Citation Nr: 1805148 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-25 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for chronic fatigue, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (RO). After remanding this claim for further development in August 2015, the Board denied the claim in a January 2016 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in December 2016, the Court set aside the Board's decision and remanded the case for readjudication in compliance with directives in a Joint Motion for Remand. In April 2017, the Board remanded for a videoconference hearing, which was held before the undersigned in October 2017, and a transcript is of record. The case has been returned for appellate consideration. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the December 2016 Joint Motion for Remand, the parties agreed that the January 2016 Board decision should be vacated and remanded because, in part, the Board failed to ensure that VA satisfied its duty to assist since the September 2015 VA examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). Specifically, the examiner did not sufficiently address the etiology of the Veteran's chronic fatigue in light of the evidence indicating an association between the chronic fatigue and the Veteran's service-connected disabilities, notably: bladder cancer; bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus type II; diabetes mellitus type II; erectile dysfunction associated with residuals, prostate cancer status post radical prostatectomy; residuals, prostate cancer status post radical prostatectomy; and scar status post lymph node removal associated with residuals, prostate cancer status post radical prostatectomy. The evidence of record includes the following, which must be addressed during a VA examination. The Veteran's VA medical records reveal that in a May 2009 primary care note it was recorded that a review of general systems showed extreme fatigue related to surgery and treatment. Also in a May 2009 preventative medicine note it was recorded that there was extreme fatigue. It was noted in an October 2009 VA examination report that fatigue was a symptom of the Veteran's diabetic nephropathy. It was opined that weakness or fatigue could result in work problems through increased absenteeism. At the time of this examination, the Veteran reported being full-time employed and had missed 19 weeks of work in the previous 12-month period due to surgery and recovery. Also in an October 2009 report of a VA examination of the genitourinary system, it was noted that fatigue was a general systemic symptom due to genitourinary disease. It was opined that the disease's impact on occupational activities would be weakness or fatigue. A September 2010 primary care note shows that based upon a health questionnaire review of systems, the Veteran was negative for extreme fatigue. The Veteran reported no problems sleeping but being tired. It was noted that the Veteran had a forty-pound weight loss and was trying for more; his diabetes was controlled through diet and exercise. It was noted that the Veteran was working and that he planned on retiring. An October 2013 nephrology consultation report shows that the Veteran had rather significant daytime fatigue, sleep patterns were quite fragmented-to the point of the Veteran consuming three to four drinks at night in an attempt to obtain sleep. In a January 2014 rehabilitation medicine consultation note it was recorded that the Veteran reported episodic and migrating weakness, and it was noted that he might have been experiencing fatigue-associated weakness. The Veteran reported weakness around 2009 that had progressively worsened. The January 2016 Agent Orange Registry Examination report shows general fatigue under review of systems. A March 2016 assessment/plan by Dr. G.G. shows fatigue syndrome on the Veteran's computerized problem list and there was a plan to check the Veteran's testosterone levels the next visit. In addition to the medical notations about the Veteran's chronic fatigue, he has made numerous statements on the matter. In a February 2012 statement in support of claim, the Veteran stated that he had had chronic fatigue since his December 2008 surgery for service-connected bladder and prostate cancer and that he could not work a full day. He stated: "I must go home early for a nap due to fatigue." In the Veteran's September 2012 notice of disagreement, he referred to his repetitive complaints about fatigue while getting treatment during the previous three-and-a-half years. During the October 2017 hearing, the Veteran testified that he first noticed experiencing chronic fatigue after his December 2008 surgery for service-connected bladder and prostate cancer. He stated that every time he saw the doctor, he complained about it. He stated that a VA doctor had told him that he had chronic fatigue syndrome. The Veteran testified that he gained forty pounds after his surgery, and in 2013 he had a sleep study done and was diagnosed as having sleep apnea (not service-connected), which was treated with CPAP. He stated that he experiences the same fatigue, falling asleep all the time. The Veteran testified that he went to bed at 10:00 at night, slept until 9:00 or 9:30 in the morning and would take one or two naps during the day, sleeping 14 to 16 hours a day. He stated that sometimes he felt rested while other times he was just really tired and just wanted to go back to sleep. He stated that he just sits in the recliner and sleeps all day. The Veteran testified that prior to being diagnosed with prostate and bladder cancer he would work all day, never having a problem with fatigue. He stated that he used to be a stock broker and financial adviser but he had to stop working because he kept falling asleep at his desk. Medical records from Dr. M.K. show that in June 2008 the Veteran reported being healthy as an ox. Through November 2008, the Veteran refused to take medication for hypertension and diabetes, rather he exercised and lost 30 pounds. The Board notes the following evidence that should also be addressed during a VA examination. In a December 2011 statement in support of claim, the Veteran stated: "Pain is such that I cannot sleep and it is inhibiting my ability to work & earn a living. The pain is increasing in severity." In a September 2012 statement, he stated: "My arms hurt and I can't sleep as the pain wakes me up when I roll over." In a second September 2012 statement in support of claim, the Veteran complained of chronic pain due to diabetes, stating: "I have to put a heating pad on my feet at night and gloves on my hands so I can sleep." In November 2015 correspondence, the Veteran wrote that he had researched chronic fatigue syndrome on Mayo Clinic's website, and stated: "This disease can possibly be caused by diabetes type II which I have due to exposure to agent orange during my deployment in Vietnam. It is a very debilitating disease that causes numerous rest periods, naps, during the day so I have not been able to work since 2009." The Veteran is competent to report his symptoms and any diagnoses that he has been told by a physician. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Since it is not clear from the current evidence of record whether the Veteran's chronic fatigue is a separate condition that is secondary to his service-connected disabilities or whether it is a symptom of his service-connected disabilities, a new VA examination is required for clarification. Furthermore, any outstanding medical records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination of all relevant medical records, including for care provided at VA Medical Centers. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any current chronic fatigue. The entire claims file and this Remand in its entirety must be made available to and be reviewed by the examiner, and it should be confirmed that such records were available and reviewed. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must obtain a full history from the Veteran. The examiner must provide an opinion, in light of the examination findings and the evidence, as to the following: a. Specifically identify whether the Veteran's chronic fatigue is a separate disability or whether it is a symptom of his service-connected disability(ies). b. Address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic fatigue had its onset during, or is otherwise related to, the Veteran's active service. c. Address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic fatigue was caused by or aggravated by the Veteran's service-connected disability(ies). In providing this opinion, the examiner must address the Veteran's statement based upon his Internet research of the Mayo Clinic's website that diabetes mellitus type II can cause chronic fatigue syndrome. The examiner must address the particular evidence of record that the Board has noted in the body of this Remand, some of which is contradictory. In providing this opinion, the examiner must acknowledge and discuss the lay evidence. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles that led to the conclusions reached. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If it is not possible to provide the requested opinions without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).