Citation Nr: 18151386 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 05-03 056 DATE: November 19, 2018 ORDER Service connection for chronic fatigue syndrome is denied. REMANDED The issue of entitlement to service connection for hypertension, to include as secondary to his service-connected disabilities is remanded. The issue of entitlement to service connection for a left shoulder disability is remanded. The issue of entitlement to bilateral carpal tunnel syndrome is remanded. The issue of entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT The evidence of record does not establish a current diagnosis of chronic fatigue syndrome. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1132, 1133; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1984. Thereafter, he had long-term service with the Puerto Rico Army National Guard (PRARNG), which included a period of active duty from May 2002 to November 2002. 1. The issue of entitlement to service connection for chronic fatigue syndrome The Veteran contends that he has chronic fatigue syndrome, which stems from his service. See July 2008 Statement in Support of Claim. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease as incurred during active duty service. 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his claimed chronic fatigue syndrome. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, he is not competent to render a medical diagnosis or an opinion on the etiology thereof. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). Therefore, in this regard, the Board relies on the medical evidence of record. A review of the claims file shows that although the Veteran has complained of tiredness and fatigue during the pendency of this appeal, he has never been diagnosed with chronic fatigue syndrome. Rather, his VA treatment records appear to indicate his complaints were manifestations of other disabilities. For instance, a July 2011 VA Pulmonary Consult suggests his report of feeling tired or fatigued was associated with the assessment of sleep apnea and a November 2012 VA Psychiatric Progress Note attributed his complaint of daily tiredness to insomnia stemming from his diagnosis of major depressive disorder. The Veteran has undergone one VA examination with respect to this claim in December 2016. December 2016 Chronic Fatigue Syndrome VA Examination Report. Following examination, the VA examiner determined he did not have a current diagnosis of chronic fatigue syndrome. In reaching this decision, the VA examiner found he had other clinical conditions, which produced symptoms similar to those associated with chronic fatigue syndrome. Specifically, the VA examiner cited his complaint of generalized muscle aches or weakness, headaches, migratory joint pains and sleep disturbance. The VA examiner explained these symptoms were encompassed by his diagnoses of fibromyalgia and major depressive disorder. Similarly, the VA examiner noted his complaint of inability concentrating began following his diagnosis of major depressive disorder. The Veteran has already been granted service connection for fibromyalgia as well as major depressive disorder. See March 2018 Rating Decision. There are no other symptoms he attributes solely to his claimed chronic fatigue syndrome. See December 2009 Decision Review Officer Hearing Transcript at 18 (the Veteran’s representative stated his service connection claim was part and parcel of his service connection claim for fibromyalgia); cf. 38 C.F.R. § 4.14 (2017). In light of the above, the Board finds there is insufficient evidence of a current diagnosis of chronic fatigue syndrome. Cf. Shedden, supra. Since there can be no valid claim without evidence of a current disability, the Board finds the preponderance of the evidence weighs against the Veteran’s service connection claim for chronic fatigue syndrome. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); cf. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). REASONS FOR REMAND 1. The issue of entitlement to service connection for hypertension, to include as secondary to his service-connected disabilities is remanded. The Veteran has a current diagnosis of hypertension. See August 2009 VA Primary Care Note. He contends it began in 1991, in service, when a treatment provider noted his blood pressure reading was high. December 2009 Decision Review Officer Hearing Transcript at 17. Subsequently, he was formally diagnosed with hypertension while serving his second period of active duty. In the alternative, he asserts it was caused by the medications he has been prescribed for his service-connected disabilities. Undated Continuation Sheet for Item 10 (translated October 2018); see also December 2007 Farmacia Nueva Medication Information. He has yet to be afforded a VA examination with respect to this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a remand is necessary to provide him with one. As another matter, as noted above, the Veteran served two periods of active duty and had long-term service in the PRARNG. A review of the claims file is negative for verification of or requests to verify the dates any active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during his service in the PRARNG. Given that he was not serving on active duty in 1991, a remand is necessary to verify the dates of his ACDUTRA and INACDUTRA service. See 38 U.S.C. § 101(24)(B), (C) (2012); see also Venturella v. Gober, 10 Vet. App. 340, 343 (1997). 2. The issues of entitlement to service connection for a left shoulder disability; and service connection for bilateral carpal tunnel syndrome are remanded. In a March 2016 decision, the Board remanded these claims for a VA examination to determine their nature and etiology. In doing so, the Board directed the VA examiner to consider and weigh his relevant lay statements. In December 2016, he underwent a series of VA examinations. December 2016 Shoulder and Arm Conditions VA Examination Report; December 2016 Peripheral Nerves Conditions VA Examination Report. In the end, although the respective VA examiners confirmed he presently had a diagnosis of impingement syndrome of the left shoulder and bilateral carpal tunnel syndrome, each VA examiner rendered a negative nexus opinion. In doing so, both VA examiners failed to consider and weigh his relevant lay statements of record that these disabilities stemmed from a fall down a 12 feet deep ditch in service in 1991 during a reconnaissance training exercise. Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006); cf. also Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, a remand is necessary for addendum VA medical opinions. 3. The issue of entitlement to service connection for a lumbar spine disability is remanded. In the March 2016 decision, the Board also remanded this claim for a VA examination to determine its nature and etiology. Again, in doing so, the Board directed the VA examiner to consider and weigh his relevant lay statements. In December 2016, he underwent a VA examination. December 2016 Back Conditions VA Examination Report. In the end, although the VA examiner confirmed he presently had a diagnosis of mild bulging discs at the L4-L5 and L5-S1, the VA examiner rendered a negative nexus opinion. Once more, in doing so, the VA examiner failed to consider and weigh his relevant lay statements of record that his lumbar spine disability stemmed from a fall down a 12 feet deep ditch in service in 1991 during a reconnaissance training exercise. Cf. Buchanan, supra; cf. also Stegall, supra. Consequently, a remand is necessary for an addendum VA medical opinion. Alternatively, the Veteran asserts his claimed lumbar spine disability is due to his service-connected residuals of a left knee injury. See December 2009 Decision Review Hearing Transcript at 12. He was previously afforded a VA Examination in October 2007. October 2007 Spine VA Examination Report. Even though this VA examiner diagnosed him with lumbar strain myositis and lumbar disc herniation upon examination, the VA examiner rendered a negative nexus opinion, finding that his service-connected residuals of a left knee injury did not cause either lumbar spine diagnosis. In doing so, the VA examiner failed to address the issue of aggravation. Cf. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The issue of secondary service connection was not addressed by the December 2016 VA examiner whatsoever. As such a remand is necessary an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain verification of all periods (specific dates) of active duty for training and inactive duty for training during the Veteran’s PRARNG service from the appropriate agency(ies). Specifically, obtain a copy of the Defense Joint Military Pay System-Reserve Component Master Military Pay Account. 2. Obtain all relevant, outstanding VA treatment records. 3. Once the first two requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed hypertension. After reviewing the claims file, the examiner should: (a.) Opine was to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s hypertension was caused by or is otherwise related to his periods of active duty service or any period of ACDUTRA and explain why. (b.) If the Veteran’s hypertension is not caused by or otherwise related to his active duty service or any period of ACDUTRA, opine as to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by his service-connected disabilities, to include the medications he has been prescribed for them, and explain why. (c.) In doing so, the examiner should consider the December 2007 Farmacia Nueva Medication Information, which indicates the Veteran was prescribed an anti-depressant, which may increase blood pressure. (d.) In doing so, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include his testimony during the December 2009 Decision Review Officer hearing. 4. Once the second request has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed left shoulder disability. The need for another examination is left to the discretion of the medical professional offering the opinion. After reviewing the claims file, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s claimed left shoulder disability was caused by or is otherwise related to his service, to include a fall down a 12 foot deep ditch in service in 1991 during a reconnaissance training exercise, and explain why. (b.) In doing so, the examiner should consider the July 1991 Chronological Record of Medical Care (translated as March 1991 Chronological Record of Medical Care) documenting the Veteran’s left elbow, thumb and wrist complaints following a fall down 12 feet. (c.) In doing so, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include his testimony during the December 2009 Decision Review Officer hearing. The examiner is reminded the lack of contemporaneous medical evidence is not necessarily fatal to the claim. As such, the examiner should discuss whether the Veteran’s relevant lay statements of record present sufficient etiological evidence. 5. Once the second request has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed bilateral carpal tunnel syndrome. The need for another examination is left to the discretion of the medical professional offering the opinion. (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s claimed bilateral carpal tunnel syndrome was caused by or is otherwise related to his service, to include a fall down a 12 foot deep ditch in service in 1991 during a reconnaissance training exercise, and explain why. (b.) In doing so, the examiner should consider the July 1991 Chronological Record of Medical Care (translated as March 1991 Chronological Record of Medical Care) documenting the Veteran’s left elbow, thumb and wrist complaints following a fall down 12 feet. (c.) In doing so, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include his testimony during the December 2009 Decision Review Officer hearing. The examiner is reminded the lack of contemporaneous medical evidence is not necessarily fatal to the claim. As such, the examiner should discuss whether the Veteran’s relevant lay statements of record present sufficient etiological evidence. 6. Once the second request has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed lumbar spine disability. The need for another examination is left to the discretion of the medical professional offering the opinion. After reviewing the claims file, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s claimed lumbar spine disability was caused by or is otherwise related to his service, to include a fall down a 12 foot deep ditch in service in 1991 during a reconnaissance training exercise, and explain why. (b.) If the Veteran’s claimed lumbar spine disability was not caused by or is other otherwise related to his service, opine as to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by his service-connected residuals of a left knee injury and explain why. (c.) In doing so, the examiner should consider the July 1991 Chronological Record of Medical Care (translated as a March 1991 Chronological Record of Medical Care) documenting the Veteran’s complaint of back pain following a fall down 12 feet; and July 1992 Chronological Record of Medical Care documenting his complaint of low back pain over a three day period. (d.) In doing so, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include his testimony during the December 2009 Decision Review Officer hearing. 7. Once the above requests have been completed, to the extent possible, readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel