Citation Nr: 18150198 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-00 510 DATE: November 14, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome is granted. Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for insomnia is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service connected disease or injury, is remanded. Entitlement to service connection for headaches, as secondary to service connected disease or injury, is remanded. FINDINGS OF FACT 1. The Veteran served on active duty in Saudi Arabia in November 1990. 2. The Veteran has medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms, including chronic fatigue syndrome and fibromyalgia. 3. The Veteran’s insomnia is related to his service-connected fibromyalgia. CONCLUSIONS OF LAW 1. Chronic fatigue syndrome is presumed to have been incurred as a result of the Veteran’s active service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3303, 3.317 (2017). 2. Fibromyalgia is presumed to have been incurred as a result of the Veteran’s active service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 3. Insomnia is proximately due to or the result of the Veteran’s service-connected fibromyalgia. 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to July 1986 and in November 1990. With regard to the Veteran’s chronic fatigue syndrome, sleep apnea and headache claims, the Board notes that the Agency of Original Jurisdiction (AOJ) characterized the issues in the March and July 2014 rating decisions, and subsequent adjudications, as applications to reopen the previously denied claims for service connection, due to the fact that the claims were previously denied in a December 2012 rating decision. The Board notes, however, that since the time of the December 2012 rating decision, additional relevant service department records have been associated with the claims file. Pursuant to 38 C.F.R. § 3.156(c) (2017), the Board finds that, due to the newly submitted service records, the issues must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims. 38 C.F.R. § 3.156(c). In March 2013, the Veteran filed a claim, in part, for service connection for “psychological condition (sleep disorder with anxiety)”. Although the AOJ considered the Veteran’s claims of service connection for sleep apnea and service connection for sleep disorder with anxiety as a singular claim, claims that are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). Therefore, the Board has considered these separately. Furthermore, the Board has considered the Veteran’s claim of service connection for sleep disorder with anxiety broadly as a sleeping disability, to include insomnia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which specifically includes a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome and fibromyalgia. See 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317 (2017). Compensation shall not be paid under 38 C.F.R. § 3.317 if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between a veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability. 1. Entitlement to service connection for chronic fatigue syndrome The Veteran’s service treatment records do not reveal complaint of or treatment for chronic fatigue syndrome. The Veteran was seen by a VA examiner in November 2015 for a chronic fatigue syndrome (CFS) examination. Upon examination of the Veteran, and noting a November 2007 diagnosis for chronic fatigue syndrome based on a viral infection three years earlier, the examiner opined “[m]edical literature does not support the contention that a past environment exposure would be the likely etiology of a viral infection 14 years in the future. However, statements in the record support that the Veteran’s symptoms began before 2004, but worsened at that time. For example, the Veteran testified his symptoms and over the counter treatment began in 1990, “[b]ut then come 2004, it -- it got worse, and then I had another sore throat... [t]hen 2005 it ignited. It was more acute.” See July 2016 hearing transcript, pg 6; see also May 2012 statement of Veteran’s brother (received November 17, 2013). In view of the Veteran testimony, as well as the statements of others, the Board finds the Veteran’s contention of the onset of symptoms starting in 1990 credible. The VA examiner also stated, “the Veteran’s complaints have a clear etiology”, but did not state what the etiology is. Instead the examiner merely stated what aggravates the Veteran’s complaints, rather than what causes them. A review of the record reveals several diagnoses and assessments of chronic fatigue syndrome, and that the Veteran receives Social Security Administration (SSA) benefits due to chronic fatigue syndrome. See January 24, 2007 SSA Fully Favorable decision. However, for VA purposes, a diagnosis of CFS must meet certain criteria. 38 C.F.R. § 4.88a. Although no clinician has explicitly stated their diagnoses or assessments are based on all such criteria, the Board notes the record demonstrates such criteria are met when considering the Veteran’s statements and the medical evidence of record. See, e.g., August 2014 Gulf War Examination (assessment included insomnia, tension headaches, fatigue and chronic back pain; unremarkable lab tests and uranalysis; “no objective indication of chronic disease or illness.”). Moreover, VA clinicians have assessed the Veteran with CFS, noting it is controlled in part by medication. See March 25, 2014 VA treatment note (assessment includes CFS, fibromyalgia, and axial skeletal pain), and April 18, 2013 VA treatment note (CFS and fibromyalgia managed well with medication and physical therapy). In review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has had chronic fatigue syndrome to a compensable degree during the appeal period. See 38 C.F.R. § 4.88b, Diagnostic Code 6354 (compensable rating for symptoms controlled by continuous medication). As the Veteran has had chronic fatigue syndrome to a compensable degree during the appeal period, it is presumed to have been incurred as a result of the Veteran’s active service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). Therefore, entitlement to service connection for chronic fatigue syndrome is warranted. 2. Entitlement to service connection for fibromyalgia Similar to chronic fatigue syndrome, fibromyalgia is a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms that the Veteran has had during the pendency of this claim, despite findings to the contrary by the November 2015 VA examiner. The November 2015 VA examiner checked a box on the examination report indicating the Veteran has never been diagnosed with fibromyalgia. The examiner went on to note the Veteran constantly or nearly constantly has fibromyalgia symptoms, including widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headache and anxiety. However, the examiner did not find that the Veteran had any tender points (trigger points) for pain present. Additionally, the examiner stated, the “Veteran gives subjective report of paresthesias in the upper arms and across the chest, however prior EMG testing and CXR were normal.” The examiner also found that some of the Veteran’s symptoms are not attributable to a known diagnosis. However, noting an onset of symptoms in 2011, the examiner went on to opine, “There is no current clinical or diagnostic evidence for a constellation of symptoms that is consistent with a diagnosis of fibromyalgia on examination today. No diagnosis for fibromyalgia possible.” A review of the record reveals the Veteran has been found to have fibromyalgia on multiple occasions, despite the November 2015 examination report’s indication to the contrary. In October 2013, the Veteran called VA to file a claim for fibromyalgia, stating he was diagnosed in 2012 by a private pain specialist. A July 2012 treatment record reveals the Veteran was assessed with fibromyalgia. Dr. L.S. noted the Veteran was positive for 14 of 18 positive tender points. See July 11, 2012 private treatment record (received November 17, 2013). Furthermore, VA clinicians have assessed the Veteran with fibromyalgia and noted that the Veteran is treated with medication and therapy. The Board finds the November 2015 examination report to have little probative value as it made the factually inaccurate statement that the Veteran had never been diagnosed with fibromyalgia, which is contradicted by evidence of record that was available at the time of the examination. In review of the evidence of record, the Board finds the Veteran has had fibromyalgia to a compensable degree during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. As the Veteran is a Persian Gulf veteran who has had fibromyalgia to a compensable degree during the appeal period, fibromyalgia is presumed to have been incurred as a result of the Veteran’s active service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). Therefore, entitlement to service connection for fibromyalgia is warranted. 3. Entitlement to service connection for sleep disability, to include as secondary to service connected disease or injury As discussed above, the Veteran’s application to reopen the issue of service connection for sleep apnea was initially an attempt by the Veteran to file a claim of service connection for “sleep disorder with anxiety”. The Board has construed the Veteran’s claim broadly as a claim of service connection for sleep disability and finds service connection for insomnia is warranted. A review of the record reveals conflicting opinions on the source of the Veteran’s sleep disability. In June 2005, the Veteran was found to have chronic psychophysiologic insomnia. Other diagnoses included tension type headache and paraesthesias. See June 30, 2005 private treatment record. In a July 11, 2012 self-report that accompanied Dr. L.S.’s assessment of CFS and fibromyalgia, the Veteran reported his pain nearly completely interferes with insomnia (9/10). In March 2014, a VA clinician stated the Veteran “[c]arries a diagnoses of both fibromyalgia and chronic fatigue syndrome. These are diagnoses well document in the scientific medical literature to have associated depression. Irritability, isolation and poor sleep are far more likely to be manifestation of his pain disorder than a second MH [mental health] disease process.” There is evidence for and against the Veteran’s claim and the Board finds the evidence favors a finding that the Veteran’s insomnia is secondary to his herein service connected fibromyalgia. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service connected disease or injury, is remanded At his hearing, the Veteran testified he “was sleeping perfectly fine” before he went to Saudi Arabia. He further testified that since servicing in the Persian Gulf “[t]hings just got progressively worse as time went on” and that his “sleep issues really came on around 2005”. See July 2016 hearing testimony, page 20. As discussed above, an association between CFS, fibromyalgia and insomnia was found by a clinician, but the evidence of record does not reveal such an opinion about obstructive sleep apnea. The November 2015 VA examiner did not provide an opinion on the etiology of the Veteran’s obstructive sleep apnea. Therefore, a remand is warranted to obtain a medical opinion on whether the Veteran’s sleep apnea is related to service or a service connected disability. Additionally, the Veteran testified that the claims file contains incomplete records from the Social Security Administration. This is supported by the Veteran having to provide the Administrative Law Judge decision in his SSA case, which was not provided to VA by SSA. See statement in support of claim received November 17, 2013. 2. Entitlement to service connection for migraine or headache disorder, to include as secondary to service connected disease or injury, is remanded In November 2015, the Veteran was provided a VA headache examination by the same examiner that evaluated his fibromyalgia. The examiner opined the Veteran’s “current headaches are likely tension-type headaches associated with and aggravated by muscle tension and muscle spasms related to DDD [degenerative disc disease] of the cervical spine.” However, the same examiner listed headache as one of the “findings, signs or symptoms attributable to fibromyalgia”. In light of these above, remand is warranted to obtain a clarifying addendum opinion on the relationship between the Veteran’s headaches and his fibromyalgia. This matter is REMANDED for the following action: 1. Obtain the Veteran’s federal records from SSA. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury or disease. The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated by service-connected disease or injury. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s headache disability is at least as likely as not proximately due to or aggravated by service-connected disease or injury to include fibromyalgia. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel