Citation Nr: 1645825 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 12-22 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for chronic fatigue/ chronic fatigue syndrome, to include as a manifestation of an undiagnoseds illness. 2. Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to February 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a videoconference hearing held at the RO before the undersigned. A transcript of the hearing is associated with the record. In October 2015, the Board remanded the claim for further development. At the time of the October 2015 Board remand, the issues of entitlement to service connection for muscle aches and irritable bowel syndrome (IBS) were on appeal. In a January 2016 rating decision, the Appeals Management Center (AMC) granted service connection for IBS and myalgias, claimed as muscle aches. As the benefit on appeal as to these issues has been fully granted, the issues are no longer before the Board. The record shows the Veteran has filed a claim for service connection for pes planus. A review of the claim file shows that the RO is actively working on the adjudication of this issue and therefore referral of the issue is not needed at this time. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Chronic fatigue has been attributed to a known etiology. It is not a symptom of an undiagnosed or medically unexplained chronic multisymptom illness, including chronic fatigue syndrome. 2. The Veteran does not have chronic fatigue syndrome. CONCLUSION OF LAW The criteria for service connection for chronic fatigue and CFS, to include as due to an undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA issued a VCAA letter in April 2010, prior to the initial unfavorable adjudication which complied with all of the notice requirements. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The RO associated the Veteran's service and VA treatment records with the claims file. The Board notes that additional private treatment records were associated with the claim file after the most recent Supplemental Statement of the Case of March 2016. However, a review of these records shows that none of the records contain evidence related to the claimed fatigue or CFS. Therefore, a remand would serve no purpose and there is no harm to the Veteran to adjudicate the issue. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159 (c)(4). In this case, the Veteran was provided with several VA examinations and various medical opinions were obtained. The opinions are adequate because collectively they considered and addressed the Veteran's contentions, reviewed the claims file, and provided sufficient supporting rationales for the opinions given. Based on the foregoing, the Board finds these reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied. Legal Criteria and Analysis Generally, to establish service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. 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. 38 C.F.R. § 3.317 (a)(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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that he is entitled to service connection for chronic fatigue, to include as due to an undiagnosed illness. He argues he suffers from chronic fatigue syndrome which is due to service. Here, there is no indication that the appellant was in combat and the provisions of section 1154(b) are not applicable. The Veteran has claimed that he has chronic fatigue and chronic fatigue syndrome, specifically asserting that these are symptoms of an undiagnosed chronic multisymptom illness. Beginning with this theory as it is the Veteran's primary contention, service records reflect that the Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are potentially applicable in this case. In order to determine whether these issues were symptoms of an undiagnosed illness, the Veteran was provided with VA medical examinations. In the August 2015 Board remand, the Board determined that the May 2010 VA examination was inadequate and ordered new examinations to be conducted. As such, the Board will not consider the May 2010 VA examination findings herein. VA outpatient treatment records of April 2015 show an assessment of fatigue and daytime somnolence. It was noted the Veteran has a diagnosis of sleep apnea and is not using his CPAP machine. This is most likely the cause of his fatigue and daytime somnolence. It was noted that using the CPAP machine could help ease the symptoms. It was further noted the Veteran was obese and this could contribute to his fatigue. A January 2016 VA examination found that the Veteran has not been diagnosed with CFS. The examiner noted that the Veteran had reported he had been diagnosed with CFS in 2005 but there are no records to support said diagnosis. The examination noted findings in previous VA outpatient and private treatment records to include those noted above. The examiner noted that the Veteran reported starting experiencing fatigue in service when he would work 12 hours a day five days a week. He reported being tired and sleepy. This continued after service. At the time of the examination, the Veteran reported he has is not taking any medication for CFS or chronic fatigue. He has not been using his CPAP machine for his sleep apnea. An addendum opinion was obtained in January 2016 at which time, the examiner opined that while CFS has not been diagnosed. Fatigue is most likely attributable to OSA treatments or lack thereof as previously noted in VA outpatient treatment records. Therefore, the examiner opined that the claimed undiagnosed illness is less likely due to service. There is no evidence that the 2016 examiner was not competent or credible, and as the opinion is based on the medical evidence of record the Board finds that it is entitled to significant probative weight concerning the etiology of the claimed chronic fatigue. Nieves-Rodriguez, 22 Vet. App. 295. VA and private treatment records are silent for any notations attributing chronic fatigue to an undiagnosed illness. The Board notes that the Veteran has asserted that chronic fatigue is a symptom or manifestation of an undiagnosed or medically unexplained chronic multisymptom illness. However, the medical evidence attributing chronic fatigue to actual pathology is far more reliable and credible than statements from a lay informant. Based the competent and credible evidence of record, the Board finds that the claimed chronic fatigue has been competently and credibly associated with a known etiology and diagnosis, namely the Veteran's OSA, and therefore service connection based on the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. As noted above the 2016 VA examiner noted that the chronic fatigue is a symptom of OSA, specifically the lack of treatment for OSA due to his failure to use the CPAP machine. There is no credible and competent evidence relating the Veteran's chronic fatigue to service, rather it has been found it is a symptom of another disability. Moreover, CFS has not been diagnosed. Without a diagnosis, any claim for service connection for CFS fails. In the absence of proof of CFS, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that he reported he was diagnosed with CFS in 2005. However, there are no treatment records to support this and the January 2016 VA examination specifically found there was no finding of a diagnosis of CFS. To the extent that the Veteran is competent to report that he has been told by a medical professional that he has chronic fatigue syndrome, such lay evidence lacks an adequate factual foundation for arriving at this conclusion. Such lay/medical evidence pales into insignificance when compared with the detailed medical evidence establishing that he does not have CFS. The preponderance of the evidence weighs against a finding that the Veteran's chronic fatigue is a symptom or manifestations of a medical unexplained or undiagnosed chronic multisymptom illness, and instead shows that the issue is a symptom of another disability, namely OSA. The most probative evidence also establishes that he does not have CFS. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The benefit sought on appeal is denied. ORDER Service connection for chronic fatigue and CFS, to include as due to undiagnosed illness is denied. REMAND As to the issue of service connection for sleep apnea the Board notes that a new VA etiology opinion was obtained in April 2016. The most recent Supplemental statement of the case (SSOC) was issued in March 2016 and thus predates this medical opinion. No updated SSOC has been issued since the April 2016 VA medical opinion was issued. A new SSOC should be issued which considers this new opinion and all additional evidence associated with the claim file since the March 2016 SSOC. Accordingly, the case is REMANDED for the following action: Issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC) as to the issue of service connection for sleep apnea which considers all the newly obtained evidence since March 2016 to include the April 2016 VA medical opinion. Afford them the appropriate period of time within which to respond thereto. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. 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 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs