Citation Nr: 20031069 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 19-20 061 DATE: May 4, 2020 ORDER Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected Crohn’s disease, is denied. FINDINGS OF FACT 1. The probative evidence of record does not establish a diagnosis of chronic fatigue syndrome. 2. The Veteran’s symptom of fatigue is already contemplated in his rating for Crohn’s disease. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome, to include as secondary to service-connected Crohn’s disease, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1989 to April 1992. The Veteran’s claim was most recently before the Board in September 2019 wherein it was remanded for additional development. This development has been completed and the claim had returned to the Board. In January 2020, the Veteran’s claims for an increased rating for PTSD and entitlement to a total disability rating based upon unemployability (TDIU) were remanded for additional development. This development has not yet been completed. Entitlement to service connection for fatigue, as secondary to service-connected Crohn’s disease The Veteran contends that he has chronic fatigue that was incurred in or caused by service, to include exposure to service in Southwest Asia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to direct service connection, service connection may be established on a secondary basis for a disability which is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran underwent VA examinations for Gulf War Illness and chronic fatigue syndrome in November 2017. The VA examiner opined that the Veteran does not meet the criteria for a diagnosis chronic fatigue syndrome but conceded that the Veteran has not undergone any formal evaluation for chronic fatigue syndrome. He also concluded that the Veteran’s symptoms could all be attributed to his Crohn’s disease or the treatment there for but did not provide an adequate rationale. The examiner stated that all of the Veteran’s symptoms related to fatigue may be attributable to his Crohn’s disease along with side effects of Remicade treatment which he had been receiving. The Board found this opinion to be insufficient and the Veteran’s claim was remanded to obtain additional examinations. In February 2020, the Veteran attended additional VA examinations for chronic fatigue syndrome and obstructive sleep apnea, to determine whether the Veteran’s fatigue was related to Gulf War Illness. On the Veteran’s chronic fatigue syndrome examination, the Veteran reported a history of fatigue and that he does not feel refreshed. The clinician stated that the Veteran does not have a diagnosis of chronic fatigue syndrome; rather, his signs and symptoms of fatigue are due to Crohn’s disease. The Veteran’s representative argues that this constitutes positive evidence sufficient to grant the claim, because the opinion was unsolicited and because it recognizes that the Veteran in fact has “signs and symptoms of an undiagnosed illness.” However, the Board finds that this is a mischaracterization of the opinion. First, it does not matter if the opinion was not asked for. The Board is tasked with reviewing all pertinent evidence, and the opinion certainly counts as pertinent to the inherently medical question of the etiology of the Veteran’s fatigue symptoms. Secondly, there is affirmative evidence that the Veteran’s fatigue symptoms are not sufficient to rise ot the level of a diagnosis of chronic fatigue syndrome; rather they are due to his Crohn’s disease. The clinician made two references to studies that showed an increased risk of chronic fatigue related to Crohn’s disease and stated that the Veteran’s fatigue is related to Crohn’s disease. Thus, the symptoms are attributable to a known diagnosis, which significantly, the Veteran is already compensated for. The Board gives the VA clinician’s opinion great probative weight because it is based on a review of the Veteran’s medical records and cited medical research to support her opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran’s represented has argued that service-connected for fatigue should be granted as secondary to the Veteran’s service-connected Crohn’s disease, this argument fails. Notably, as discussed in the January 2020 Board decision which adjudicated the Veteran’s then-pending appeal for a rating in excess of 30 percent for Crohn’s disease, the Board found that one of the Veteran’s symptoms of Crohn’s disease was fatigue. Thus, that symptom is considered in the Veteran’s rating for that service-connected disability. To provide a second rating for the same symptom is prohibited by the rule against pyramiding (i.e., rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14; Lyles v. Shulkin, 29 Vet. App. 107 (2017). As the Veteran’s fatigue has been related to his Chron’s disease, for which is already has a service-connected rating that contemplates it, and as the medical evidence does not confirm a separately diagnosable disability to otherwise account for the Veteran’s fatigue, service connection is not warranted. Another examination revealed a diagnosis of obstructive sleep apnea which is supported by the Veteran’s VA medical records. However, the Board declines to recharacterize the Veteran’s claim of fatigue to include obstructive sleep apnea because fatigue and obstructive sleep apnea have separate diagnostic characteristics and separate rating criteria. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Should the Veteran desire to file a separate claim for service connection for obstructive sleep apnea, he is welcome to do so. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.