Citation Nr: 1807148 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 05-33 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for chronic fatigue syndrome, or other disability manifested by fatigue, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served in the Army National Guard from May 1965 to May 1973, with a period of active duty for training from April 1967 to August 1967, in the Air Force Reserve from March 1981 to November 1984, and on active duty in the Air Force from July 1987 to July 2000. See DD Forms 214; Personnel records at p.8 of 15; p.97 and 101 of 117; see also Form 21-526, August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. See Notice of disagreement, July 2003. A May 2004 rating decision continued the denial of the claim, and the Veteran expressed continued disagreement. In September 2016 and May 2017, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is now returned to the Board for further appellate review. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran is not shown to have chronic fatigue syndrome for VA rating purposes; he is not shown to have any another distinct disability manifested by symptoms of fatigue; and his symptoms of fatigue are not shown to be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness attributable to service in the Persian Gulf. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome or another disability manifested by fatigue, to include as due to an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317, 4.88a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In September 2016, the Board remanded the Veteran's claim to obtain a new VA examination to clarify whether the Veteran's symptoms of fatigue constituted a manifestation of a disability separate and distinct from his already service-connected fibromyalgia. Subsequently, the December 2016 VA examination was obtained. In May 2017, the Board remanded the claim to obtain an addendum opinion from the same VA examiner, which was provided in June 2017. The Board finds that the December 2016 VA examination report, together with the June 2017 VA medical opinion, answers all of the questions posed by the Board and includes adequate reasoning for the opinions provided. Therefore, the Board finds there was substantial compliance with the Board's remand directives. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection, the evidence generally must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 38 C.F.R. § 3.317(a) provides that VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that becomes manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021. A "qualifying chronic disability" is defined as: (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, as follows: (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; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, (2) the exclusion, by history, physical examinations, and laboratory tests of all other clinical conditions that may produce similar symptoms, and (3) six or more of the following 10 criteria: i) Acute onset of the condition; ii) Low grade fever; iii) Nonexudative pharyngitis; iv) Palpable or tender cervical or axillary lymph nodes; v) Generalized muscle aches or weakness; vi) Fatigue lasting 24 hours or longer after exercise; vii) Headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state); viii) Migratory joint pains; ix) Neuropsychologic symptoms; x) Sleep disturbance. See 38 C.F.R. § 4.88a (2017). The Veteran served in the Army National Guard from May 1965 to May 1973, with a period of active duty for training from April 1967 to August 1967, in the Air Force Reserve from March 1981 to November 1984, and on active duty in the Air Force from July 1987 to July 2000. See DD Forms 214; Personnel records at p.8 of 15; p.97 and 101 of 117; see also Form 21-526, August 2000. He served as a Catholic chaplain and attained the rank of captain. He claims that he has chronic fatigue syndrome, or another disability manifested by fatigue due to his active service, to include an undiagnosed illness based on service in the Persian Gulf. See, e.g., Statements, August 2000 and July 2004; Notice of disagreement, July 2003; Private treatment records, Dr. J.J., at p.13 of 24. As an initial matter, the Board acknowledges that the Veteran's DD Form 214 and medical records show that he served in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran's service treatment records do not show any complaints of fatigue. His September 1999 post-deployment health assessment questionnaire (Al-Jabor, Kuwait) shows no complaints. See STRs at p.16 of 115. His February 2000 report of medical assessment is also silent as to any complaints of fatigue. See STRs at p.103 of 112. Post-service, an October 2002 VA treatment record shows the Veteran reported experiencing fatigue, memory loss, aches and pains in his joints, muscle twitching, and occasional tingling in his extremities, particularly his fingers, since he served in the Persian Gulf. See VA treatment records, received June 2003 at p.14 of 19. A history of a myocardial infarction in March 2002 was noted, with insertion of four stents in September 2002, and that he was prescribed Atenolol. The physician also noted that the Veteran had a history of depression and PTSD, and was prescribed Effexor. His history of having an Anthrax vaccine, as well as chemical exposures, in the Persian Gulf were noted. The physician noted a diagnosis of fatigue/muscle tremors/twitching, and that the Veteran was speaking with a representative about filing a claim for compensation with VA and that "these have been identified as symptoms which occur frequently in Persian Gulf veterans . . . but there is no known etiology." Meanwhile, the Veteran's private treatment records from Dr. J.J. show complaints of fatigue and tiredness beginning in March 2002. See, e.g., SSA records at p.18 and 19 of 92. March 2002 and August 2002 records indicate Dr. J.J. attributed the symptoms to the Veteran's Altace medication, which was reduced. See, e.g., SSA Records at p.19 and 26 of 92. An April 2003 record from Dr. J.J. shows his fatigue improved after reducing his Altace and his blood pressure going up, albeit chronic fatigue was diagnosed. See SSA records at p.19 of 92. An October 2003 record by Dr. J.J. shows the Veteran reported his nitroglycerin medication makes him tired. See Private treatment records, received December 2005 at p.13 of 24. A February 2004 record shows "takes Nitroglycerin, which helps him but makes him fatigued." A plan was noted to start Imdur, and if it made him more tired or his blood pressure drop, it would be taken away. See Private treatment records, received December 2005 at p.17 of 24. A January 2005 record again shows it was noted that the Veteran's nitrolglycerin makes him tired easily because his blood pressure runs low. See Private treatment records, received December 2005 at p.5 of 24. A January 2006 VA treatment record shows the Veteran reported chest pain and fatigue with activity, and it was noted that there was a question as to whether this was all related to his cardiac condition and, therefore, his Imdur prescription was increased. A diagnosis of coronary artery disease with frequent chest pain with exertion and fatigue was recorded, and that his Imdur would be increased to see if it made any difference. See CAPRI at p.87 of 163. A March 2007 VA treatment record indicates the Altace medication was discontinued. See CAPRI at p.78 of 163. The VA treatment records also show the Veteran has been prescribed Atenolol since 2002. See, e.g., April 2002 and March 2013 at p.9 and 119 of 163. The Board also notes by way of background that an April 2004 VA examination report shows the VA examiner diagnosed fibromyalgia, for which the Veteran is presently service connected. The Veteran was afforded a December 2000 VA examination. The Veteran reported aching joints, muscle pain, and a burning and twitching sensation in his muscles and joints, which he reported was helped a lot by taking glucosamine. The Veteran reported using a treadmill for exercise for three to five miles per day, four to five times a week. It was noted that he continued to work as a Catholic priest. The examiner diagnosed fatigue, but opined that the Veteran does not meet the VA criteria for a chronic fatigue syndrome diagnosis because it does not impair his ability below 50 percent. The examiner further noted that anthrax shots are not proven to cause fatigue. The Board acknowledges that the December 2000 VA examiner did not, however, otherwise opine as to whether the Veteran had an undiagnosed illness due to his Persian Gulf service, or otherwise another disability manifested by fatigue that is separate and distinct from his service-connected coronary artery disease and PTSD. The Board also acknowledges that after the December 2000 VA examination was performed, the Veteran reported he stopped working in July 2002. See Form 21-8940, October 2005. A December 2016 VA examination report, with a June 2017 addendum, shows the examiner noted the Veteran had diagnosed fibromyalgia, with muscle aches, but that he did not have six of the 10 symptoms required for a diagnosis of chronic fatigue syndrome for VA rating purposes. In her June 2017 addendum opinion, the examiner acknowledged the Veteran's complaints of fatigue, but noted that the December 2016 VA examination relating to his heart disease showed that fatigue was a symptom of his arteriosclerotic heart disease. The examiner explained that arteriosclerotic heart disease causes less oxygen to flow through the arteries due to the blockages caused by the condition, which results in inadequate delivery of oxygen-rich blood to the body's tissues, causing fatigue. The examiner also noted that the Veteran was prescribed Lisinopril and Atenolol for his cardiac disease, and that both drugs cause drowsiness (but not "fatigue"). She noted that Lisinopril works by inhibiting a chemical process in your body that increases the amount of salt and water in your body, and having less salt and water in your body decreases your blood volume, which reduces your blood pressure, causing the drowsiness. She noted that Atenolol works by slowing down the heart and reducing its workload, thus lowering the blood pressure and causing drowsiness. The examiner further noted that the Veteran's December 2016 VA examination relating to his service-connected PTSD shows he experiences sleep impairment due to his PTSD, and noted that literature supports an association of sleep disturbance and PTSD, and that chronic sleep disturbance will cause daily fatigue. The Board also acknowledges that April 2004 and August 2010 VA examinations were performed. The April 2004 VA examiner opined that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome, but did not provide any rationale for the opinion. The August 2010 VA examiner opined it is less likely than not that the Veteran's fatigue was due to an undiagnosed illness relating to his Persian Gulf service, and that the diagnostic criteria were not met for chronic fatigue syndrome. For reasons explained in the September 2016 Board remand, however, the Board found that the August 2010 VA examination was also inadequate, and a new VA examination was required. In light of the above evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran meets the regulatory criteria for a chronic fatigue syndrome diagnosis under 38 C.F.R. § 4.88a. Other clinical conditions have been shown to produce similar symptoms, namely, his service-connected coronary artery disease and PTSD, whereas 38 C.F.R. § 4.88a requires that other clinical conditions producing similar symptoms be excluded. The Board finds the June 2017 VA medical opinion to be the most probative evidence of record in this regard, as it is supported by a detailed rationale, and it is supported by the medical evidence of record. The Board acknowledges that a December 2007 VA examination report relating to the Veteran's PTSD shows "chronic fatigue syndrome" was noted as an Axis III diagnosis. The Board, however, finds that the probative value of this diagnosis is significantly outweighed by the December 2016 VA examination with the June 2017 addendum, as the notation in the December 2007 PTSD examination report appears to be by the Veteran's own report, and regardless, is not supported by any rationale for the opinion. The Board does note, however, that the VA examiner also noted in the report that the veteran experienced nightmares due to his PTSD, that he was experiencing sleep deprivation, and that his sleep is markedly disrupted by nightmares and other stressors. Furthermore, in light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran has a disability manifested by symptoms of fatigue, to include an undiagnosed illness, that is distinct from his already service-connected coronary artery disease and PTSD. As shown above, the June 2017 VA examiner opined the Veteran's coronary artery disease symptoms include fatigue. She further opined that the Veteran's PTSD includes symptoms of sleep impairment that involves related fatigue. Thus, the Veteran's fatigue is shown to be attributable to a diagnosed illness, his coronary artery disease and PTSD, and does not constitute an "undiagnosed" illness or medically unexplained chronic multisystem illness. Thus, no qualifying chronic disability has been shown for purposes of service connection based on the Persian Gulf veteran provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Board finds the June 2017 VA examiner's opinion to be the most probative in this regard, as it includes a detailed rationale. The Board adds that the Veteran's service-connected coronary artery disease is presently assigned a 30 percent rating under Diagnostic Code 7005, which rating criteria specifically contemplate "fatigue" ("workload of greater than five METS but not greater than seven METs results in dyspnea, fatigue. . ."). In summary, the Board concludes that service connection for chronic fatigue syndrome or other disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness, is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic fatigue syndrome or other disability manifested by fatigue, to include as due to an undiagnosed illness, is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs