Citation Nr: 1447961 Decision Date: 10/29/14 Archive Date: 11/05/14 DOCKET NO. 11-22 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for restless leg syndrome. 3. Entitlement to service connection for fibromyalgia, to include muscle and joint pain, and muscle spasms and cramping of the shoulders, knees, ankles, neck and back. 4. Entitlement to service connection for chronic fatigue syndrome, claimed as fatigue. 5. Entitlement to service connection for a respiratory condition, claimed as allergic rhinitis, asthma, sinus infection and coughing. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty for training from January 1988 to June 1988. He served on active duty from December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In addition to the listed issues, the Veteran also disagreed with the 10 percent rating for irritable bowel syndrome (IBS) and with the denials of service connection for bilateral hearing loss, hypertension, colon polyps, and depression, anxiety, and panic attacks. In June 2011, the RO increased the rating for IBS to 30 percent effective from the date of claim. This is the maximum schedular rating available for IBS and considering the Veteran's statements that he wanted a 30 percent rating, the RO considered this a complete grant and found the issue resolved. The Board agrees and as such, this issue is not for consideration. The issues of entitlement to service connection for bilateral hearing loss, hypertension, and colon polyps were addressed in the June 2011 statement of the case. The Veteran, however, did not include these issues on his VA Form 9 and thus, they were not perfected for appeal. In December 2013, the RO granted service connection for PTSD and assigned a 70 percent rating from February 26, 2013. In March 2014, the RO granted service connection for major depressive disorder and included that with the evaluation for PTSD. An earlier effective date to April 23, 2010 was also established. The April 2014 notification letter advised the Veteran that this grant fully resolved his appeal of the psychiatric disorder issue. The Board agrees and this issue is no longer for consideration. The Board notes that the Veteran's headaches were initially considered part of his psychiatric claim. The issue was separately listed in the March 2014 supplemental statement of the case and remains for consideration. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board has recharacterized the fibromyalgia issue to consider the joints identified on VA examination. The March 2014 supplemental statement of the case addressed the identified strains and degenerative joint disease and thus, the Veteran is not prejudiced by this action. See Bernard v. Brown, 4 Vet. App. 384 (1993). This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. The issue of entitlement to service connection for pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in Southwest Asia from January to May 1991 and is a Persian Gulf Veteran. 2. Restless leg syndrome is a diagnosed disorder and the preponderance of the evidence is against finding that it is related to active military service or events therein. 3. The Veteran does not have a confirmed diagnosis of fibromyalgia and his complaints of muscle and joint pain, and muscle spasms and cramping of the shoulders, knees, ankles, neck and back have been related to diagnosed strains and/or degenerative joint disease. The preponderance of the evidence is against finding that arthritis of the claimed joints was manifested within one year following discharge from service or that the diagnosed conditions are otherwise related to active military service or events therein. 4. The Veteran does not have a confirmed diagnosis of chronic fatigue syndrome; to the extent his complaints of fatigue are due to undiagnosed illness, they are not manifest to a compensable degree under Diagnostic Code 6354. 5. The Veteran's respiratory complaints are related to diagnosed disorders, namely allergic rhinitis and exercise induced asthma, and the preponderance of the evidence is against finding that such diagnoses are related to active military service or events therein. 6. Sleep apnea is a diagnosed disorder and the preponderance of the evidence is against finding that it is related to active military service or events therein. 7. Migraine and tension headaches are diagnosed disorders and the preponderance of the evidence is against finding that they are related to active military service or events therein. CONCLUSIONS OF LAW 1. Restless leg syndrome was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2014). 2. Fibromyalgia, to include muscle and joint pain, and muscle spasms and cramping of the shoulders, knees, ankles, neck and back, was not incurred in or aggravated during service, nor may any arthritis of these joints be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.317 (2014). 3. Chronic fatigue syndrome was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317, 4.88b, Diagnostic Code 6354 (2014). 4. A respiratory disorder, claimed as allergic rhinitis, asthma, sinus infection and coughing, was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 5. Sleep apnea was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 6. Headaches were not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in June 2010 and April 2013, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was also advised how VA assigns disability ratings and effective dates. The claims were most recently readjudicated in the March 2014 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence to substantiate his claims. The claims folder contains service treatment records, VA medical center records, and identified private medical records. The Veteran was provided numerous examinations throughout the course of the appeal which address the nature and etiology of his claimed conditions. Specifically, whether the claimed disorders are diagnosed and/or are related to environmental exposures in the Persian Gulf. The Veteran does not assert that the disabilities are otherwise related to service and additional examinations are not needed as to the issues decided herein. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The Board observes that the regulation set forth at 38 C.F.R. § 3.303(b) benefits only chronic disease as listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which 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 31, 2016; and 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). A "qualifying chronic disability" includes an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "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. 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. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3), (4). Manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to fatigue; signs or symptoms involving skin; headache; muscle pain; joint pain; neurological 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). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court), however, held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. Moreover, review of a claims file by a VA examiner, without more, does not automatically render the examiner's opinion competent or persuasive, and conversely, a private medical opinion may not be discounted solely because the opining clinician did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014). Analysis The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). With the exception of pes planus, the Veteran generally argues that his claimed disabilities are related to environmental exposures in the Persian Gulf, to include that he suffers from a medically unexplained chronic multisymptom illness. The Veteran reports exposure to environmental hazards, such as oil well fires, and considering the circumstances of his service, the Board concedes such exposure. As to all issues addressed herein, the Board has considered the lay statements of record and acknowledges that the Veteran and his family members are competent to describe his symptoms and their onset. As concerns diagnoses and etiology, however, the unsupported lay assertions are not found sufficient to outweigh the probative medical evidence discussed herein. Restless leg syndrome Service treatment records are negative for any complaints or treatment related to restless leg syndrome. On examinations in April 1991 and in November 1991, the Veteran's lower extremities and neurologic systems were reported as normal. On Persian Gulf Registry examination in March 1994, the Veteran's lower extremities and neurologic systems were reported as normal. In a July 2010 statement, a private nurse practitioner stated that the Veteran had been their patient since he was in his teens. Since his return from Desert Storm, he had many complaints and illnesses, to include restless leg syndrome. She indicated that he had seen numerous specialists but nothing specific could be found as a cause. She opined that it was very likely that some and/or all of the conditions were a result of his exposure in Desert Storm. On VA examination in January 2011, the Veteran reported that he had a sleep study which showed restless legs and he continues to suffer from this despite treatment with Requip. This was diagnosed in roughly the late 1990's. He feels like his legs need to be in constant motion, especially at night. Assessment was restless leg syndrome, which is a diagnosed condition. VA examination in May 2013 showed a diagnosis of restless leg syndrome. It was noted that the 2006 sleep study only documented "occasional leg movements." The examiner opined that the Veteran's restless leg syndrome was unrelated to any environmental exposures because environmental exposures are not known to cause restless leg syndrome and it was not an undiagnosed illness. In a February 2014 addendum, the examiner stated that restless legs syndrome was a diagnosed chronic illness with a partially understood etiology including low ferritin, genetic predisposition, venous insufficiency, etc. As set forth, the Veteran has been diagnosed with restless leg syndrome. The claimed condition is not shown to be undiagnosed or part of an unexplained chronic multisymptom illness. Thus, service connection is not warranted under 38 C.F.R. § 3.317. On review, there is no evidence of restless leg syndrome during the Veteran's period of active service or for several years thereafter. Notwithstanding, the Board must consider whether the currently diagnosed disorder is related to active duty service or events therein, to include his claimed environmental exposures. The claims folder contains both positive and negative nexus opinions and as noted above, the Board is free to favor one opinion over the other. See Evans. For various reasons, the Board finds the VA opinions, which were rendered by a medical doctor, more probative than that of the private nurse practitioner. The VA examiner reviewed the claims folder and provided a rationale for the opinion that restless leg syndrome was not related to environmental exposures. There is no indication that the private examiner reviewed the claims folder. Further, the private opinion is somewhat speculative as it does not specifically identify which conditions are related to environment exposures or why, nor does it consider other etiologies. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Fibromyalgia, to include muscle and joint pain, and muscle spasms and cramping of the shoulders, knees, ankles, neck and back Service treatment records are negative for any complaints or findings related to fibromyalgia. On examinations in April 1991 and November 1991, the Veteran's upper extremities, lower extremities, and spine were all reported as normal on clinical evaluation. In the April 1991 and November 1991 Reports of Medical History, the Veteran denied any leg cramps, bone, joint or other deformity, painful shoulder, recurrent back pain, or trick or locked knees. On Persian Gulf Registry examination in March 1994, the Veteran's upper extremities, lower extremities, and spine were reported as normal. Private orthopedic records dated in August 2003 show the Veteran complained of bilateral knee pain for the last six months when running or playing basketball. X-rays of the knees were normal and diagnosis was patella tendonitis. Private medical records show that the Veteran was in a car accident in October 2009 where he suffered a cervical spine strain. The cervical spine CT scan showed degenerative changes at C6-C7. In a statement received in August 2010, the Veteran's spouse indicated that since his return from the Persian Gulf, the Veteran has been dealing with a lot of muscle and joint pain and has trouble being on his feet or walking for any length of time. On VA examination in January 2011, the Veteran reported that his joint pains started in the 1990's and that he has pain in his knees, ankles, neck, back, and shoulders. Following physical examination, the examiner stated that there was no evidence of fibromyalgia and that the number of positive trigger points was low. He did, however, have the following diagnosed conditions: chronic bilateral patellofemoral syndrome, chronic bilateral ankle sprains, cervical spine degenerative change, chronic lumbar spine strain, and chronic bilateral rotator cuff tendonitis. The examiner noted that none of these conditions was known to be caused by possible hazardous environmental exposures. The Veteran underwent extensive VA examinations in May 2013. On the worksheet for evaluating shoulder conditions, the examiner noted a diagnosis of chronic bilateral shoulder strains in 1993 and a diagnosis of right shoulder degenerative joint disease in 2013. The Veteran reported bilateral shoulder pain for 20 years without any history of a traumatic event. His prior biceps tendon tear was a separate unrelated injury. The examiner stated that the bilateral shoulder strains were unrelated to any environmental exposures because they are not known to cause strains. This was not an undiagnosed illness and the right shoulder degenerative joint disease was unrelated to the chronic shoulder strains because they do not cause degenerative joint disease. On the worksheet for evaluating knee conditions, the Veteran reported bilateral knee pain for 20 years. Diagnosis was bilateral patellar tendonitis. The examiner remarked that this was unrelated to any environmental exposures because they are not known to cause strains/tendonitis. This is not an undiagnosed illness. The examiner further stated that the knee x-rays were normal and had been normal in the past. On the worksheet for evaluating ankle conditions, the Veteran reported that he has had bilateral ankle pain for 20 years without precipitating injury. The Veteran was diagnosed with bilateral ankle strains. X-rays were normal. The examiner noted that the strains were unrelated to any environmental exposure because they are not known to cause strains. This was not an undiagnosed illness. The examiner further stated that it was more likely that the Veteran had chronic bilateral ankle strains based on his history even though the physical examination was normal. On the worksheet for evaluating neck conditions, the Veteran reported that he started having significant neck pain after his motor vehicle accident in October 2009. It was noted that x-rays in 2009 documented cervical degenerative joint disease. The examiner stated that neck strain was unrelated to any environmental exposures because they are not known to cause neck strains. This was not an undiagnosed illness. On the worksheet for evaluating back conditions, the Veteran reported that he has had back pain for 20 years without any traumatic event. X-rays showed degenerative disc changes of the lumbosacral spine. A diagnosis of back strain was also shown. The examiner stated that the Veteran's back strain was unrelated to any environmental exposures because they are not known to cause strains. This is not an undiagnosed illness. The back degenerative disc disease was unrelated to the back strain because strains do not cause degenerative disc disease. On the fibromyalgia worksheet, the examiner noted that the Veteran stated he was told by his private nurse practitioner that he might have fibromyalgia due to his fatigue and joint pain, but this was not noted in the claims folder. Following examination, the examiner remarked that the Veteran was objectively tender to palpation only on the bilateral upper outer quadrant of the buttocks/gluteals and all of the other trigger points were negative. In the examiner's opinion, the Veteran did not meet the criteria for fibromyalgia and had not met them in the past. There was no undiagnosed illness and his complaints could be explained by his multiple strains and sites of degenerative joint disease. In the February 2014 addendum, the VA examiner stated that bilateral ankle strains, bilateral patellar tendonitis, bilateral shoulder strains, and back strain were diagnosed illnesses with a known etiology of musculoskeletal ligamentous damage. Back degenerative disc disease was a diagnosed illness with a known etiology of damage to the spinal disc architecture. Right shoulder degenerative disc disease was a diagnosed illness with a known etiology of bony damage. Cervical degenerative disc disease (strain) was a diagnosed illness with a known etiology of musculoskeletal ligamentous damage and damage to the spinal disc architecture. Initially, the Board acknowledges that fibromyalgia is a medically unexplained chronic multisymptom illness. The Veteran, however, is not shown to have a confirmed diagnosis of fibromyalgia. Rather, all of his complaints of joint pain, etc. pertaining to his shoulders, knees, ankles, neck and back have been attributed to known clinical diagnoses (i.e., strains and degenerative disc/joint disease). Thus, service connection is not warranted under 38 C.F.R. § 3.317. As concerns degenerative disc disease of the lumbar spine, cervical spine, and right shoulder, there is no evidence that these conditions manifested to a compensable degree within one year following discharge from active service. Service connection on a presumptive basis as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309. Arthritis was not noted during service and 38 C.F.R. § 3.303(b) is also not for consideration. In considering whether the claimed joint conditions are otherwise related to service, the Board notes that there is no evidence of these conditions during service and the VA opinions of record do not relate them to service or reported environmental exposures. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Chronic fatigue syndrome, claimed as fatigue Service treatment records are negative for any complaints or findings related to chronic fatigue syndrome. On Southwest Asia Demobilization/Redeployment Medical Evaluations completed in April and May 1991, the Veteran specifically denied having any fatigue. Private records show that the Veteran underwent thyroid function tests for fatigue in October 2006. TSH and Free T4 levels were within the reference ranges. In a July 2010 statement, a private nurse practitioner indicated that the Veteran had been seen multiple times since his return from the war and that he had numerous complaints and illnesses including chronic fatigue. She noted that he had seen numerous specialists and had numerous testing and nothing specific could be found as a cause. It was her opinion that it was very likely that some and/or all of those conditions were a result of his exposures in Desert Storm. In a statement from the Veteran's wife received in August 2010, she reported that since returning from the Gulf he seemed to be tired quite often. On VA examination in January 2011, the Veteran reported that there was no acute onset of the fatigue. He noticed it when he came back from the Gulf War in 1991 and it has gotten worse through the years. Following examination, the examiner stated that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome (CFS) and that all of his symptoms were related to diagnosed depression, anxiety, restless leg syndrome, and sleep apnea. On VA examination in May 2013, the Veteran stated that 10 years ago he noticed he was having some fatigue, prior to starting CPAP. His symptoms improved somewhat following CPAP usage. The examiner noted that per a medical note from November 2012, no fatigue symptoms were present. Following the examination, the examiner opined that the Veteran did not meet the criteria for CFS because he was still able to work full time on average 5 days a week with minimal time lost from work. He did not have an undiagnosed illness. Initially, the Board acknowledges that chronic fatigue syndrome is a medically unexplained chronic multisymptom illness. The Veteran is not shown to have a confirmed diagnosis and service connection is not warranted on that basis. According to the VA examiner, the Veteran's complaints of fatigue were related to other diagnosed disorders. The Board notes, however, that his private nurse practitioner indicated he suffered from chronic fatigue and essentially stated that there was no specific cause found. Resolving reasonable doubt in the Veteran's favor and even assuming that the Veteran's complaints of fatigue are due to undiagnosed illness, the Board finds that the claim still fails. In order to establish service connection under 38 C.F.R. § 3.317, the disability must have become manifest either during active military service in Southwest Asia, or to a compensable degree not later than December 31, 2016. There is no indication that fatigue was manifest during service. Pursuant to the rating schedule, a 10 percent evaluation is warranted for chronic fatigue syndrome when there is debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms, which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.88b, Diagnostic Code 6354. Note to this provision indicates that for the purpose of evaluating this disability, the condition will be considered incapacitating only while it required bed rest and treatment by a physician. Id. The May 2013 examiner noted that the Veteran does not take medications to control his fatigue nor did he have signs or symptoms such as debilitating fatigue or cognitive impairments that resulted in periods of incapacitation. Accordingly, while the Veteran has complaints of fatigue, they are not shown to have manifested to a compensable degree. Thus, the criteria for service connection under 38 C.F.R. § 3.317 are not met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Respiratory condition, claimed as allergic rhinitis, asthma, sinus infection and coughing Service treatment records are negative for complaints or findings related to respiratory conditions. On the Reports of Medical History completed in April and November 1991, the Veteran denied asthma, shortness of breath, chronic cough, and sinusitis. On corresponding physical examinations, the lungs and chest were reported as normal. On demobilization reports completed in April and May 1991, the Veteran specifically denied having a cough or sinus infection. On Persian Gulf Registry examination in March 1994, the Veteran's chest was normal. Pulmonary function tests from February 1994 showed normal FEV-1 and FVC values. In a July 2010 statement, a private nurse practitioner indicated that for the past 20 years the Veteran had numerous complaints including chronic coughs. She noted that he had seen numerous specialists and had numerous testing and nothing specific could be found as a cause for these issues. It was very likely that some and/or all of the chronic conditions were a result of his exposure in Desert Storm. In a statement from the Veteran's wife received in August 2010, she reported that since returning from the Gulf he has suffered respiratory problems and constantly coughs. A January 2011 VA record interpreted PFT's from December 2010 as normal. On VA examination in January 2011, the Veteran reported that it is hard to breathe at times and he feels like he has a smoker's cough even though he has never smoked. Following examination, assessment was no evidence of any lung condition by history, exam or PFT's. All his symptoms were due to allergic rhinitis which was a diagnosed condition. The examiner stated that the allergic rhinitis could have been temporarily aggravated by an exposure but not permanently so. Thus, it was the examiner's opinion that the condition was not caused by or related to possible hazardous environmental exposures. On VA examination in May 2013, the Veteran stated that he coughed with strenuous activity. He uses an albuterol inhaler which improves his symptoms. Following examination and PFT's, the examiner opined that it was more likely than not that the Veteran had exercise induced asthma, which was not an undiagnosed illness, and which had not been shown to be related to any environmental exposures. It was further noted that the symptoms did not significantly present until about 10 years after exposure. In a February 2014 addendum, the examiner stated that asthma was a diagnosed illness with a known etiology of reactive airway disease. As set forth, the Veteran's complaints of chronic cough, etc. have been related to diagnosed disorders (asthma and allergic rhinitis). The claimed conditions are not shown to be undiagnosed or part of an unexplained chronic multisymptom illness. Thus, service connection is not warranted under 38 C.F.R. § 3.317. On review, there is no evidence of a respiratory disorder during the Veteran's period of service or for several years thereafter. Notwithstanding, the Board must consider whether the currently diagnosed disorder is related to active service or events therein, to include his claimed environmental exposures. The claims folder contains both positive and negative opinions. As set forth, the private nurse practitioner related the chronic cough to Desert Storm exposures. The January 2011 examiner determined that the allergic rhinitis could have been aggravated but not on a permanent basis, and the May 2013 examiner determined that exercice induced asthma was not related to environmental exposures. As noted, the Board is free to favor one opinion over the other. See Evans. Again, and for the reasons previously explained, the Board finds the VA medical opinions more probative than that of the nurse practitioner. The probative evidence simply does not relate current disability to the Veteran's period of active service. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Sleep apnea Service treatment records are negative for complaints or findings related to sleep apnea. On Reports of Medical History completed in April and November 1991 and demobilization evaluations in April and May 1991, the Veteran denied trouble sleeping. A November 2006 private record shows that the Veteran presented with a history of prominent snoring, poor-quality sleep and subjective excessive daytime somnolence. He underwent an all-night polysomnographic recording which showed: (1) primary snoring with upper airway resistance syndrome; and (2) subjective hypersomnia secondary to #1 with a high arousal-awakening index and documented snoring event-related arousals. In July 2010, a private nurse practitioner stated that the Veteran had been seen in their clinic multiple times since his return from Desert Storm. He had numerous complaints and illnesses, including sleep apnea, had seen numerous specialists, had numerous testing, and nothing specific could be found as a cause of these issues. It was very likely that some and/or all of the chronic conditions were a result of his exposure in Desert Storm. On VA examination in January 2011, the examiner cited the 2006 sleep study results and noted the Veteran's report that the CPAP machine helps him get to sleep more quickly but he still has trouble feeling fatigued in the morning. Assessment was sleep apnea, which is a diagnosed condition. The examiner stated that this was not caused by or related to possible hazardous environmental exposures. On VA examination in May 2013, the Veteran reported that he had a sleep study in 2006 due to "gasping for air in the middle of the night." He had been using a CPAP since that time. The examiner opined that it was unlikely that the Veteran's sleep apnea variant was due to any environmental exposures because such are not known to cause this and it was not an undiagnosed illness. In the February 2014 addendum, the VA examiner stated that sleep apnea was a diagnosed illness with a known etiology due to upper airway resistance. As set forth, the Veteran has been diagnosed with upper airway resistance syndrome, a sleep apnea variant. The claimed condition is not shown to be undiagnosed or part of an unexplained chronic multisymptom illness. Thus, service connection is not warranted under 38 C.F.R. § 3.317. On review, there is no evidence of sleep apnea during the Veteran's period of active service or for several years thereafter. Notwithstanding, the Board must consider whether the currently diagnosed disorder is related to active duty service or events therein, to include his claimed environmental exposures. The claims folder contains both positive and negative nexus opinions. Again and for the reasons previously explained, the Board finds the VA medical opinions to be more probative. The probative evidence simply does not relate current disability to the Veteran's period of active service. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Headaches Service treatment records do not show complaints or treatment related to headaches. On Report of Medical History completed in April 1991, the Veteran denied frequent or severe headaches and on examination, his neurologic system was reported as normal. On the November 1991 Report of Medical History, the Veteran answered "don't know" to whether he had frequent or severe headaches. Neurologic system was normal on the corresponding examination. On the March 1994 Persian Gulf Registry examination, the Veteran reported headaches, which were described as occasional and "not a lot". Private records show that the Veteran was in a motor vehicle accident in October 2009. Impression was cervical strain and headache secondary to motor vehicle collision. In a statement from the Veteran's mother, received in August 2010, she indicated that he had problems since returning from deployment and had been suffering from headaches. In an April 2013 statement from the Veteran, he reported that his headaches began while in Iraq and the etiology of the headaches remained unknown. His wife also submitted a statement indicating that he has had headaches for many years since returning from the Gulf. On VA examination in May 2013, the Veteran reported that he first started having headaches around 1993 and they have progressively worsened. Diagnoses were listed as migraine headaches including migraine variants and tension headaches. The examiner opined that both of the Veteran's headache types were not related to his environmental exposures as they have worsened over the recent past and not immediately after his environmental exposures. He had no unknown diagnosis. In a February 2014 addendum, the VA examiner stated that headaches were a diagnosed chronic illness with a partially understood etiology including multiple factors such as stress, tenson, diet, etc. As set forth, the Veteran's headache complaints have been related to known diagnoses - migraine headaches and tension headaches. The claimed condition is not shown to be undiagnosed or part of an unexplained chronic multisymptom illness. Thus, service connection is not warranted under 38 C.F.R. § 3.317. On review, there is no evidence of treatment for a headache disorder during the Veteran's period of active service. While lay statements suggest the headaches first manifested during his Persian Gulf service, this is not supported by the overall evidence of record. That is, the Veteran specifically denied having headaches in April 1991, and in November 1991, approximately 5 months following discharge, he indicated that he did not know whether he had headaches. The first documentation of the claimed headaches is not until the 1994 Gulf War Registry examination. The probative medical evidence does not relate the Veteran's currently diagnosed headaches to active service or events therein. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. ORDER Service connection for restless leg syndrome is denied. Service connection for fibromyalgia, to include muscle and joint pain, and muscle spasms and cramping of the shoulders, knees, ankles, neck and back, is denied. Service connection for a respiratory condition, to include allergic rhinitis, asthma, sinus infections and coughing, is denied. Service connection for chronic fatigue syndrome, claimed as fatigue, is denied. Service connection for sleep apnea is denied. Service connection for headaches is denied. REMAND Pes planus Service records show that the Veteran was diagnosed with 1st degree pes planus on examination for enlistment in the National Guard in January 1988. The record does not contain an examination prior to the Veteran's period of active duty in December 1990. On release from active duty in April 1991, however, the Veteran's feet were reported as normal on brief examination. In an April 2010 statement, the Veteran reported that as a vehicle driver, he was constantly loading and unloading heavy cargo and felt that this pressure, while wearing combat boots contributed to his current flat feet. In his March 2011 notice of disagreement, the Veteran agreed that he was diagnosed with pes planus upon entry in to service. He argued that he did not have to wear orthotics on entry, that he has not held a job since service that presented the same physical demands on his feet, and he now requires the use of orthotics. He questioned how military duty could not be a contributory factor to his current use of orthotics. The Veteran underwent a VA examination in January 2011. Diagnosis was bilateral pes planus. The examiner noted that the condition was not caused by or related to possible hazardous environmental exposures. On review, the record does not contain an opinion addressing whether preexisting pes planus was aggravated during the Veteran's period of active duty service. Additional examination is warranted. See 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of bilateral pes planus. The VBMS and Virtual VA folders should be available for review. The examiner is requested to provide an opinion as to whether there is clear and unmistakable evidence that any preexisting pes planus was not aggravated (permanently worsened) during the Veteran's period of active service from December 1990 to June 1991. In making this determination, the examiner should consider the Veteran's statements regarding military duties (carrying heavy loads while wearing combat boots). A complete rationale should be provided for any opinion offered. 2. Upon completion of the above development, and any additional development deemed appropriate, the AOJ should readjudicate the issue of entitlement to service connection for bilateral pes planus. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs