Citation Nr: 1310252 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 02-06 866A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a fatigue disability, to include as secondary to service-connected disability. 2. Entitlement to service connection for chronic pain in multiple joints. 3. Entitlement to an initial disability rating for degenerative joint disease of the lumbar spine in excess of 20 percent, from March 1, 2001, and in excess of 40 percent, from October 10, 2002. 4. Entitlement to an initial disability rating in excess of 10 percent for arthritis of the right knee. ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978, from March 1980 to August 1992, and from April 1996 to December 1999. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Phoenix, Arizona, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2001 rating decision, the RO granted service connection for lumbar intervertebral disc syndrome, and assigned it a disability rating of 20 percent. In a May 2002 rating decision, the RO granted service connection for arthritis of the right knee, and assigned it a disability rating of 10 percent. In a May 2004 rating decision, the RO denied service connection for chronic fatigue and chronic pain in multiple joints. When the issues on appeal were previously before the Board in December 2008, they were remanded for additional development. A June 2010 rating decision recharacterized the Veteran's low back disability as degenerative joint disease of the lumbar spine, and assigned it a 40 percent evaluation, effective October 10, 2002. The issues on appeal are now before the Board for final appellate consideration. In December 2008, the Board also remanded the issues of entitlement to service connection for a left knee disability, chest pain and a psychiatric disability, and entitlement to a TDIU. The June 2010 rating decision granted each of these claims and they are no longer on appeal. FINDINGS OF FACT 1. In September 2012 correspondence, the Veteran withdrew his appeal for service connection for chronic pain in multiple joints, and his appeals for increased initial disability ratings for degenerative joint disease of the lumbar spine and arthritis of the right knee. 2. The competent clinical, and competent and credible lay, evidence of record demonstrates that it is at least as likely as not that the Veteran's fatigue disability is due to, the result of, or chronically aggravated by, service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the appeal for service connection for chronic pain in multiple joints, and the appeals for increased initial disability ratings for degenerative joint disease of the lumbar spine and arthritis of the right knee. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b) (2012). 2. A fatigue disability is proximately due to, the result of, or chronically aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In September 2012, the Veteran submitted a written statement that he wished to withdraw his appeal for service connection for chronic pain of multiple joints, and his appeals for increased initial disability ratings for degenerative joint disease of the lumbar spine and arthritis of the right knee. The Board finds that the Veteran's statement satisfies the requirements for withdrawing the appeals. Thus, with respect to those claims, there are no remaining allegations of error of fact or law for appellate consideration, and those appeals are withdrawn. Accordingly, the Board does not have jurisdiction to review those appeals, and they are dismissed. Service Connection As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the claim for service connection for a fatigue disability. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. During the course of this appeal, VA amended 38 C.F.R. § 3.310 (effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. The Board is granting the benefit under the prior version. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran is currently service-connected for, among other things, degenerative joint disease of the lumbar spine, right knee arthritis, left knee strain, right lower extremity radiculopathy, left lower extremity radiculopathy, and a deviated nasal septum. The Veteran contends that he has a chronic fatigue disability that is the result of service-connected disability. The Board's December 2008 remand recognized that the Veteran did have a chronic fatigue disability. The Board requested a VA examination to determine whether it was at least as likely as not that the disorder was causally related to service or was proximately due to or the result of any of the Veteran's service-connected disabilities. A VA examination was accordingly conducted in October 2012. The examination report provides that the examiner reviewed the Veteran's claims file and sets forth the relevant history. The examiner concluded that the Veteran did not currently meet the criteria for a diagnosis of chronic fatigue syndrome. His complaints of fatigue were caused by multiple factors, as discussed later in the report. His complaint of fatigue did not represent a pattern of disability, nor did it represent an undiagnosed illness related to environmental exposures. The examiner also stated that there was no evidence in the service treatment records that the Veteran was evaluated or treated for complaints of fatigue inservice. Therefore, it was less likely than not that fatigue was directly and causally related to service. The examiner stated that the Veteran's complaint of fatigue was at least as likely as not proximately due to the Veteran's multiple conditions. Specifically, she stated that it was at least as likely as not that the Veteran's complaint of fatigue was proximately due to his [non-service-connected] hypothyroidism and obstructive sleep apnea. In addition, the examiner stated that it was at least as likely as not that the Veteran's narcotic pain medication, which he took for service-connected back and knee conditions, was a proximate cause of his complaint of fatigue. She explained that for several years the Veteran had been using narcotic pain medication to treat his service-connected degenerative joint disease of the lumbar spine, arthritis of the [right] knee, left knee strain, right lower extremity radiculopathy and left lower extremity radiculopathy. The examiner also stated that it was at least as likely as not that the Veteran's complaint of fatigue was proximately due to his service-connected deviated septum. She explained that the Veteran also had obstructive sleep apnea, which might be due to the deviated septum. Since 2004, he had been noted to have obstruction of the right naris. Combined with sleep study findings that sleep apnea was positional, it was at least as likely as not that the deviated septum contributed to sleep apnea, and thus proximately contributed to the report of fatigue. The examiner summarized that the Veteran's fatigue was attributed to multiple factors. She stated that it was not possible, without resorting to mere speculation, to be more specific as to the relative contribution of each factor. There was no evidentiary or conceptual basis for making such a determination. The Board finds that the examiner's medical opinion supports the Veteran's claim for service connection. Although the examiner concluded that the Veteran did not have the specific diagnosis of chronic fatigue syndrome, she clearly concluded that he did have a fatigue disability. In this regard, the Board finds it significant that in making her final conclusion, the examiner referred not to the Veteran's complaints of fatigue but to actual fatigue. Her choice of words demonstrates that she considered the Veteran to have an actual fatigue disability. Moreover, the examiner's opinion shows that it is at least as likely as not that this fatigue was the proximate result of narcotic medication used to treat the Veteran's service-connected orthopedic disabilities, and of his service-connected deviated nasal septum. The VA examiner explained her opinion with detailed references to the Veteran's post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). In addition, the VA examiner's inability to be more specific as to the relative contribution of each likely factor to the Veteran's fatigue, without resorting to speculation, also supports the Veteran's claim. In essence, the examiner's inability means that it was at least as likely that the Veteran's fatigue was proximately caused by his service-connected orthopedic disabilities and service-connected obstructive sleep apnea as by the cited non-service-connected disabilities. The Board finds it significant that there is no competent medical evidence to the contrary of the October 2012 VA opinion that it was at least as likely as not that the Veteran's fatigue disability was caused by his service-connected orthopedic disabilities and service-connected obstructive sleep apnea. The Board also notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court of Appeals for Veterans Claims (Court) stated that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. The Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. In view of the foregoing, the Board finds that it is at least as likely as not that the Veteran's fatigue disability is etiologically related to service-connected disability. Resolving any reasonable doubt in favor of the Veteran, the Board concludes that service connection is warranted for a fatigue disability. ORDER The appeal for service connection for chronic pain of multiple joints, and the appeals for increased initial disability ratings for degenerative joint disease of the lumbar spine and arthritis of the right knee, are dismissed. Service connection for a fatigue disability is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs