Citation Nr: 18146589 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 11-20 166A DATE: October 31, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome, to include as an undiagnosed illness or medically unexplained chronic multi-symptom illness manifested by systemic joint and muscle pain due to Persian Gulf service, is denied. REMANDED Entitlement for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to service connection for bilateral lower extremity disorder, to include as secondary to DDD of the lumbar spine is remanded. FINDINGS OF FACT 1. The Veteran does not have current chronic fatigue syndrome. 2. Chronic Fatigue symptomatology was not continuous or recurrent in service; chronic fatigue has not been continuous or recurrent since separation from service; and no provider has found either an undiagnosed illness or a medically unexplained chronic multi-symptom illness manifested by chronic fatigue. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. §1117 have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1117, 1131, 5103(a), 5130A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty training from July 1981 to December 1981. He had active duty service from November 1990 to May 1991; from January 2001 to February 2001; and from February 2003 to July 2004. These matters coms to the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) RO in Denver, Colorado. A review of the record reveals that the issues in this case have been characterized in various ways. As reflected above, the Board has recharacterized certain service connection issues to address most fully and efficaciously the benefits sought by the Veteran, as evinced in the evidence of record. In this respect, the Board observes that the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Chronic Fatigue Syndrome The Veteran avers that chronic fatigue syndrome, or chronic multi-symptom undiagnosed chronic fatigue symptomatology, was incurred in active service, to include service in the Persian Gulf. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence—about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, special service connection rules exist for Persian Gulf Veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes 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 (2). In this case, service in the Southwest Asia Theater of operations is demonstrated by the Veteran’s service personnel records. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117(d). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A “medically unexplained chronic multi-symptom illness” means 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “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 or medically unexplained chronic multi-symptom 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; and other symptoms not applicable to this claim. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direction causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A review of the Veteran’s service treatment records (STRs) provides a May 2004 Report of Medical Examination. The Board observes that this examination occurred approximately two months prior to the Veteran’s final separation from service. Clinical evaluations of the Veteran’s neurological and musculoskeletal systems were normal. In an October 2004 Post-Deployment Examination (three months after the Veteran’s final separation from service), a military examiner reported that the Veteran’s general health was good. Moreover, this examiner indicated that the examination findings did not warrant referral for fatigue, malaise, or multi-symptom complaint, noting that the Veteran did not articulate any environmental, occupational, or mission-related concerns. In May 2009, the Veteran was afforded a VA examination. The examiner reviewed the claims file; considered the Veteran’s subjective accounts; and conducted a diagnostic interview and physical examination. The examiner initially opined that the Veteran had not been diagnosed with “undiagnosed illness.” Moreover, the Veteran did not report significant sleep disturbances. The examiner’s findings from the diagnostic interview provided that the Veteran suffered from neither incapacitating episodes nor from cognitive impairment. Also, the Veteran was not on any medication for chronic fatigue syndrome. Upon physical examination, she noted that the Veteran was fully and independently ambulatory and in no apparent discomfort. In the “muscles” section of the examination report, she opined that the Veteran endorsed neither subjective symptoms nor complaints of chronic (undiagnosed) muscle pain. Moreover, muscle bulk and function were found to be normal, based upon objective criteria. In the neurological section of the examination, the examiner reported that the Veteran endorsed back and bilateral lower extremity pain; however, there were no additional indications of neurological symptoms or deficits. There were no indications of involuntary body movements; tics; paramyoclonus complex; chorea; or choreiform movements. In December 2009, the Veteran submitted a statement. In pertinent part, he raised a claim for hyperthyroidism “in relation to” chronic fatigue, as it relates to Gulf War illnesses. He also opined that he had been diagnosed and treated for this clustered disorder. In April 2011, the Veteran was afforded a VA examination. The examiner reviewed the claims files; contemplated the Veteran’s subjective accounts; and conducted a clinical interview as to chronic fatigue syndrome. This examiner took note of the past notation of “no diagnosis of ‘undiagnosed illness’” noted in the May 2009 examination report. The examiner opined that is was curious in that the May 2009 examination evaluated chronic fatigue syndrome; however, the examiner only provided a diagnostic impression of no undiagnosed illness. Upon review of the evidence of record, this examiner opined that the criterion of new onset of debilitating fatigue that is severe enough to reduce or impair the Veteran’s average daily activity below 50 percent of the Veteran’s pre-contended illness activity for a period of 6 months had not been met. Moreover, the examiner reported that the criterion that other clinical conditions that might produce similar symptoms—based upon history, physical examination, and appropriate laboratory tests—had not been met. And, according to the examiner, 6 out of 10 chronic fatigue diagnostic criteria had not been met. Therefore, the examiner concluded that it is absolutely clear that there is no established diagnostic impression of chronic fatigue syndrome. In a November 2011 statement (dating from September 2011), a soldier who served with the Veteran in Saudi Arabia wrote that he was told that the Veteran had become fatigued in service and expressed a desire to trade off duties with his vehicle partner. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for chronic fatigue syndrome, is not warranted, either on a presumptive basis or on a direct basis. In reaching these conclusions, the Board has carefully considered the Veteran’s assertions in the evidence of record. The Board acknowledges that, as a lay witness, the Veteran is competent to report discernable symptoms such as exhaustion. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses—that which is heard, felt, seen, smelled, or tasted”). Clearly, the Veteran is competent to report whether he feels tired. Nevertheless, ascertaining a diagnostic impression of chronic fatigue disorder or determining chronic multi-symptom undiagnosed chronic fatigue symptomatology—conditions involving expert knowledge of immune disorders, viral infection, hormonal imbalance, and neurology—is beyond the scope of lay observation. See id. Thus, a determination as to the etiology of the chronic fatigue disorder and/or chronic multi-symptom undiagnosed chronic fatigue symptomatology are not susceptible of lay opinion and require highly specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. As noted above, the evidence of record fails to show that the Veteran suffered from chronic multi-symptom undiagnosed chronic fatigue symptomatology in service. Moreover, the record of evidence fails to reveal a continuity of this symptomatology since separation from service. Because there is no in-service injury or disease to which a competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for chronic fatigue syndrome. See 38 U.S.C. § 5103(a)(2) (VA “is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim”); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is “no reasonable possibility that further assistance would substantiate the claim”). Concerning a grant of service connection on a direct basis, the Board observes that service connection is predicated upon the existence of a current disability. See Holton, supra. The evidence of record fails to reveal a current disability. Here, the Board assigns substantial probative weight to the expert medical opinion of April 2011. Through review of evidence and application of dispositive diagnostic criteria, the April 2011 VA examiner concluded that it is absolutely clear that there is no established diagnostic impression of chronic fatigue syndrome. In the absence of a disability, compensation may not be awarded. In the absence of evidence of current chronic fatigue disorder, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence of record does not contain a diagnostic impression of chronic fatigue disorder, which would necessitate professional medical evaluation and commentary. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). To be clear, the Veteran does not have chronic fatigue disorder and any assertion to the contrary is not credible. The preponderance of evidence is against the Veteran’s claim and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert, supra. REASONS FOR REMAND DDD of the Lumbar Spine Lower Extremity Disorder Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that DDD of the lumbar spine was aggravated by strains and injury sustained in active service. He further contends that bilateral lower extremity disorder was proximately caused by his “aggravated” DDD of the lumbar spine. Upon review of the evidence of records, the Board observes that examiners have provided widely divergent opinions as to the issue of aggravation of DDD. Further, the evidence reveals discrepant diagnostic impressions as to the bilateral lower extremity disorder, which necessarily segues into a consideration of its respective etiology. To date, an examiner has not reconciled divergent medical opinions, treatment records, and lay evidence vis-à-vis DDD and bilateral lower extremity disorder, with a reasoned rationale which “subsumes” discrepancies in the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”); 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Hence, a new VA examination is required. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any private treatment records. If obtained, associate these treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 2. Request outstanding records of VA outpatient treatment, if any, for the Veteran and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for VA musculoskeletal examination with an appropriate orthopedic examiner. The evidentiary record, including a copy of this remand, must be made available and reviewed by the designated examiner. All necessary testing should be conducted. Upon completion of a review of the evidence, the examiner is asked to respond to the following inquiries: a. Is it at least as likely as not (50 percent or greater likelihood) that DDD of the lumbar spine, was aggravated by strain or injury in service or was otherwise exacerbated by any incidence of service. b. Is it at least as likely as not that bilateral lower extremity disorder, however diagnosed, was proximately caused by, or aggravated by, DDD of the lumbar spine. Complete rationales should be provided for any opinion expressed. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional impact, must be acknowledged and considered in formulating any opinion. Should the examiner reject the Veteran’s reports, she or he must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, she or he should explain the reasons for such inability, and comment on whether any further evidence or information would be useful in rendering the opinion being sought. 5. Upon completion of the above review of the expanded record, readjudicate the Veteran’s claims. If any determination remains averse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel