Citation Nr: 18156892 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-59 265 DATE: December 11, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome as due to an undiagnosed illness is denied. Entitlement to service connection for sleep apnea as due to an undiagnosed illness, and as secondary to a service-connected disorder is denied. FINDINGS OF FACT 1. The Veteran does not have current diagnosis of chronic fatigue syndrome, to include as due to an undiagnosed illness manifested by fatigue. 2. The Veteran’s sleep complaints have been attributed to obstructive sleep apnea, which is a known diagnosed disability, and the disorder is not shown to be related to his military service, to include as due to or aggravated by an undiagnosed illness, or secondary to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome as due to an undiagnosed illness have not been met. 38 U.S.C. 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.317 (2017). 2. The criteria for service connection for obstructive sleep apnea as due to an undiagnosed illness, or as secondary to a service-connected disability have not been met. 38 U.S.C. 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to March 1991 and from December 1992 to July 1998, to include service during the Gulf War era. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on May 17, 2018. However, the appeal for the chronic fatigue disorder and sleep apnea claims have already been activated at the Board and are therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Service Connection Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness that became manifest either during active 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 which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on undiagnosed illness, 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). Notably, laypersons are competent to report objective signs of illness. Id. A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). The term 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, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317 (a)(2)(ii). Therefore, even if a multi-symptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. Id. “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed 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; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b) (emphasis added). 1. Entitlement to service connection for chronic fatigue syndrome The Veteran contends he has chronic fatigue syndrome due to an undiagnosed illness associated with his Gulf War service or environmental hazard. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); See Holton, 557 F.3d at 1366; 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). The Veteran’s service treatment records are silent regarding any complaints of or symptoms related to chronic fatigue. In a February 2013 VA treatment record, the Veteran reported a history of fatigue. In a June 2013 VA treatment record, the Veteran reported chronic fatigue regarding possible Gulf War Syndrome. The Veteran was afforded a Gulf War Examination in July 2014, at which time the examiner noted that there were not any diagnosed illnesses for which no etiology was established. The Veteran was afforded a VA examination in April 2017. The examiner noted that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Veteran reported that he was told that he had fatigue in 1999 due to his lifestyle, to include working and going to school at the same time but that he had not been diagnosed with chronic fatigue syndrome. In an April 2018 Gulf War examination, the examiner determined that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Veteran reported that he feels sleepy during and at the end of the day. The VA examiner stated that chronic fatigue syndrome is not an independent diagnosis and that the Veteran did not meet the criteria for the disability pattern. Further, the examiner noted that it is a symptom and was likely to be secondary to a condition, such as a lack of proper sleep. The examiner also noted that it was less likely to be secondary to a specific environmental exposure during the Gulf War. Though the Veteran believes his fatigue is associated with his military service, he lacks a required current diagnosis for the purposes of VA disability service connection. He has also not been found to have chronic fatigue syndrome caused by an undiagnosed illness. Further, the Board gives more probative weight to the competent medical evidence from the VA examiner, who concluded the Veteran’s fatigue symptoms are more likely associated with his lack of sleep, not service. The record does not contain an opinion from any other medical provider that supports the Veteran’s claim that his fatigue is etiologically related to military service, including an undiagnosed illness associated with Gulf War service. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea, to include as due to his service-connected rhinitis, chronic sinusitis, and GERD The Veteran contends he has sleep apnea due to an undiagnosed illness associated with his Gulf War service, to include as secondary to his service-connected rhinitis, chronic sinusitis, and GERD. The Veteran’s service treatment records are silent regarding any complaints of or symptoms related to sleep apnea. The evidence of record reveals that the Veteran was diagnosed with sleep apnea in April 2013. The Veteran was afforded a Gulf War Examination in July 2014, at which time the examiner noted that there were not any diagnosed illnesses for which no etiology was established. In a May 2015 NOD, the Veteran noted that his sleep apnea was caused or aggravated by his service-connected allergic rhinitis, chronic sinusitis, and GERD. The Veteran submitted articles and prior Board decision in which sleep apnea claims were granted as secondary to such disorders. The Veteran was afforded a VA examination in September 2016. The examiner opined that it was less likely than not that the Veteran’s sleep apnea was proximately due to or the result of his service-connected GERD, sinusitis, or allergic rhinitis. The rationale provided was that sleep apnea was a complex disease based on individual circumstances and relevant medical literature. The examiner also acknowledged that there was a known association between GERD, sinusitis, and allergic rhinitis with obstructive sleep apnea, but stated that in the Veteran’s individual circumstance, his service-connected conditions did not cause his sleep apnea. In furtherance of the opinion, the examiner noted the mild nature of the Veteran’s sleep apnea, and noted that the more likely etiology was that of his obesity, as well as his male gender. The examiner also cited to medical literature which noted that the risk factors of sleep apnea, to include those which he cited in his opinion. The examiner also opined that there was no evidence of aggravation and that, therefore, no baseline prior to aggravation existed. In support of this opinion, the examiner cited the Veteran’s BMI at the time of his diagnosis and noted that his level of sleep apnea was consistent with his obesity and therefore there was no evidence of aggravation of his sleep apnea by any additional medical conditions. The Veteran submitted a November 2016 private treatment record, authored by Dr. B.P., which revealed that the Veteran was diagnosed with obstructive sleep apnea. The physician opined that the Veteran’s nasal obstruction, deviation of the septum, and turbinate hypertrophy contributed to his sleep apnea and CPAP difficulties. In a March 2017 addendum opinion to the September 2016 VA examiner, the examiner noted that the leading causes of obstructive sleep apnea remain being overweight and male with the disorder also becoming more common as one ages. The examiner noted that the Veteran’s body mass index exceeded 30, which more likely accounted for his obstructive sleep apnea. The examiner also discounted the November 2016 private treatment record by stating that although the private physician noted that the Veteran had difficulty tolerating the CPAP device due to a deviated septum and nasal obstruction, this does not indicate that these disorders caused his sleep apnea. The examiner also reported that obstructive sleep apnea occurs in the airway below the mouth, which is not affected by nasal obstruction or a deviated septum, and thus not affected by the sinuses or GERD. The Veteran was afforded a VA examination in April 2017. The examiner noted that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Veteran reported that he was told that he had fatigue in 1999 due to his lifestyle, but that he had not been diagnosed with chronic fatigue syndrome. Though the Veteran believes his sleep apnea is associated with his military service, he lacks a required current diagnosis for the purposes of VA disability service connection. He has also not been found to have sleep apnea caused by an undiagnosed illness, as his sleep problems have been attributed to a known clinical diagnosis: obstructive sleep apnea. Further, the Board gives more probative weight to the competent medical evidence from the VA examiner than that of the Veteran’s lay statements and private physician, as the VA examiner’s opinion was based on a thorough review of the Veteran’s relevant military and personal history and contained a more thorough rationale. The VA examiner concluded that the Veteran’s sleep apnea was more likely associated with separate etiologies, to include his obesity and male gender. The examiner also discounted the private physician’s opinion and noted the reasons why his service-connected disabilities did not cause or aggravate his sleep apnea. The Board also acknowledges the articles submitted as well as the prior Board decisions. However, the Board notes that the articles are generic in nature and do not take into account the conditions regarding the Veteran’s individual case of sleep apnea, and the prior Board decisions hold no precedential weight. Further, the record does not contain an opinion from any other medical provider that supports the Veteran’s claim that his fatigue is etiologically related to military service, including an undiagnosed illness associated with Gulf War service. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel