medical opinion on the diagnosis of any fatigue symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because he has no currently diagnosed chronic fatigue syndrome, service connection for fatigue, including as due to an undiagnosed illness, is not permitted as a matter of law. 38 U.S.C.A. §§ 1117, 5107; 38 C.F.R. §§ 3.303, 3.317(a)(2); Sabonis v. Brown, 6 Vet. App. 426 (1994). Duty to assist and duty to notify The Board finds that VA has met its duties to notify and assist. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (CAVC or Court) held that proper notice must inform a claimant of any information and evidence not of record (1) needed to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. Interpreting 38 C.F.R. § 3.159(b)(1), the Court also held that VA must ask him to submit any pertinent evidence in his possession ("fourth element"). Notice should be given to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. VA provided the requisite notice by means of letters dated in 2002, 2003, 2005, and 2006. While the 2003 letter which specifically addressed service connection for fatigue was not issued prior to the initial adjudication of the claim in 2002, the April 2002 letters, which were issued prior o the initial adjudication of the claim, advised him of the duty to assist and the duty to notify, and he was told of the requirements to establish a successful claim for service connection as well as the specific requirements which pertain to undiagnosed illness claims. He was also advised of his and VA's respective duties in the 2002, 2003 and 2005 letters. The 2005 letter specifically requested the veteran to provide "any evidence in his possession" that pertained to his claim. Further, March, July, and August 2006 notice letters explained the assignment of disability ratings and effective dates. Regardless, such explanation is moot, given that service connection is denied in this case. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, there can be no possibility of any prejudice to the veteran under the holding in Dingess. VA's duty to assist a claimant in substantiating his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2005)) also has been satisfied. The duty to assist contemplates that VA will help a claimant obtain relevant records, whether or not the records are in federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. VA treatment records have been associated with the claims folder, and the veteran reported in August 2005 that he had nothing further to submit. As noted above, this case was remanded by the Board in 2005 for further development, and a VA examination with a medical opinion was developed in 2005. The Board therefore finds that VA has satisfied its duty to notify and assist. ORDER Service connection for fatigue, including as due to an undiagnosed illness, is denied. ____________________________________________ CONSTANCE B. TOBIAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs