Citation Nr: 18156299 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 15-42 649A DATE: December 11, 2018 ORDER Service connection for chronic fatigue syndrome is denied. REMANDED Service connection for joint and muscle symptoms, originally claimed as fibromyalgia, is remanded. FINDING OF FACT The Veteran does not have chronic fatigue syndrome, to include an undiagnosed illness manifested by chronic fatigue, due to her service. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.88a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1988 to December 2000, with confirmed service in the Southwest Asia theater of operations during the Persian Gulf War. In February 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. At the hearing, the Veteran’s representative suggested that a total disability rating for individual unemployability (TDIU) be considered. The Board notes that the Veteran has a current appeal on the issue of entitlement to TDIU being considered through the Rapid Appeals Modernization Process (RAMP), and it is not an issue before the Board at this time. This case was previously before the Board in September 2018. At that time, the Board requested an opinion from a specialist in the employ of the Veterans Health Administration (VHA) for the issue of entitlement to service connection for joint and muscle symptoms, originally claimed as fibromyalgia. A VHA response was authored in October 2018, but the specialist was unable to render an opinion without a physical examination. Thus, the claim is being remanded as to that issue; hence the Veteran does not need an opportunity to respond to the VHA response at this time. As such, the appeal is properly before the Board. Service Connection 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834-81836 (Dec. 29, 2011). Objective indications of a 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 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)(3-4) Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i)(B). 1. Entitlement to service connection for Chronic Fatigue Syndrome (CFS) The Veteran filed a claim for service connection for CFS in April 2014, which was denied by an August 2015 rating decision. The Veteran asserts that she has CFS due to her active service. The Veteran’s service treatment records do not show complaints, treatment, or a diagnosis for CFS. Further, the Veteran’s post-service treatment records do not show any diagnosis of CFS. Although the Veteran testified before the Board in February 2017 that a VA provider diagnosed her with CFS in 2007 or sometime between 2012 and 2014, the Veteran’s VA treatment records do not contain such a diagnosis. In fact, the Veteran ceased treating with the VA in April 2006, and did not return for VA treatment again until a March 2014 encounter with the VA Emergency Room. The Veteran also provided testimony to the Board that she treated with private providers for this condition in the early 2000s when she first began experiencing symptoms. However, she also stated that she did not have the treatment records and could not recall the providers in order to assist VA with obtaining the records. The Veteran was afforded a VA examination for CFS in July 2015. The VA examiner stated that the Veteran did not then have, nor had she ever had, a diagnosis of CFS. On examination, the examiner found that the Veteran did not have any findings, signs, or symptoms attributable to CFS. Further, the examiner noted that the symptoms the Veteran attributed to CFS were tiredness and fatigue, and the Veteran had a diagnosable chronic multi-symptom illness with a partially explained etiology to account for those symptoms. Specifically, the examiner stated that the Veteran’s generalized anxiety disorder significantly contributed to her feelings of fatigue. Thus, the examiner found that it was less likely than not that the Veteran’s fatigue was related to a specific exposure event experienced by the Veteran during her service in Southwest Asia, and her service treatment records were silent for the condition, indicating that it was not onset in service. The Veteran testified before the Board in February 2017 that she served in the Gulf War in Saudi Arabia. She reported that, shortly after discharge, around 2002, she began having symptoms of CFS, for which she testified that she was formally diagnosed sometime between 2012 and 2014. However, later in the same February 2017 Board hearing, she also testified she was diagnosed with CFS in 2007 by a VA medical provider. She reported that the symptoms she experienced due to CFS were difficulty sleeping at nights and feeling sluggish. The Veteran has not submitted any medical evidence supporting her assertion that she has a diagnosis of CFS, much less any medical evidence linking CFS to her active service. Although the Veteran testified that she received such a diagnosis, the medical records associated with the claims file do not support her testimony. While the Veteran is competent to report symptoms that she can perceive through her senses, such as fatigue and trouble sleeping, she lacks the medical training and expertise to provide a medical opinion such as diagnosing the presence of CFS, as this is a complex medical determination outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the record does not show a current diagnosis of CFS. Further, the July 2015 VA examiner found that the Veteran’s fatigue symptoms were not due to an undiagnosed illness, but, rather, to a diagnosable chronic multi-symptom illness with a partially explained etiology, specifically, generalized anxiety disorder. Thus, the Veteran does not have a current condition which would support the claim for service connection. 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). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for CFS, to include an undiagnosed illness manifested by chronic fatigue, is denied. REASONS FOR REMAND 1. Service connection for joint and muscle symptoms, originally claimed as Fibromyalgia. The Veteran is also seeking service connection for joint and muscle symptoms, originally claimed as fibromyalgia. She testified before the Board in February 2017 that she had been experiencing joint pain, muscle pain, tingling, and numbness in her feet, knees, wrists, shoulders, and lower back since approximately 2002. Although the Veteran has reported that a VA provider diagnosed fibromyalgia in 2013, the Board has reviewed her VA treatment records and was unable to locate a record wherein such a diagnosis was actually rendered. The Veteran was afforded a VA examination for fibromyalgia, including a Gulf War VA examination, in July 2015. The VA examiner stated that the Veteran did not meet the criteria for a diagnosis of fibromyalgia (but did not explain why) but did have a diagnosis of arthralgia. The examiner further stated that the Veteran had a disease with a clear and specific etiology, referring to the Veteran’s arthralgia. However, arthralgia is only a symptom-based diagnosis, and is not considered a diagnosed illness which would rule out the possibility of the Veteran having a qualified chronic disability warranting a presumptive service connection as a Persian Gulf Veteran. Clarification is needed as to whether the Veteran actually has a diagnosed disease which is not a symptom-based diagnosis, or whether her symptoms are a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness. The Board sought clarification on this issue by requesting an opinion from a rheumatologist in September 2018. In October 2018, the VHA specialist responded that he was unable to provide the requested opinions, suggesting that a physical examination was needed. Thus, a VA examination should be obtained. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of her joint and muscle symptoms. The examiner should examine the Veteran and review the claims file, particularly the detailed response dated October 2018 from the VA staff rheumatologist (listed as “other” in 12/6/2018 entry in VBMS). The examiner should provide the following opinions: (a.) Can the Veteran’s joint pain, muscle pain, tingling, and numbness in her feet, knees, wrists, shoulders, and lower back be attributed to a known clinical diagnosis? Why or why not? If so, is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed disability began in or was otherwise due to her active service. Why or why not? (b.) Does the Veteran meet the criteria for a diagnosis of fibromyalgia? Why or why not? In so doing, please address the July 2015 VA examination which asserts that the criteria for fibromyalgia were not met, and the VA treatment records which continue to list fibromyalgia in the Veteran’s medical problems list. (c.) If not attributable to a known clinical diagnosis, should the Veteran’s joint pain, muscle pain, tingling, and numbness in her feet, knees, wrists, shoulders, and lower back be considered manifestations of either an undiagnosed illness or a medically unexplained chronic multisymptom illness? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel