Citation Nr: 1022465 Decision Date: 06/17/10 Archive Date: 06/24/10 DOCKET NO. 07-20 966A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for Epstein Barr Virus Syndrome, residuals of mononucleosis, including chronic fatigue syndrome. 2. Entitlement to service connection for dysthymia and/or depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1981 to August 1986. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2006, the RO denied service connection for dysthymia and/or depression. The RO denied service connection for Epstein Barr Virus Syndrome, residuals of mononucleosis, in November 2007. In March 2010, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. At the time of the hearing, the Veteran submitted a copy of a medical record that had already been considered by the RO. Subsequent to the hearing, the Veteran submitted a CD-ROM copy of his Social Security Administration (SSA) records that had not been considered by the RO. A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the Veteran testified that he waived RO jurisdiction of the SSA records and also submitted a written waiver of any evidence submitted at the time of the Board hearing. The Epstein Barr Virus issue has been modified as represented on the cover page based on the evidence of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for dysthymia and/or depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in the Veteran's favor, the probative medical evidence of record shows chronic fatigue syndrome, which is shown as a residual of chronic Epstein Barr Virus that was first diagnosed in service in the form of mononucleosis. CONCLUSION OF LAW The criteria for service connection for Epstein Barr Virus Syndrome, residuals of mononucleosis, including chronic fatigue syndrome are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for Epstein Barr Virus Syndrome, which he contends is a direct result of contracting mononucleosis and not receiving proper treatment for it in the US Navy in 1984. In 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 § 1131. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the record shows a diagnosis of mononucleosis in service. A May 1982 service treatment record shows complaints of headaches, sore neck, and swollen glands. On physical examination, there was generalized stiffness in the neck exhibited. There was no enlargement or tenderness to the cervical glands, masses, or pain on palpation of the neck. The assessment was rule out tension headaches and mono. The plan was for a mono spot test. However, there is no record of any follow-up treatment at that time. A November 1984 medical record shows the Veteran went on sick call on October 29, 1984 for complaints of nasal congestion and "fullness" along with myalgias and headache. His physical examination was unremarkable and he was felt to have an upper respiratory infection and tension headache and was given Actifed and aspirin to be taken as needed. He was told to return if not better. He returned on November 5, 1984 complaining of cold symptoms including a sore throat and sore right cervical node. A throat culture was done and returned with normal flora. A mono-spot was also sent in at that time. He turned to the emergency room on November 7, 1984 complaining of severe sore throat and trouble swallowing. Clinical evaluation was positive for infectious mononucleosis. The discharge diagnosis was mononucleosis with exudative pharyngitis. An August 1986 discharge examination noted mononucleosis that was not considered disabling. Current medical evidence shows findings of chronic fatigue syndrome. A July 2004 VA treatment record notes an assessment of severe mono in 1985 and chronic fatigue. A VA physician assistant provided a statement in May 2007 noting that the Veteran had been under the medical care of VA since July 2004. His initial complaints were fatigue and depression and he informed his examiner that he had been diagnosed with mononucleosis in 1985 while on active duty with the military. His complaints had continued and had actually become more debilitating and included intermittent nausea and vomiting, anxiety, depression, myalgias, arthralgias, and extreme fatigue. As the record shows an in-service diagnosis of mononucleosis and current medical evidence shows a diagnosis of chronic fatigue syndrome, the determinative issue is whether there is any relationship between these. The positive medical evidence includes a May 2007 opinion from the VA physician assistant. She indicated that the diagnosis of chronic fatigue syndrome was due to a previous infection with Epstein Barr Virus (mononucleosis). The Veteran had carried the diagnosis of chronic fatigue syndrome since his enrollment with VA, which included all the symptoms that the Veteran had listed, and was a sequelae of mono. It was the physician assistant's opinion that it was more likely than not that the Veteran's continued complaints were a result of a reactivation of his Epstein Barr Virus that was initially diagnosed in 1985 while the Veteran was on active duty. A July 2007 medical statement from a VA physician notes that the Veteran had been treated with VA since July 2004 and under her care since February 2006. At their original visit, he recited a history of severe viral mononucleosis during his military duties. Since that time until the present he reported a history of ongoing chronic fatigue, sleep problems, headache, and neck lumpiness, which had affected his self care activities and relationships, culminating in aggravating his depression. In September 2005, the examiner took an evaluation of the Epstein Bar Virus titres to conclude that the Veteran did indeed demonstrate a pattern of chronic elevation of these titres supporting history exposure to Epstein Bar Virus. The repeat of these titres in May 2007 demonstrated a dramatic increase in these titres, suggesting a diagnosis of chronic Epstein Barr Virus infection and supporting a causative etiology in many of the Veteran's symptoms. Chronically elevated and increasing Epstein Bar Virus titres in addition to chronic cervical lymph node swelling, ongoing headaches, and sleep disturbances are many of the criteria used to diagnose chronic fatigue syndrome. Though causation by Epstein Bar Virus in all chronic fatigue syndrome patients has not been proven, for the Veteran, the evidence supports a chronic Epstein Bar Virus infection that could account for much of his symptom complex. The physician cited Center for Disease Control (CDC) sources on Epstein Barr Virus and Infectious Mononucleosis. The negative evidence includes a September 2007 opinion from a VA physician who noted that the Veteran developed mononucleosis in the Navy in 1984 and was claiming residuals of nausea, vomiting, anxiety, depression, myalgia, arthralgia, and extreme fatigue. The Veteran stated that he was mistreated in service but on review of the service treatment records, the physician determined that the Veteran had appropriate treatment based on his symptomatology. He recovered from his acute attacks and remained in the service for another two years. There is no further indication that he had any problems prior to his discharge. He subsequently had been diagnosed with chronic fatigue, depression, anxiety, mood swings, and hypertension. He also felt hot and cold. He stated that he last worked in June 2004 and that he slept for 12 to 20 hours per day. His current medical records confirmed his symptomatology. The VA physician noted the findings in the previous July 2007 VA medical opinion and indicated that he could not find any indication in the CDC studies cited in the previous opinion that proved a causative effect of chronic fatigue syndrome secondary to chronic Epstein Bar Virus titre elevation. The VA physician also noted the May 2007 opinion from the VA physician assistant that the diagnosis of chronic fatigue syndrome was due to previous infection with Epstein Barr Virus (mononucleosis). However, the VA physician pointed out that the physician assistant did not document any definitive research. The literature reported a causation of only two conditions secondary to Epstein Barr Virus, which were rare, and those were Burkitt's lymphoma and nasal pharyngeal carcinoma. The research did indicate that it could possibly cause chronic fatigue syndrome but that was not proven. It also stated that reactivation of the dormant virus was asymptomatic and that Epstein Barr Virus infected 90 to 95 percent of the world population. The Veteran had computed tomography (CT) scans of his neck in October 2005, which showed mild lymphadenopathy, felt to be reactive. A repeat CT scan in June 2006 showed no adenopathy. An office note in September 2005 from the previous VA physician noted that antibodies to Epstein Barr Virus were elevated but there was no indication in the claims file that they were elevated or how high they were elevated. The VA physician conducted laboratory studies, which showed that the hepatic profile was entirely within normal limits and the mono test was negative. The impression was mononucleosis (Epstein Barr Virus infection) and chronic fatigue syndrome. It was the examiner's opinion that in spite of the previous opinions from the VA physician and physician assistant that the Veteran's symptoms were secondary to chronic Epstein Barr Virus reactivation, there was no clear evidence that this correlation existed. Therefore, it was unlikely that his current symptom complex was secondary to his mononucleosis diagnosis made in 1984 while in the US Navy. Medical studies were added to the record, which are neither for nor against the claim. One online printout article on chronic fatigue syndrome notes that for a time it was thought that Epstein Barr virus, the cause of mononucleosis, might cause chronic fatigue syndrome but recent research had discounted this idea. A second article notes that the cause of chronic fatigue syndrome was unknown. A third article notes that chronic fatigue syndrome was possibly related to Epstein Barr virus. A fourth article notes that Epstein Barr Virus is typically characterized by fatigue, persistent and recurrent fevers, muscle aches and pains, swollen glands, joint aches and pains, depression, and headache. The study went on to note that there were no antibiotics or other treatments that would eradicate the virus and thereby eliminate the infection but that over time, symptoms usually resolved on their own. While some of the medical literature in the claims file is more favorable than others, at most, it only raises a possibility of a relationship between the mononucleosis diagnosis in service and the current diagnosis of chronic fatigue syndrome, and does not show any actual relationship in the Veteran's case. See Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991). However, the study that indicates that the virus is never eradicated is interesting in that it shows the virus that the Veteran contracted in service would persist to present time, whether or not there is any associated symptomatology. Also, one of the studies shows that Epstein Barr Virus symptoms including fatigue, persistent and recurrent fevers, muscle aches and pains, swollen glands, joint aches and pains, depression, and headache are the same symptoms the Veteran continues to complain about. The medical evidence of record is at least equally-balanced. The record shows that the Veteran developed mononucleosis in service, which is shown by medical evidence to be caused by Epstein Barr Virus, a virus that cannot be eradicated. The Veteran claims current symptomatology associated with the Epstein Barr Virus, including intermittent nausea and vomiting, myalgias, arthralgias, and extreme fatigue. He has a current diagnosis of chronic fatigue syndrome and two medical opinions of record support the finding that the Epstein Barr Virus contracted in service is related to the chronic fatigue syndrome. The July 2007 VA medical opinion noted that the dramatic increase in titres in May 2007 suggested a diagnosis of chronic Epstein Barr Virus infection and supported a causative etiology in many of the Veteran's symptoms. The July 2007 opinion further noted that chronically elevated and increasing Epstein Bar Virus titres in addition to chronic cervical lymph node swelling, ongoing headaches, and sleep disturbances are many of the criteria used to diagnose chronic fatigue syndrome, and that while causation was not shown in every case, in the Veteran's case his Epstein Barr Virus accounted for his symptoms. In response to this, the September 2007 negative VA opinion noted that the CDC studies cited in the July 2007 opinion did not prove a causative effect between chronic fatigue syndrome and chronic Epstein Bar Virus titre elevation and that there was no clear evidence that this correlation existed. However, there is no reason shown to value this opinion over the July 2007 VA medical opinion. Moreover, even the September 2007 VA examiner acknowledged that research indicated that Epstein Barr Virus was a possible cause of chronic fatigue syndrome. When the evidence for or against a claim is relatively equally-balanced, all doubt is resolved in favor of the claimant. See 38 C.F.R. § 3.102. Therefore, service connection for Epstein Barr Virus residuals including chronic fatigue syndrome is warranted. The Veteran's service connection claim for Epstein Barr Virus Syndrome, residuals of mononucleosis, including chronic fatigue syndrome has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER Entitlement to service connection for Epstein Barr Virus Syndrome, residuals of mononucleosis, including chronic fatigue syndrome is granted, subject to the rules and payment of monetary benefits. REMAND The Veteran seeks service connection for dysthymia and/or depression. The service treatment records show the Veteran was found to have an inappropriate reaction to his diagnosis of mononucleosis in service in November 1984 and was sent for a psychological evaluation. It was noted that he had exhibited abusive comments toward hospital staff and corpsmen. On mental status examination, there was no evidence of psychosis or gross organic brain syndrome. The examiner's impression was that there were background and personality factors, which seemed to explain his inordinate emotional display and behavior toward staff. There was no Axis I diagnosis; the Axis II diagnosis was mixed personality traits. The Veteran subsequently filed a formal complaint of disservice and it was noted in December 1984 that psychological profile testing suggested character problems including immaturity, passive- aggressive personality type, and conflict centering around impulse control. An August 1986 discharge examination report notes a diagnosis of situational depression, not considered disabling. After service, a November 1998 private treatment record notes a diagnosis of depression and prescription for Prozac. The Veteran received additional private treatment for depression in 1999 and 2003. VA treatment records dated from 2004 to 2007 show continued diagnoses of a mood disorder, anxiety disorder, depression, and dysthymic disorder. An August 2006 VA clinical psychologist found that the Veteran best met the criteria for a mood disorder based on ongoing symptoms of depression that included suicidal ideation, intense irritability, and diminished pleasure and interest in most activities. The examiner further found that the Veteran's medical conditions appeared to contribute to his fluctuating moods including a history of sleep apnea, Epstein Barr Virus, and hypogonadism. As the medical evidence shows a diagnosis of situational depression in service, post-service diagnoses of depression, mood disorder, dysthymic disorder, and anxiety disorder since approximately 13 years after service, and the Veteran's assertions that he has suffered from depression since service, a medical opinion is necessary to resolve whether there is any relationship between the present psychological diagnoses and service. The medical opinion also should address whether the (now) service-connected Epstein Barr Virus contributed to his psychological diagnoses. The Veteran also has identified outstanding private treatment records from Dr. Chung. He signed the proper release form in July 2005 for his treatment with Dr. Chung in 1994 for depression. The RO sent the Veteran a letter in March 2006 that the forms he had submitted had expired, as they only remained valid for 60 days. He was asked to return the forms again. The Veteran resubmitted release forms for Dr. Chung. The RO requested records from Dr. Chung in April 2006 and August 2006; but a response is not of record. On May 3, 2010, the Veteran indicated that he was still trying to get his treatment records from Dr. Chung showing treatment for depression since 1994 from the OSU-Harding Medical Records Center. He requested an additional 30 days to obtain the records, which has since passed. VA should make reasonable efforts to obtain these records identified by the Veteran; and the Veteran should be notified of any response or lack thereof. Additionally, the Veteran submitted a CD-ROM reflecting a grant of SSA disability benefits. These records should be reviewed. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. Make reasonable efforts to obtain treatment records for Dr. Carol Chung, as identified by the Veteran on a May 2010 written statement. Any responses from Dr. Chung or the OSU-Harding Medical Records Center should be recorded and the Veteran should be so notified and given an opportunity to respond. 2. Print out and review the SSA determination submitted by the Veteran in CD-ROM format. 3. Schedule the Veteran for a VA psychiatric examination to determine the etiology of his current psychological diagnoses including mood disorder, anxiety disorder, depression, and dysthymic disorder. Specifically, the examiner should state whether it is at least as likely as not (50 percent chance or greater) that the Veteran's current psychological diagnoses are related to the finding of situational depression in service. The examiner also should state whether it is at least as likely as not that his Epstein Barr Virus has contributed to his psychological diagnoses in any way, including whether the EBV caused the psychological diagnoses or aggravated the psychological diagnoses beyond their natural progress. A rationale for all opinions must be provided. The claims file must be reviewed in conjunction with the examination. 4. Thereafter, any additional development deemed necessary should be conducted. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs