Citation Nr: 1419924 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 10-36 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for chronic fatigue syndrome (CFS) and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1978 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim for entitlement to service connection for CFS. A hearing was held on September 25, 2012, by means of video conferencing equipment with the appellant in Wilkes-Barre, Pennsylvania, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. FINDINGS OF FACT 1. In a September 1998 rating decision, the RO denied service connection for fatigue, as due to an undiagnosed illness; during the relevant appeal period, the Veteran did not submit a notice of disagreement and new and material evidence was not received. 2. Evidence associated with the claims file since the September 1998 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for chronic fatigue syndrome. 3. The Veteran has not been shown to have CFS that is disabling for VA service connection purposes. CONCLUSIONS OF LAW 1. The September 1998 rating decision, in which the RO denied the Veteran's claim for entitlement to service connection for chronic fatigue, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. As evidence pertinent to the claim for service connection for CFS received since the RO's September 1998 denial is new and material, the criteria for reopening the claim is met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for CFS are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1118, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant regarding what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must inform the Veteran about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Without deciding whether the notice and development required have been satisfied with respect to the Veteran's claim to reopen the issue of entitlement to service connection for CFS, the Board concludes that these duties do not preclude the Board from adjudicating this claim, because the Board is taking favorable action. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist with regard to this claim, such error was harmless and need not be further considered because the decision to reopen poses no risk of prejudice to the Veteran. A predecisional letter sent February 2009, satisfied the requirements for notice following a claim for entitlement to service connection. The letter stated what the evidence must show for service connection on a direct and presumptive basis; described the evidence the Veteran was expected to provide and the evidence VA would seek to obtain; and explained how a disability rating and effective date would be determined. See Dingess/Hartman, 19 Vet. App. 473. On the other hand, the Veteran did not receive notice of what was needed to substantiate claims of service connection based on a secondary service connection theory of entitlement, although the veteran has also asserted that his CFS is related to his service-connected fibromyalgia. Claims for service connection on a direct, secondary, and presumptive basis all require the presence of a current disability. The Veteran was notified of this requirement through the February 2009 letter, and that element of a service connection claim is the basis on which this decision turns. Therefore, the Board finds that a remand to issue a notice letter with regards to establishing service connection on a secondary basis is not needed. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The duty to assist was also met in this case. The claims file contains the Veteran's service treatment records, VA and private treatment records, as well as statements from the Veteran and his representative. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Veteran was afforded VA examinations in June 2009 and August 2012 regarding his CFS claim. Both examiners reviewed the Veteran's claims file and recorded the Veteran's reported history and subjective complaints. Neither VA examiner found that the Veteran had symptoms of such a severity to qualify for a diagnosis of CFS for VA purposes. As the relevant criteria were laid out and addressed in detail, the Board finds that the Veteran has been provided with adequate VA examination with regard to his claim. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4) (2013). The available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. II. New and Material Evidence In a September 1998 rating decision, the RO denied service connection for fatigue, as due to an undiagnosed illness; during the relevant appeal period, the Veteran did not submit a notice of disagreement and new and material evidence was not received. The RO's September 1998 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c) (West 1991); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (1998). The evidence of record for the September 1998 rating decision consisted of service personnel records, service treatment records, VA outpatient and private treatment records, a VA examination, and statements from the Veteran. The basis for the RO's September 1998 denial on the merits was that there was no medical evidence supporting the Veteran's subjective complaints of chronic fatigue. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Additionally, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's September 1998 rating decision. Treatment records from the Wilkes-Barre VA Medical Center (VAMC), from July 2009 and December 2009, provide the Veteran with diagnoses of both fibromyalgia and chronic fatigue syndrome. This evidence goes to proving the presence of a current disability and is therefore not cumulative or redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Thus, it is new and material, and reopening the claim for service connection for CFS is warranted. III. Service Connection for CFS The Veteran contends that he has CFS related to his service in the Southwest Asia theater of operations during the Persian Gulf War in 1991. The specific dates encompassing the "periods of war" are set by statute, to include the Persian Gulf War beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.3(i). Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness or medically unexplained chronic multisymptom illness, that became manifest either during active 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 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as CFS, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c). As an initial matter, the diseases for which the Secretary has established a presumption under subpart (3) are all infectious in nature. The Veteran does not allege and the record does not suggest that he has any of the listed infectious diseases. The Veteran is currently service-connected for fibromyalgia, as a medically unexplained chronic multisymptom illness presumptively related to his service in the Southwest Asia theater of operations during the Persian Gulf War, under 38 C.F.R. § 3.317(a). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010). The Veteran's CFS claim can be considered on several legal theories. First, service connection could be established on a direct basis under 38 U.S.C.A. § 1110 based upon a current disability as first manifesting during, or etiologically related to service. Second, under 38 U.S.C.A. § 1117(a)(2) and 38 C.F.R. § 3.317(a)(2)(i), CFS may be service-connected on a presumptive basis. For VA purposes, a diagnosis of CFS requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a. The Veteran was provided with two VA examinations, in June 2009 and August 2012, regarding his claimed CFS. The June 2009 examiner noted that the Veteran denied new onset of debilitating fatigue severe enough to reduce or impair average daily activity to below 50 percent of his pre-illness activity level for a period of 6 months. Acute onset was found to not be present, as the Veteran reported that he noticed that his fatigue started a few years ago, gradually, and that the problem progressively worsened such that he felt tired during the day a lot. Poor concentration was noted. The examiner also noted generalized muscle aches or weakness, preceding and throughout the pendency of the period of fatigue, also noting that prior medical records show arthritis of the lower spine and fibromyalgia. Migratory joint pain was also noted. The Veteran denied fatigue lasting for 24 hours or longer following exercise. He noted that he had been exercising but stopped around the time he had surgery, approximately two years prior. The Veteran reported that he recently began exercising with light weights and using an elliptical machine or treadmill, and did not report fatigue lasting 24 hours or longer following this exercise. Sleep disturbance was noted to have an onset prior to the onset of fatigue and to be associated with fibromyalgia symptoms historically. Regarding his employment, the Veteran reported working as the lead motor vehicle operator and being in charge of the grounds at the Wilkes-Barre VAMC for 27 years, as of February 2009. He reported working forty-hour weeks with overtime related to snow removal in the winter months, and eligibility for retirement in 2010. The Veteran stated that he used sick leave of roughly 2 to 3 days per month. The examiner concluded that a review of the medical records was positive for depression as well as fibromyalgia that would confound the diagnosis of CFS. The Veteran was diagnosed with fibromyalgia, and the examiner concluded that the Veteran does not meet the established requirements necessary to establish a diagnosis of CFS. At the August 2012 VA examination, the Veteran reported an increase in fatigue approximately 3 to 4 years ago. He stated that he has difficulty recovering from physical activity, usually taking more than one day to recover. The Veteran also noted that his symptoms of fatigue are up and down, not constant. He described disturbed sleep, primarily from muscle pain and some joint pain. Continuous medication was noted as not required for control of CFS, the Veteran did not have an acute onset of CFS, and the Veteran denied that debilitating fatigue had reduced daily activity levels to less than 50 percent of the pre-illness level. The VA examiner documented signs and symptoms attributable to CFS including generalized muscle aches or weakens, fatigue lasting 24 hours or longer after exercise, and sleep disturbance. The symptoms were noted to wax and wane, and the examiner documented that the Veteran's symptoms of fatigue vary with the amount of his physical activity on a day to day basis, without large swings in symptoms. The Veteran reported that even after rest, he fatigues with light activity. The report documents that the Veteran's symptoms due to CFS do not restrict routine daily activities as compared to the pre-illness level, do not result in periods of incapacitation, and do not affect the Veteran's ability to work. The examiner opined that the Veteran does not have CFS, but instead has fibromyalgia. He reasoned that the symptoms that distinguish CFS from fibromyalgia are mild fever or chills and sore throat, none of which are documented in the Veteran's treatment records or are reported by the Veteran. The Veteran received regular treatment through the Wilkes-Barre VAMC, and the record contains treatment notes from his approximately biannual appointments with the rheumatology division. In June 2009, the Veteran reported to the nursing clinic with a chief complaint of fibromyalgia and chronic fatigue. At a July 2009 follow-up, the Veteran reported a longstanding history of fibromyalgia with diffuse pain in the upper and lower half of his body. The physician assistant (PA), who would regularly see the Veteran, wrote that in relation to his chronic fatigue syndrome, the Veteran reports that he continued to experience "modest fatigue when he overdoes it or over exerts himself," and reports being washed out for a few days afterwards. In general, the Veteran reported feeling poorly and very tired, needing to stop and rest and feeling as though he wants to sleep quite frequently. The Veteran was assessed with fibromyalgia and chronic fatigue syndrome. At the November 2009 follow-up on fibromyalgia and chronic fatigue syndrome, the rheumatology PA noted that the Veteran was placed on Modafinil, starting in July 2009, to try to help with fatigue. The Veteran reported that it helps him, but that by about midday, roughly around 3:00-4:00, he starts to notice excessive fatigue again that is interfering with his activities of daily living and quality of life. The PA assessed fibromyalgia and chronic fatigue syndrome. Under plan, it was noted that the PA advised the Veteran to discuss with his primary care physician regarding possible endocrine evaluation if he thinks that this may be appropriate to try and evaluate additional sources of his fatigue or if it is just primarily chronic fatigue syndrome. Regular VAMC rheumatology treatment records continue to document the Veteran's complaints of fatigue. In December 2009, the Veteran reported some increase in his fatigue. The assessment was chronic fatigue syndrome and exacerbation of fibromyalgia. In July 2010, the Veteran stated that he was not noticing as much fatigue and had not needed to take the Modafinil as frequently as he had previously. In January 2011, the note indicates that the Veteran had been on Modafinil daily for his fatigue, but that he stopped taking it for a few months. The Veteran reported that his fatigue was relatively significant and wondered whether he could go back on the medication. Past medical history was noted to include fibromyalgia and CFS. Finally, in July 2011, the Veteran reported being significantly bothered by the amount of fatigue he has associated with his fibromyalgia. The PA noted that they had tried putting the Veteran on Modafinil in the past with poor results. The Veteran reported his fatigue was affecting his activities of daily living. He was assessed with fibromyalgia. The Veteran testified at a Board hearing in September 2012. At that time, he explained that although he had not reported low-grade fever or sore throat to the August 2012 VA examiner, he believed that he did not fully consider the question. Upon beginning to regularly take his temperature and further contemplate his symptoms, he believed he misspoke and that he in fact has regular low-grade fever and a scratchy throat. The Veteran also testified that he has sleep disturbances and fatigue. He explained that he has always been an active person, golfing and working outside, and playing football in his younger days. The Veteran described that he experienced the onset of really bad fatigue in the last couple of years that affects his daily activities. He said that even if he goes golfing at the end of the day, he is just fatigued. He described his fatigue by saying, "[just] the normal day at work normally you go home, you do stuff. I get home I really, I just like I can't." He described feeling heavily fatigued sometimes even after a good night's sleep. The Veteran also reported that after a day of snow removal at work, it now takes him days to recover whereas before he would be good-to-go again after a night of 10 or 11 hours of sleep. He stated that "it affects my daily activities which kind of upsets me a little bit." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for CFS because the evidence does not demonstrate that the Veteran has manifestations of chronic fatigue syndrome that meet the requirements of 38 C.F.R. § 4.88a. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran has the disability for which benefits are being claimed. In this case, there are medical opinions for and against the Veteran's claim that he currently has CFS. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not, however, reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Other factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Both the August 2012 and the June 2009 VA examiners concluded that the Veteran did not meet the established requirements of the VA definition for chronic fatigue syndrome. In pertinent part, the Veteran denied experiencing debilitating fatigue severe enough to reduce daily activity level to less than 50 percent of pre-illness level. Both examiners reviewed the Veteran's medical history contained in his VA claims file, and interviewed the Veteran, in order to come to their conclusions. The Board finds that the reports of the VA examiners should be accorded significant probative weight, as they were based on full consideration of the Veteran's documented history and assertions, and are supported by a clear rationale. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). Additionally, both examinations included detailed findings with regard to each of the elements required for diagnosis of chronic fatigue syndrome for VA purposes, pursuant to §38 C.F.R. § 4.88a. As an aside, although the August 2012 examiner opined that the Veteran did not have CFS, as opposed to fibromyalgia, because the Veteran did not exhibit such symptoms as low-grade fever and sore throat, the Veteran's subsequent testimony that he in fact had those symptoms does not change the examiner's findings related to the extent of limitation of activities of daily living due to fatigue. The Board notes that the Veteran's chronic fatigue has been documented, and he has been provided with a medical diagnosis of chronic fatigue syndrome by his rheumatology treatment provider at the Wilkes-Barre VAMC. However, although the relevant treatment records contain mention from the Veteran of varying levels of fatigue, which at times affect his activities of daily living, there is nothing contained in these records that would lead the Board to conclude that the physician assistant who provided the medical diagnosis contemplated the level of symptomatology required by VA, in 38 C.F.R. § 4.88a, for a finding of a CFS disability for VA purposes. For this reason, the Board finds this diagnosis to carry little probative weight. The Board also notes that the Veteran was provided with a diagnosis of CFS by a Persian Gulf Registry physician in April 1997, and was diagnosed with "chronic general joint pain and fatigue syndrome" in an October 1995 VA examination report. However, as neither diagnosis is accompanied by evidence demonstrating restriction on daily activities, and both predate the relevant claim period by more than 10 years, they are found to carry little probative weight as to the question of whether the Veteran has a current disability of CFS for VA purposes. The Board has also considered the Veteran's lay statements, both recorded in VA treatment records and as presented to the Board at the September 2012 hearing. Regarding the effects of his fatigue on activities of daily living, the Veteran has reported the following: feeling poorly and very tired, needing to stop and rest and feeling as though he wants to sleep frequently (in July 2009); starting to notice excessive fatigue that is interfering with his activities of daily living and quality of life (in November 2009); being significantly bothered by the amount of fatigue associated with his fibromyalgia, affecting his activities of daily living (in July 2011); and being fatigued if he goes golfing, and getting home after a normal day at work and being unable to do other activities (September 2012). The Board finds that these descriptions would not seem to rise to the level of "debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months." See 38 C.F.R. § 4.88a(1). Additionally, when questioned directly about the effect on his activities of daily living, at the June 2009 and August 2012 VA examination, he denied experiencing fatigue severe enough to reduce daily activity level to less than 50 percent. The weight of the evidence demonstrates that while the Veteran likely experiences some impairment of his activities of daily living due to fatigue, he has not experienced debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months. For these reasons, the Board finds that the most probative evidence of record indicates that the Veteran does not have chronic fatigue syndrome for VA purposes, and therefore, service connection is not warranted. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for CFS must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER New and material evidence having been submitted, the claim for service connection for chronic fatigue syndrome is reopened. Service connection for chronic fatigue syndrome is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs