Citation Nr: 21000534 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-20 581 DATE: January 5, 2021 THE ISSUES 1. Entitlement to service connection for chronic bronchitis. 2. Entitlement to service connection for chronic fatigue syndrome (CFS). ORDER Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has chronic bronchitis at any time during the pendency of the appeal, and the Veteran’s symptoms of acute bronchitis have not been shown to result in functional impairment of earning capacity. 2. The Veteran does not have a current diagnosis of chronic fatigue syndrome. The Veteran's symptoms were attributed to a known clinical diagnoses of sleep apnea, musculoskeletal, and psychiatric disabilities, and the evidence does not reflect that he had fatigue due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness associated with Gulf War exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic bronchitis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to May 1992, from May 1993 to June 1996, February 2006 to February 2008, August 2008 to September 2008 and from February 2009 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in Detroit, Michigan. A transcript of the hearing is of record. These matters were last before the Board in November 2019 at which time they were remanded in order to obtain any potentially outstanding, ongoing treatment records for the claimed disabilities, and to afford the Veteran additional VA examinations and opinions for his claimed disabilities. Upon remand, VA sent notice to the Veteran to identify any outstanding and pertinent treatment records, however the Veteran did not respond. Additionally, as discussed further below, the Veteran was afforded new VA examinations for his claimed disabilities in February 2020. Therefore, the Board finds that its remand directives have been substantially complied with, and the matters are once again properly before it. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In addition, service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from 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 21, 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 qualifying chronic disability, 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. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3), 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), (c). As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature. "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). Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi-symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4), which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multi-symptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for chronic bronchitis is denied. The Veteran seeks service connection for chronic fatigue syndrome; however, the evidence of record does not warrant a finding of service connection. The Veteran’s service treatment records (STRs) contain complaints of bronchitis in service. The Veteran was afforded a VA examination for his claimed bronchitis disability in September 2016. The VA examiner noted a history of bronchitis in the Veteran’s service treatment records in June 2006, but noted that the Veteran’s bronchitis had resolved. The VA examiner stated: “although there is a record of bronchitis under the problem list there is no chronic disability or permanent residual subject to [service connection] [as] shown by the SMRs.” However, at the July 2019 Board hearing, the Veteran and his wife testified that he had been suffering symptoms of and receiving ongoing treatment for both bronchitis and his fatigue since active duty service. The Veteran’s and his wife indicated that he had been receiving treatment for fatigue and bronchitis during active duty up until the date of the Board hearing. See July 2019 Board hearing. In November 2019, the Board remanded the matter to obtain any pertinent and outstanding ongoing treatment records. The Veteran was asked to identify any ongoing treatment records in December 2019, but failed to respond. Additionally, the Board remanded the matter in order to afford the Veteran a new VA examination and opinion which addressed the Veteran’s complaints of bronchitis in service and symptoms of bronchitis after service. The Veteran was afforded such a VA examination in February 2020. While acknowledging the Veterans complaints and contention of ongoing treatment for bronchitis since service, the examiner found, however, that the Veteran does not have chronic bronchitis. According to the examiner, chronic bronchitis is defined as a chronic productive cough for three months in each of two successive years in a patient. After review of the evidence and interview of the Veteran, the examiner found that the criteria for a diagnosis of chronic bronchitis are not met. The examiner reasoned that the Veteran’s episodes of bronchitis in service and after separation were acute and that each episode, akin to a cold, had fully resolved. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran's statements, to include his assertions that he has chronic bronchitis related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., coughing, shortness of breath; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Given the above, the Board finds the preponderance of evidence is against the claim as the evidence does not show that the Veteran has a current diagnosis of chronic bronchitis which is the cornerstone of a service connection claim. While the Veteran had bronchitis during service and has had occasional episodes of acute bronchitis after service, he does not have chronic bronchitis. The Board recognizes that the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, here, the VA examiners did not endorse any functional impairment pertaining to his acute episodes of bronchitis. The Veteran has not argued with any specificity that his acute episodes of bronchitis result in such impairment. In sum, there exists no basis for finding that a threshold of functional impairment of earning capacity has been met. Absent such evidence, there can be no finding of a disability. See Saunders, cited above. Thus, the claim fails on that basis. Accordingly, the Veteran’s claim for service connection for chronic bronchitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. The Veteran seeks service connection for chronic fatigue syndrome; however, the evidence of record does not warrant a finding of service connection. The Veteran's STRs are silent for complaints, treatment, or a diagnosis for CFS. However, the Board notes that there are complaints of “fatigue” while in service. The Veteran was afforded a VA examination for his claimed CFS in September 2016. The Veteran reported that he had “been feeling tired all the time for a while… approximately 2005 [or] 2006.” The VA examiner found that the “Veteran’s history and physical examination [were] not suggestive of chronic fatigue syndrome.” However, at the July 2019 Board hearing, the Veteran and his wife testified that he had been suffering symptoms of and receiving ongoing treatment for his fatigue since active duty service. The Veteran’s and his wife indicated that he had been receiving treatment for fatigue during active duty up until the date of the Board hearing. See July 2019 Board hearing. In November 2019, the Board remanded the matter to obtain any pertinent and outstanding ongoing treatment records. The Veteran was asked to identify any ongoing treatment records in December 2019, but failed to respond. Additionally, the Board remanded the matter in order to afford the Veteran a new VA examination and opinion which addressed the Veteran’s complaints of fatigue in service and symptoms of fatigue after service. The Veteran was afforded such a VA examination in February 2020. While acknowledging the Veterans complaints and contention of ongoing treatment for fatigue since service, the examiner found, however, that the Veteran did not currently have, nor had he ever had, a diagnosis of CFS. Instead, the examiner noted that the Veteran’s fatigue is a symptom of his service-connected psychiatric and musculoskeletal disabilities, as well as his non-service-connected sleep apnea which, the Board notes, was denied in an unappealed November 2018 rating decision. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran's statements, to include his assertions that he has chronic CFS related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., tiredness, fatigue; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Given the above, the Board finds the preponderance of evidence is against the claim as the evidence does not show that the Veteran has a current diagnosis of CFS which is the cornerstone of a service connection claim. Thus, the claim fails on that basis. The Board has also considered whether service connection is warranted based on the theory of undiagnosed illness. Here, the Veteran's symptoms of fatigue have been attributed to service-connected psychiatric and musculoskeletal disabilities, as well as his non-service-connected sleep apnea. See February 2020 VA Examination. Therefore, this theory of entitlement does not apply. Accordingly, the Veteran's claim for service connection for chronic fatigue syndrome must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel 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.