Citation Nr: 1601767 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 10-25 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure and as secondary to service-connected prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, dated November 2009 and August 2012. The appeal for entitlement to service connection for bladder cancer was properly perfected and certified to the Board in March 2012. There is no indication that the Veteran has withdrawn this claim, and it was not addressed in the August 2015 Board decision. Thus, the bladder cancer issue is before the Board and may be considered at this time. The appeal for entitlement to service connection for CFS was previously before the Board in August 2015 and was remanded for additional development. It has now returned to the Board for further appellate action. The Veteran has submitted a November 2015 waiver requesting the Board consider new evidence and proceed without remanding the case to the AOJ. Therefore the Board may decide this case without remanding for initial AOJ review of evidence submitted after the November 2015 supplemental statement of the case (SSOC). At the Veteran's request, the Board scheduled the Veteran for a June 2013 hearing at the Boise RO; unfortunately, the Veteran postponed the hearing due to illness. The Veteran filed an additional request for videoconference hearing in association with his May 2014 substantive appeal that included the chronic fatigue issue. This hearing, scheduled for November 2014, was postponed by the Veteran. The record shows that the Veteran subsequently postponed a February 2015 videoconference hearing and cancelled a June 2015 videoconference hearing. Because the Veteran cancelled his hearing, the Board finds that the request for hearing has been withdrawn. The issue of entitlement to service connection for bladder cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has not been diagnosed with CFS and has not had CFS at any point during the pendency of the claim. CONCLUSION OF LAW The criteria for establishing service connection for CFS, as secondary to service-connected diabetes mellitus and prostatectomy residuals, are not met. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for CFS because it is a condition secondary to his service-connected disabilities. After reviewing the evidence of record, the Board finds that the Veteran does not have CFS; instead, his fatigue is a result of his severe sleep apnea, which is not service connected. The Veteran's first documented complaint of fatigue dates from May 2009, when a VA Medical Center (VAMC) treatment record notes that the Veteran has extreme fatigue related to his December 2008 surgery and treatment. In an April 2010 VAMC treatment record, the Veteran mentions experiencing vertigo and tiredness but denies extreme fatigue. The Veteran reports that his dizziness has basically cleared in an October 2010 VAMC treatment record, and he attributes some of his symptoms to allergies. In October 2013, a VAMC physician notes that the Veteran has significant daytime fatigue and fragmented sleep patterns; the VAMC physician recommends a sleep study. In January 2014, a VAMC physician opines that the Veteran may be experiencing fatigue-associated weakness after the Veteran mentions experiencing weakness that began in 2009, has progressively worsened, and has variable symptoms that sometimes prevent his arms and legs from bearing any weight. A sleep study conducted later in January 2014 diagnoses the Veteran with severe sleep apnea. The September 2015 VA examination specifically addresses the source of the Veteran's fatigue. After physically examining the Veteran and reviewing the claims file, the examiner concludes that the Veteran does not have CFS because the Veteran does not experience many of the symptoms required for a diagnosis of CFS. In addition, the VA examiner finds that the Veteran's fatigue is due to multiple other causes, particularly noting that the Veteran's obstructive sleep apnea is more likely than not a major cause of the Veteran's fatigue and sleep disturbance. The Veteran also provides statements regarding the severity and causation of his fatigue. In a statement dated February 2012, the Veteran maintains that his fatigue is such that he cannot work a full day because he must leave early to nap. He mentions in December 2011 and September 2012 statements that his chronic neuropathy pain is increasing in severity and prevents him from sleeping. The Veteran also mentions online research he has conducted that finds a possible causal link between diabetes and CFS; the Veteran has not submitted this research. Moreover, the Veteran has not presented evidence that he is qualified to provide an opinion on this issue. The Board notes that lay persons are competent to report observable symptomatology of an injury or illness, Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), and may provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue in this case - the cause of his fatigue and potential diagnosis of a complex disorder - falls outside the realm of a lay person's common knowledge, however. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In sum, while the Veteran has made recurring complaints of fatigue since May 2009, the competent medical evidence establishes that the Veteran does not have CFS. The medical evidence of record lacks any diagnosis of CFS and the September 2015 VA examination finds that the Veteran does not have CFS. Instead, the September 2015 VA examination determines that the Veteran's fatigue is more likely than not a result of his obstructive sleep apnea. Without proof of the existence of the disability being claimed, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. Duties to Notify and Assist VA has certain duties to notify and assist a claimant in the substantiation of a claim. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a March 2012 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the March 2012 letter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, he was provided a proper VA examination in September 2015 that included a medical opinion addressing the extent of the Veteran's fatigue and determining whether he has CFS. The Board also finds that VA has complied with the Board's August 2015 remand orders. In response to the remand, VA obtained the Veteran's complete, current VAMC treatment records; VA also provided a VA examination in September 2015 that reviewed his claims file, determined whether the Veteran has CFS that is connected to service, and provided a rationale for its opinion. The case was then readjudicated in a November 2015 SSOC. The Board therefore finds that VA has complied with the August 2015 remand orders. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for CFS as secondary to service-connected diabetes mellitus and prostatectomy residuals is denied. REMAND The Board regrets further delay in this case but finds that a remand is necessary to provide the Veteran with a VA medical examination. The Veteran alleges that his bladder cancer is a result of his exposure to herbicides while in service in Vietnam. Alternatively, the Veteran argues that his bladder cancer is secondary to his service-connected prostate cancer. The Board finds that a VA examination is necessary to obtain an opinion concerning a possible relationship between the Veteran's bladder cancer, his military service, and/or his service-connected prostate cancer. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify and submit any records relating to his claimed bladder cancer that have not yet been submitted to VA. Provide the Veteran with medical release forms and request that he complete them, thereby authorizing VA to obtain private medical records not yet of record that are related to his bladder cancer. If valid medical release forms are received, obtain copies of all available treatment records from the identified private physicians and facilities. Copies of the records must be associated with the virtual claims file. All efforts to obtain the records must be documented in the claims file. 2. After the development sought is completed, the RO should forward the record to an oncologist for review and advisory medical opinion. Based on review of the record, the examiner should provide opinions that respond to the following: (a) The examiner should offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that bladder cancer is proximately due to or aggravated (chronically worsened) by his service-connected prostate cancer? (b) If the Veteran's bladder cancer is not proximately due to or aggravated by his service-connected prostate cancer, the examiner should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the disorder is directly related to his service, to include as due to in-service herbicide exposure. If the Veteran's bladder cancer is not related to service, the examiner should identify the etiological factor considered more likely. A full rationale (i.e. basis) for any expressed medical opinions must be provided. 3. Readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue an SSOC before returning the case to the Board, if otherwise in order. 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 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs