Citation Nr: 18139880 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-26 192 DATE: October 1, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS), including as due to an undiagnosed illness, is denied. Entitlement to service connection for irritable bowel syndrome (IBS), including as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The Veteran’s active service included 90 days of temporary duty in Kuwait. 2. The preponderance of the evidence of record shows that the Veteran’s fatigue is due to diagnosed sleep apnea, and not another etiology. 3. The preponderance of the evidence of record shows that IBS, or claimed gastrointestinal (GI) symptoms did not have onset in service, nor have they manifested to at least a compensable degree. 4. The weight of the evidence of record is against a finding that the Veteran has manifested with an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as CFS), fibromyalgia, or functional GI disorders. CONCLUSIONS OF LAW 1. The criteria to establish service connection for CFS, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 2. The criteria for Entitlement to service connection for IBS, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2000 to December 2005. Service records reflect that he performed 90 days of temporary duty in Kuwait. See 09/30/2013 Military Personnel Record, 2nd Entry, P. 16. Service Connection Legal Requirements Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces 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, 2021. 38 C.F.R. § 3.317(a)(1)(i); see 81 Fed. Reg. 71,382, 71,383 (Oct. 17, 2016). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117(f); 38 C.F.R. § 3.317(d). The Southwest Asia theater of operations is defined as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). A “qualifying chronic disability” means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as CFS), fibromyalgia, or functional GI disorders). 38 C.F.R. § 3.317(a)(2)(i). Chronic in this context is defined as existing for six months or more and/or exhibiting intermittent episodes of improvement and worsening over a six-month period. See 38 C.F.R. § 3.317(a)(4). In particular, the term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Therefore, even if a multisymptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI 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, GI signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for CFS At the Board hearing, the Veteran testified that he started to feel fatigue around 2002 or 2003, about the time of his exposure to the environmental hazards of the Persian Gulf (PG). He testified that it was difficult for him to get going, and he described having a little cloudiness of the head. Additionally, since his service in the PG, he had experienced episodes of dizziness and headaches. He did not seek treatment for his symptoms while in service, and he has taken medication since 2012, but the medication is for his service-connected disabilities. He conceded that one examiner told him that his fatigue could be due to sleep apnea, which was diagnosed in 2006. 04/24/2018 Hearing Testimony, P. 7. Service medical records (STRs) dated in December 2005 note the Veteran’s report of being more tired at work, and that he had experienced problems sleeping through the night. He was referred for a sleep study. The Report of Medical Examination for Separation reflects a three-month history of fatigue. See 09/30/2013 STR-Medical, 3rd Entry, P. 7, 9, 19. The September 2013 VA examination report reflects that the examiner reviewed the claims file as part of the examination. The Veteran reported that he had sleep apnea and had been on a CPAP device since 2012. He reported that he had experienced apnea-like symptoms for many years. He reported in-service onset of fatigue and sleep problems in 2004 or 2005 for which he sought treatment but was separated before specific tests. He underwent a sleep study at a VA facility in 2006. He reported further that he has had progressing sleepiness and tiredness over the years. Since he started use of a CPAP device, he felt okay in the morning, but tired in the afternoon, and he naps. He denied acute onset of symptoms. He denied any work impact from his symptoms. See 09/08/2013 CAPRI. The examiner determined that the Veteran did not in fact have CFS nor did he manifest any of the signs and symptoms of CFS. Id., P. 2. Based on the review of the claims file and the examination of the Veteran, the examiner opined that it was not as least as likely as not that the Veteran’s fatigue is consistent with a disability pattern or diagnosed disease related to exposure to environmental hazards in the PG. Neither is it due to an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness that is without conclusive pathophysiology or etiology. The Veteran’s fatigue is due to sleep apnea, which is a disease with a clear and specific etiology and diagnosis. The examiner’s stated rationale is that fatigue is part of the clinical features of sleep apnea, and that the Veteran’s symptoms had improved since he started use of a CPAP device. Id., P. 4. The July 2015 examination report reflects that the Veteran reported a history essentially the same as what he reported at the 2013 examination. He reported continued use of the CPAP device, and that he slept 6 to 8 hours a night. He denied taking any medication for fatigue. As was the case at the 2013 examination, the examiner determined that the Veteran did not have or exhibit any of the signs and symptoms of CFS and again opined that the Veteran’s fatigue is due to sleep apnea, a disease with a clear diagnosis and etiology. See 07/10/2015 C&P Examination, 1st Entry. For the above reasons the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 2. Entitlement to service connection for IBS As noted above, the Veteran asserts that he has symptoms, including IBS, which are the result of his exposure to environmental hazards in the PG, including consumption of native food, and that show that he has an undiagnostic illness. See 11/28/2007 VA 21-526; 04/13/2012 VA 21-526b. The September 2013 Gulf War examination report reflects that the claims file was reviewed, and that the Veteran’s physical examination was normal. It notes, however, that the Veteran reported that he started having alternating constipation and diarrhea while in active service, that he did not take any medication for his symptoms, his weight had been stable, and that he was awaiting a colonoscopy. He reported further that 1 to 2 times a week he would have 4 to 6 loose stools a day preceded by gas and cramping. See 09/17/2013 CAPRI, P. 8, 14. The examiner noted that the Veteran was diagnosed with IBS in active service. The examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks; did not have weight loss attributable to an intestinal condition or malnutrition, etc. Id., P. 18. The report does not indicate that a CBC revealed any abnormalities, and the examiner noted that the Veteran’s symptoms did not impact his ability to work. A July 2015 examination report reflects that the examiner reviewed the claims file. The Veteran reported that he had experienced pains in the hands and elbows for an unknown time, and that it was intermittent, and that activity like typing triggered it. He also reported that NSAIDs provided relief. He also reported new onset of low back pain. The Veteran claimed to have exhibited heart-related symptoms, but the examiner noted that clinical notes revealed the absence of abdominal pain, nausea, vomiting, diarrhea, or constipation. 07/10/2015 C&P Examination, 2nd Entry. The examiner noted that the Veteran did not have any signs or symptoms of fibromyalgia. Based on the review of the claims file, the examination results, to include x-rays, the examiner opined that the Veteran had sciatica, tendonitis of the elbows, and a hand strain due to repetitive use. There was no arthritis. The examiner opined further that the Veteran’s disability pattern was as likely as not due to a disease with a clear and specific diagnosis and etiology. Further, the disability pattern diagnosed as joint pain was not at least as likely as not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. Id., P. 9. The examiner noted that fibromyalgia was not diagnosed. The RO arranged another examination and review on the issue of whether the Veteran’s claimed symptoms were due to an undiagnosed illness. See 07/10/2015 C&P Examination, 4th Entry. The examiner noted that his review of the Veteran’s records revealed no record or documentation of a GI diagnosis related to the Gulf War. The examiner noted that the Veteran’s symptoms were subjective, and that he reported different symptoms had the prior examination. At the 2015 examination, the Veteran reported abdominal cramping not associated with bowel movements that went back 2 years. Id., P. 6. The July 2015 intestinal portion of the Gulf War protocol (07/14/2015 C&P Examination) reflects that the Veteran had never been diagnosed with an intestinal condition. The report notes that the Veteran reported that he felt like he needed to have a BM but with no gas-like cramps. He reported further that he had experienced the symptoms over the prior 2 years, that they occurred 1 to 2 times a week, they lasted 10 to 15 minutes, and that they were not associated with bowel movements. The Veteran reported that he had normal bowel movements, and he denied constipation, diarrhea, bleeding, bloating, or mucus in his stool. He denied that his symptoms were associated with food. The examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress, weight loss, or malnutrition. The Veteran’s hearing testimony and some of his written submissions suggest that he believes that the mere fact he served in Southwest Asia is proof of his claim. See, i.e., 10/23/2013 NOD; 02/26/2016 VA 21-4138; 07/07/2017 VA 21-4138; 07/07/2014 VA Form 9. The fact of in-theatre service alone, however, is not sufficient to prove a claim. On his Substantive Appeal, the Veteran asserted that when he denied having experienced any GI symptoms at the 2013 examination, he meant the day of the examination, not in general. See 07/07/2014 VA Form 9. He asserted a 10-year history of symptoms. The Board finds that, while they are competent (38 C.F.R. § 3.159(a)(2)), the weight of the evidence is against the Veteran’s lay assertions. The Board, however, affirms the RO’s determination that the preponderance of the evidence is against the claim on a presumptive basis, as the examination reports set forth above note that the Veteran’s reported subjective symptoms, assuming credibility, do not show that IBS manifested at least to a compensable degree. A compensable rating of 10 percent for IBS requires moderate symptomatology with frequent episodes of bowel disturbance and abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The weight of the competent evidence of record fails to show that the Veteran’s symptoms meet these criteria. Hence, his claim may not be allowed on a presumptive basis. 38 C.F.R. § 3.317. The examiners who reviewed the claims file, examined the Veteran, considered the Veteran’s lay reported history, and provided a clear rationale for the rendered opinions. Hence, the Board finds them highly probative and affords them significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the opinions are fully supported by the evidence of record. On his Persian Gulf Post-Deployment Assessment, the Veteran indicated that his health was very good; he denied any concerns about possible exposures; any current symptoms; or any concerns about his health. Based on his responses, there were no referrals for further action. See 08/21/2008 Military Personnel Record. On his December 2005 Report of Medical History for his examination at separation, the Veteran denied any history of swollen or painful joints, shortness of breath, stomach, liver or intestinal problems, or recent gain or loss of weight. The Veteran noted on the form that the only conditions he complained of but did not seek treatment for, were apnea and fallen arches. The examination report reflects that the Veteran’s abdomen and viscera were assessed as normal. See 04/30/2013 STR-Medical, 3rd Entry, P. 7, 9, 11. In May 2005, the Veteran was deemed medically qualified for flight-related duties, which kept him eligible for his air traffic controller duties; and in December 2005, his Report of Systems were negative for GI symptoms. 04/30/2013 STR-Medical, 2nd Entry, P. 37; 3rd Entry, P, 19. A March 2006 VA general examination report reflects that the Veteran denied abdominal pain or indigestion, and reported that his bowel movements and bladder function were normal. He also denied any problems with his joints, other than occasional low back discomfort. Physical examination revealed no pain on range of motion or swelling, and the neurological examination was normal. See 03/21/2006 VA Examination. VA outpatient records dated in 2013 note the Veteran’s denial of GI symptoms; on another occasion, he reported occasional diarrhea about once a month over the past few years with up to 3 loose or watery stools. Further, the symptoms were associated with consumption of dairy products and red meat. He denied nausea, vomiting, or abdominal pain or discomfort. In May 2014, he again denied abdominal pain, nausea, vomiting, diarrhea, or constipation. The examiner noted that the abdominal examination was normal. See 06/25/2014 CAPRI, 2nd Entry, P. 1, 39, 55. CONTINUED ON THE NEXT PAGE   Therefore, based on the assessment of all of the evidence set forth earlier, the Board finds that the preponderance of the evidence is also against the claim for service connection here. Again, there is no showing of gastrointestinal symptoms to a compensable degree, nor is there continuity of symptomatology of current symptoms dating back to service. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder