Citation Nr: 18141819 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-23 061 DATE: October 11, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome, to include as due to a Gulf War undiagnosed illness, is denied. Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis with heel spurs is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome. 2. The Veteran’s chronic fatigue is not part of an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptoms illness with a partially explained etiology attributable to environmental exposures arising from his service in Southwest Asia during the Gulf War. 3. Throughout the pendency of the appeal, the Veteran’s bilateral plantar fasciitis has been manifested by moderate symptoms including pain on use of the bilateral feet. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome, to include as due to a Gulf War undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for a disability rating in excess of 10 percent for bilateral plantar fasciitis with heel spurs have not been met at any time throughout the appeal period. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2017). INTRODUCTION The Veteran served on active duty from July 1981 to February 2010. During the pendency of the appeal, in an October 2013 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s disability rating for bilateral plantar fasciitis to 10 percent effective February 11, 2010. As this rating increase does not represent a full grant of the benefits sought by the Veteran, this matter remains on appeal. The Board briefly notes the issue of entitlement to an increased disability rating for osteoarthritis of the left knee is not before the Board. Although the AOJ issued to the Veteran a May 2016 Statement of the Case (SOC) on this matter, VA has not received a substantive appeal regarding this issue. In his May 2016 VA Form 9, the Veteran limited his appeal to the Board to the issues of entitlement to service connection for chronic fatigue syndrome and entitlement to an initial disability rating in excess of 10 percent for his service-connected bilateral plantar fasciitis. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for chronic fatigue syndrome The Veteran seeks service connection for chronic fatigue syndrome, which he contends originated in service and continues to the present. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms. The symptoms must be manifest to a degree of 10 percent or more. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. At the outset, the Board notes the record does not reflect any probative diagnosis or findings of chronic fatigue syndrome. Moreover, a December 2015 VA examiner determined the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. The examiner also stated the Veteran did not have current or past findings, signs, and symptoms attributable to chronic fatigue syndrome. The Board acknowledges the Veteran’s reports of fatigue during service and since. In his June 2009 statement, the Veteran indicated that he had experienced chronic fatigue syndrome since October 2008, when he suffered a severe vertigo attack that was later diagnosed as vestibular neuritis. Service Treatment Records (STRs) reflect several reports of fatigue related to the Veteran’s diagnosis of vestibular neuritis and sleep apnea. The medical evidence of record shows the Veteran was evaluated by an otorhinolaryngologist who stated the Veteran’s fatigue was caused by compensating for his vertigo, as well as by an infectious disease specialist who opined the Veteran’s fatigue did not have an infectious etiology and was most likely related to his sleep apnea and left vestibular neuritis. Further, a December 2009 VA examiner diagnosed the Veteran with chronic fatigue with multiple organic problems contributing. In addition, a June 2010 VA examiner stated the Veteran’s diagnosis of left vestibular neuritis and cardiomyopathy contributed to his fatigue. In this regard, the Board observes service connection has been granted for the Veteran’s sleep apnea, left vestibular neuritis, and cardiomyopathy. The record does not show a diagnosis of chronic fatigue syndrome or a separate and distinct diagnosis to which the Veteran’s fatigue could be attributed. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). Absent competent evidence reflecting the current presence of chronic fatigue syndrome, a basis upon which to establish service connection for chronic fatigue syndrome has not been presented and the claim must be denied. The Board has considered whether service connection is warranted for chronic fatigue on a presumptive basis under 38 C.F.R. § 3.317. However, the medical evidence of record does not reflect that the Veteran’s chronic fatigue resulted from an undiagnosed illness or a medically unexplained chronic multisymptom illness. The above-described treatment records indicate the Veteran has several service-connected diagnosable non-multi-system illnesses that were the likely cause of his fatigue. Further, the Veteran underwent a VA Gulf War general examination in December 2015. On that occasion, the examiner opined the Veteran’s chronic fatigue was less likely than not related to a specific exposure event experienced during his service in Southwest Asia. In support of this opinion, the examiner stated the Veteran had a few episodes where the symptom of fatigue accompanied his other symptoms for a different medical condition/diagnosis and resolved without residual as the primary condition resolved. In addition, the examiner noted the inexistence of a current diagnosis or condition of chronic fatigue syndrome. The examiner concluded the Veteran’s chronic fatigue was not related to an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. To the extent that the Veteran asserts he has a chronic fatigue syndrome, the Board finds that such a determination is more suited to the realm of medical, rather than lay expertise. The Veteran’s statements are competent as to experiencing fatigue; however, the diagnosis of chronic fatigue syndrome is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent diagnostic opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran’s lay assertions do not constitute competent evidence of a current chronic fatigue syndrome in this case. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, because a current diagnosis of chronic fatigue syndrome has not been shown and the record does not indicate his chronic fatigue resulted from an undiagnosed illness or a medically unexplained chronic multisymptom illness, the preponderance of the evidence is against the Veteran’s claim of service connection. As such, the benefit-of-the-doubt rule does not apply and the claim of entitlement to service connection for chronic fatigue syndrome must be denied. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis with heel spurs Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. §1155; 38 C.F.R. §§3.321(a), 4.1. Under Diagnostic Code 5276, for acquired flatfoot, a noncompensable evaluation is granted whenever there are mild symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, 20 and 30 percent ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. §4.71a, Diagnostic Code 5276. In his May 2016 VA Form 9, the Veteran expressed his disagreement with a December 2015 VA examination report that did not show he had pain on manipulation of the feet, extreme tenderness, or inward bowing of the Achilles tendons. Further, the Veteran alleged he experiences chronic feet pain in the morning, when pressure is applied on his heels, and during prolonged walking, as well as swelling and chronic pain in his left and right Achilles tendons. The Veteran underwent a VA feet examination in December 2009. On that occasion, the examiner observed the Veteran had recurrent pain in his bilateral arches and heels, which was worse in the morning. The examiner also noted the Veteran used a night splint, which helped with the feet pain. The Veteran denied any other significant functional or activity limitations from this condition. The Veteran underwent additional feet examinations in August 2015 and December 2015. The examiners stated the Veteran experienced pain on use of the feet; notably, pain in the bottom of the bilateral feet with prolonged weight-bearing and/or standing. However, the examiners found no objective evidence of pain on manipulation of the feet, swelling on use, or characteristic callouses. Further, the examiners did not find objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, inward bowing of the Achilles tendons, or marked inward displacement and severe spasm of the tendo achillis on manipulation. To the extent that the Veteran asserts he has extreme tenderness and inward bowing of the Achilles tendon, the Board finds that such a determination is more suited to the realm of medical, rather than lay expertise. The Veteran’s statements are competent as to experiencing pain and swelling; however, determining the severity of his bilateral feet symptoms is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent medical opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the Board notes a November 2007 X-ray of the bilateral feet showed no soft tissue swelling or effusions and the Veteran’s treatment records are otherwise silent for reports of feet swelling or treatment for his bilateral plantar fasciitis. In light of the foregoing, the Board finds the Veteran’s service-connected bilateral plantar fasciitis has manifested by moderate symptoms including pain on use of the bilateral feet, which more closely approximate to the criteria for a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Because the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply and the claim of entitlement to an initial disability rating in excess of 10 percent for his service-connected bilateral plantar fasciitis must be denied. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel