Citation Nr: 18151157 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 11-32 218 DATE: November 20, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of chronic fatigue syndrome. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1986 to January 1992, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. In October 2015, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of this hearing has been added to the record. In November 2015, the Veteran was notified that the Veterans Law Judge who presided over his Board hearing was no longer able to participate in the appeal. Although offered another hearing before a different Veterans Law Judge, the Veteran declined that offer in December 2015. In February 2016 and August 2017, the Board remanded this matter for additional evidentiary development. It is now returned to the Board. The issues on appeal that were most recently remanded included service connection for a stomach disability and for a sinus disability. However, during the pendency of this appeal, by rating action dated in August 2018, service connection for each disability was granted. As this represents a complete grant of the benefits sought on appeal, the issues are no longer before the Board. The Board notes that some of the Veteran's service treatment records are unavailable. As such, there is a heightened obligation to assist in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Entitlement to service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. 3.317. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The appellant contends that the Veteran has manifested chronic fatigue syndrome as a result of his period of active service. During the October 2015 Board hearing, he testified that he experienced fatigue with accompanying musculoskeletal aches such that he could not get out of bed at times. He added that he felt like he was in a haze all the time, with visual disturbance. The question for the Board is whether the Veteran has diagnosed chronic fatigue syndrome that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has not had a current diagnosis of chronic fatigue syndrome at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). A review of the Veteran’s available service treatment records does not reveal any symptoms or diagnosis associated with chronic fatigue syndrome during active service. Following service, a VA general medical examination report dated in February 1992 is completely silent for any reported symptoms associated with chronic fatigue syndrome. A VA examination report dated in June 2009 shows that the Veteran reported that prior to deployment to Southwest Asia, he had been stationed in Europe and felt well-rested. He indicated that he became tired and would experience a loss of sleep. He added that following his return, he continued to feel unrested and would experience sleep disturbance. Following examination of the Veteran, the examiner concluded that there were no acute findings to warrant a diagnosis of chronic fatigue syndrome. A VA Gulf War General Medical Examination Report dated in June 2016 shows that it was indicated that the Veteran did not have, nor had he ever had, a diagnosis of chronic fatigue syndrome. A VA examination report dated in September 2016 shows that it was indicated that the Veteran had not been diagnosed with chronic fatigue syndrome, and as such, it was unrelated to environmental exposures in the Gulf arena. This opinion was reiterated by the VA examiner in December 2016. A VA Chronic Fatigue Syndrome examination report dated in November 2017 shows that the Veteran reported experiencing fatigue while stationed in the Gulf and upon return. He described very poor sleep and difficulty falling asleep, often coupled with bad dreams and nightmares. He also described low back pain that would keep him awake. The examiner indicated that the Veteran did not now have, nor had he ever had, a diagnosis of chronic fatigue syndrome. The examiner explained that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. The fatigue experienced by the Veteran was attributed to depression and a non-service-connected lumbar condition. As such, an opinion as to etiology was not indicated. Having carefully considered the evidence of record, the Board finds that such evidence has not shown that the Veteran has chronic fatigue syndrome that is related to his period of active service. His service treatment records are silent as to any related diagnosis. The post-service medical treatment records fail to establish that the Veteran has been diagnosed with chronic fatigue syndrome. The Board finds probative opinions of the VA examiners as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. In this regard, Congress has specifically limited entitlement to service-connected disability benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that the Veteran has asserted he has chronic fatigue syndrome as a result of his active service in the Southwest Asia theater of operations during the Persian Gulf War. Notwithstanding his contention, as he does not have a current diagnosis of chronic fatigue syndrome, entitlement to service connection under 38 C.F.R. § 3.317, for one of the 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 in regulations prescribed under 38 U.S.C. 1117 (d)) on a presumptive basis is not warranted. While the Veteran may believe that he has chronic fatigue syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. Consequently, the Board gives more probative weight to the competent medical evidence. Given the medical evidence against the claim, for the Board to conclude that the Veteran’s has chronic fatigue syndrome that is manifested as a result of active service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board does not doubt the Veteran’s credible reports of sleep disturbance and fatigue; however, as noted above, these symptoms have been attributed to known causes as a result of non-service-connected disabilities. Accordingly, the Veteran’s claim of entitlement to service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel