Citation Nr: 1809136 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 99-19 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for fatigue, to include as due to undiagnosed illness or as chronic fatigue syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) in the Army National Guard from August 1976 to November 1976. He had active duty in the Army from March 1981 to June 1984. He again had active duty in the Army from January 1991 to October 1991, including service in the Southwest Asia Theater from February to June 1991. He has also had additional periods of reserve service. This case comes to the Board of Veterans' Appeals (Board) on appeal from RO decisions dated in November 1998 that in pertinent part, denied service connection for fatigue, including as due to undiagnosed illness. This case has a lengthy procedural history and was previously before the Board and remanded for additional development on multiple occasions; the appeal was most recently in August 2017. FINDINGS OF FACT 1. The Veteran has not been diagnosed with chronic fatigue syndrome. 2. The Veteran has not had a disease, to include an undiagnosed illness or medically unexplained chronic multisymptom illness, manifested by fatigue during the appellate period. CONCLUSION OF LAW The criteria for service connection for fatigue, to include under the diagnosis of chronic fatigue syndrome, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran's representative has raised an issue with the duty to assist. In this regard, the representative argues a failure to comply with the Board's August 2017 remand directive. In August 2017, the Board requested a VA addendum opinion regarding the etiology of the Veteran's reported fatigue symptoms. An October 2017 VA addendum was obtained, in which the examiner indicated that the Veteran does not meet the criteria for chronic fatigue syndrome, does not have fatigue, and denies symptoms of fatigue. She also indicated that the Veteran has bronchial asthma. The Board has considered whether a seventh remand is necessary, and has determined it is not. Although, the VA examiner did not provide an opinion regarding the fatigue that the Veteran reported in the past, the record neither contains a diagnosis of chronic fatigue nor contains evidence that the Veteran's fatigue has been found to be part of a disease pathology, even if the pathology of that disease is not understood; that is, whether it is part of a disease process contemplated by 38 C.F.R. § 3.317. The symptom alone without a finding that it is a disability (such as an undiagnosed illness or medically unexplained chronic multisymptom illness) is not for service connection. Therefore, the Board finds that to remand the claim for another addendum opinion is not necessary as VA has made all reasonable efforts to assist in this appeal and that additional development would not lead to a benefit being provided to the Veteran. As the medical record, to include the VA examinations, have not found a chronic fatigue disability or a disability manifested by fatigue, a threshold requirement for substantiating the claim is not met, and developing for evidence to establish a nexus of such disability to service would be pointless. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159 (c)(4). Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for any disease initially diagnosed after service when 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, there must be competent evidence of (1) the current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). The Veteran generally contends that his fatigue is related to service, to include as an undiagnosed Gulf War illness. At the outset, the Board acknowledges that the Veteran is a Persian Gulf veteran based on his Southwest Asia service. See 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. §§ 3.317 (e)(1), 3.317(e)(2). Presumptive service connection is available to such veterans who demonstrate certain symptoms, to include joint pain and fatigue, which are not attributable to diagnosed illnesses. 38 C.F.R. § 3.317(b) (2017). However, the Board finds that the Veteran does not currently have and has never had any objective indications of an undiagnosed or medically unexplained chronic multisymptom illness manifested by chronic fatigue syndrome. See 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. §§ 3.317 (a)(1), 3.317(a)(2)(i), 3.317(a)(2)(ii), 3.317(a)(3), 3.317(b). Further, the Board finds that the Veteran is not and has never been diagnosed with chronic fatigue syndrome. As such, the Veteran has not met the criteria for either presumptive or direct service connection for these claims. See 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317; Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran's service medical records are silent for diagnoses or treatment of chronic fatigue, or fatigue generally. Post service treatment records reflect complaints and treatment of fatigue; however, these records do not indicate that the Veteran had any objective indications of an undiagnosed or medically unexplained chronic multisymptom illness. In this regard, a February 2001 private treatment record reflects that the Veteran was treated for fatigue since September 1997. VA medical records reflect that in May 1998, the Veteran complained of difficulty sleeping, restlessness, anxiety, anhedonia, and crying spells. An April 1999 VA treatment record reflects that the Veteran complained of chronic fatigue; the diagnostic impression was hyperactive airways. During a June 1998 VA examination, the Veteran reported that he had a hacking cough associated with tiredness, shortness of breath with frequent respiratory wheezes. Another June 1998 VA examination report notes the Veteran's report of bronchitis with dyspnea in 1992. The examiner indicated that there was no evidence of incapacitation or a history of dyspnea on efforts. In January 2012, the Veteran was afforded a VA Gulf War examination. The examiner conducted an in-person examination and also reviewed the Veteran's electronic medical records and claims records. The Veteran reported that he used to have fatigue and tiredness, but has not had these symptoms for the past 3 to 4 years. He further reported that he has not had these symptoms since his lifestyle change, which includes eating healthy, running 3 miles daily and swimming. He denied fatigue and tiredness upon physical activities. The examiner did not provide an opinion as the Veteran denied current symptoms of fatigue and tiredness, and stated that his lifestyle change caused the fatigue and tiredness that he previously experienced to disappear. A March 2013 VA examination report notes that there was no evidence of a chronic fatigue syndrome found at that evaluation. Similarly, an October 2017 VA examination report notes that the Veteran denies fatigue. The October 2017 VA examiner noted that the Veteran has bronchial asthma and does not have chronic fatigue syndrome. As the evidence does not reflect a diagnosis of chronic fatigue syndrome, presumptive service connection is not available in this case and service connection is not warranted. The Veteran has not been diagnosed with chronic fatigue syndrome or a disability manifested by fatigue at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Although the Veteran was treated for fatigue and tiredness at some point during the appeal period, the VA examiners determined that the Veteran has not been diagnosed with chronic fatigue syndrome at any time. As noted above, the Board has carefully and sympathetically considered the evidence of record but finds that the evidence weighs against a finding of a disability at any point in appellate period, to include when considering the special considerations outlined in 38 C.F.R. § 3.317. The Board's own review of the record supports this finding. For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: acute onset of the condition, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), migratory joint pains, neuropsychologic symptoms, sleep disturbance. See 38 C.F.R. § 4.88a (2017). The record, to include medical evidence and lay evidence does not show that the Veteran meets this requirement. The evidence weighs against a finding of chronic fatigue syndrome; in addition, as noted, there is not otherwise a competent diagnosis of a disability manifested by fatigue. Although the Board has carefully considered the Veteran's lay statements and he is competent to relay that he has felt tired, he is not competent to provide an opinion that this symptom is part of a disease process, to include a disease process contemplated by 38 C.F.R. § 3.317. In the absence of evidence speaking to a current disability, the claim may not succeed and the claim is denied. ORDER Service connection for fatigue, to include as due to undiagnosed illness or chronic fatigue syndrome, is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs