Citation Nr: 18141773 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 17-17 594 DATE: October 11, 2018 ORDER Service connection for chronic fatigue syndrome (CFS) is denied. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. There is no probative medical evidence that indicates the Veteran has a current diagnosis of chronic fatigue syndrome (CFS). 2. There is no probative medical evidence that indicates the Veteran has a current diagnosis of sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome (CFS) have not been met. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2009 to February 2010, to include in Southwest Asia. In addition to the matters noted above, the Veteran filed a notice of disagreement (NOD) to the August 2018 rating decision that proposed to reduce the disability rating for the Veteran’s service-connected migraine disability. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on this issue. Although the matter is within the Board’s jurisdiction, it has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran’s favor, the RO will certify the matter to the Board, which will undertake appellate review of the RO’s action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, pursuant to 38 U.S.C. § 1117, “a Persian Gulf Veteran with a qualifying chronic disability,” that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. 38 U.S.C. § 1117 (a) (1); 38 C.F.R. § 3.317 (a) (1). The Veteran served in the Southwest Asia theater of operations during his active service. There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) “[a]n undiagnosed illness,” (2) “[a] medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms,” or (3) “[a]ny diagnosed illness that the Secretary determines in regulations ... warrants a presumption of service connection.” 38 U.S.C. § 1117 (a) (2) (A), (B), (C); 38 C.F.R. § 3.317 (a ) (2) (i) (B). VA has defined a medically unexplained chronic multi-symptom illness as “a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317 (a) (2) (ii). Along with the three examples of a medically unexplained chronic multi-symptom illness provided by § 1117 (a) (2) (B), the law provides a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multi-symptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuro-psychological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The provisions of 38 C.F.R. § 3.317 (a) (ii) provide that, in order to be considered a qualifying chronic disability, a disability “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” The definition of “medically unexplained chronic multi-symptom illness” includes a “diagnosed illness without conclusive pathophysiology or etiology.” In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for chronic fatigue syndrome (CFS) The Veteran contends he demonstrates chronic fatigue syndrome or, alternatively, a medically unexplained chronic multi-system illness that manifests with chronic fatigue. Service treatment records (STRs) do not indicate any complaints, diagnoses or treatments for fatigue during active service. On the January 2010 post-deployment questionnaire, the Veteran denied feeling tired after sleeping or generally feeling weak. May 2010 VA treatment records indicate the Veteran denied fatigue and loss of energy during a traumatic brain injury (TBI) evaluation a few months after returning from active duty in Southwest Asia. Reserve STRs indicate the Veteran indicated feeling tired or having little energy in August 2014 and again in May 2015. However, recent VA treatment records are silent for complaints, diagnoses or treatments for chronic fatigue. At the November 2015 VA medical examination, the Veteran reported he had trouble sleeping and woke up tired in the morning. The examiner noted that although the Veteran’s STRs were not available for review at the time of the examination, the examiner reviewed the Veteran’s VA treatment records. The Veteran was not prescribed medication for fatigue, and did not demonstrate signs or symptoms attributable to CFS. The examiner indicated the Veteran did not meet the criteria for chronic fatigue syndrome. The preponderance of the evidence is against finding service connection for chronic fatigue syndrome. There is no probative medical evidence that indicates the Veteran has a current diagnosis of CFS. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”) With regards to the Veteran’s contention that he demonstrates a medically unexplained chronic multi-symptom illness that manifests with chronic fatigue, the record does not establish that the Veteran complains of and receives treatment for a cluster of symptoms, to include chronic fatigue, that are medically unexplained. VA treatment records do not indicate the Veteran has complained of chronic fatigue. At the November 2015 Gulf War medical examination, the examiner indicated the Veteran did not demonstrate a diagnosed illness with no established etiology, and did not demonstrate signs or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multi-symptom illness. Since the Veteran does not have a current diagnosis of chronic fatigue syndrome, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for sleep apnea The Veteran contends he demonstrates sleep apnea, or, alternatively, a medically unexplained chronic multi-system illness that manifests with sleep apnea. Sleep apnea is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012). STRs do not indicate any complaints, diagnoses, or treatments for sleep-related problems during active service. On his January 2010 post-deployment questionnaire, the Veteran denied problems sleeping or feeling tired after sleeping. VA treatment records indicate the Veteran was diagnosed with adjustment disorder with anxiety in April 2010, with symptoms including sleep disturbances and nightmares. Reserve STRs indicate the Veteran reported trouble falling or staying asleep, or sleeping too much, in August 2014 and May 2015. In November 2015, the Veteran underwent a sleep study. The examiner diagnosed the Veteran with normal sleep latency, delayed REM latency, and no evidence of sleep-disordered breathing. At the November 2015 VA medical examination, the Veteran reported insomnia and occasional daytime sleepiness, and that his sleep problems were secondary to his exposure to environmental hazards during his active service in Southwest Asia. The examiner noted that although the Veteran’s STRs were not available for review, he reviewed the Veteran’s VA treatment records. The Veteran did not treat his sleep symptoms with medication, and did not use a breathing assistance device. The examiner noted that although the Veteran’s reported symptoms of insomnia and daytime sleepiness could be attributed to sleep apnea, the recent sleep study did not provide a diagnosis of sleep apnea. The examiner did not provide any further opinion on the etiology of the Veteran’s sleep problems because the Veteran did not demonstrate a diagnosis of sleep apnea. June 2017 VA treatment records indicate that during a group psychotherapy counseling session, the Veteran participated in a sleep training module that addressed good sleep hygiene, relaxation techniques, and the development of good sleep habits. The preponderance of the evidence is against the claim for service connection. There is no probative medical evidence that indicates the Veteran has a current diagnosis of sleep apnea. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, supra. With regards to the Veteran’s contention that he demonstrates a medically unexplained chronic multi-symptom illness that manifests with sleep apnea, the record does not establish that the Veteran complains of and receives treatment for a cluster of symptoms, to include sleep apnea, that are medically unexplained. The Veteran receives counseling for his adjustment disorder with anxiety, which manifests with symptoms including sleep disturbances and nightmares, and which has been treated with counseling on how to improve his sleep habits. As noted above, the November 2015 Gulf War medical examiner indicated the Veteran did not demonstrate signs or symptoms of a diagnosed illness with no established etiology, and did not demonstrate signs or symptoms that may represent an undiagnosed illness or a diagnosed medically unexplained chronic multi-symptom illness. Since the Veteran does not have a current diagnosis of sleep apnea, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel