Citation Nr: 21061391 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 11-03 461 DATE: October 1, 2021 ORDER Entitlement to service connection for a fatigue disorder, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI), is denied. FINDING OF FACT The Veteran does not have chronic fatigue syndrome, an undiagnosed illness or MUCMI manifested by fatigue, or other diagnosis of a fatigue disability; instead, his fatigue is a symptom of diagnosed conditions, to include his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for a fatigue disorder, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard/Reserves for several years, with a period of active duty service from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision. In an August 2017 decision, the Board denied service connection, in part, for fatigue. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court issued an order granting the parties' Joint Motion for Partial Remand (Joint Motion) to vacate the Board's August 2017 decision on this claim and remanded the case to the Board. The Board remanded the issue in April 2019 and April 2021 for additional medical opinions. The Board finds there has been substantial compliance with the April 2021 remand and further remand is unnecessary. The Veteran seeks service connection for fatigue. He contends that his fatigue began in service, is otherwise related to his service in the Persian Gulf War, or is secondary to his service-connected PTSD. His records show he served on active duty in Operation Desert Shield/Storm from January 1991 through March 1991; accordingly, 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 apply. Under these sections, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For a disability due to undiagnosed illness or MUCMI, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from the following: (1) an undiagnosed illness; (2) an MUCMI such as chronic fatigue syndrome (CFS). See 38 C.F.R. § 3.317(a)(2). An MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See id. The Veteran's service records are associated with the claims file and are negative for diagnoses of chronic fatigue syndrome or other fatigue disorder. His March 1991 re-deployment and August 1994 retention examinations were normal, and, on his reports of medical history, he denied frequent trouble sleeping and did not report fatigue. As the Veteran documented other symptoms and conditions on these reports of medical history, it is reasonable to assume he also would have documented fatigue if he experienced such previously or at that time. In April 1994, February 1995, November 1995, April 1997, and April 1998 annual medical certificates, the Veteran reported present conditions, none of which were fatigue related. On the corresponding initial medical review for his November 1995 certificate, he stated that he had had respiratory problems since the Southwest Asia conflict, but he did not report fatigue or relevant problems. In May 1998, his private physician wrote a letter stated that the Veteran had moderately severe asthma and gastroesophageal reflux disease. There was no mention of fatigue or related diagnosis. His June 1996 periodic examination was normal, and on his report of medical history, he denied frequent trouble sleeping and, despite reporting a history of other symptoms, did not report fatigue. The Veteran's VA records are associated with the claims file. When he presented to VA at his first visit in February 1999, he complained of asthma symptoms that began in service, but he did not report fatigue. His VA treatment records through October 2019 show some complaints of difficulty sleeping related to his PTSD, but no chronic fatigue complaints or a CFS diagnosis. He also denied fatigue as recently as October 2018. The Veteran underwent several VA examinations during the appeal period. After an examination and review of the claims file in September 2010, the VA examiner opined that the Veteran did not meet the diagnostic criteria for CFS. The examiner further reported that the Veteran's fatigue could be explained by the diagnosis of sleep apnea (by subjective history only). The Veteran was afforded a second VA examination in February 2013. The examiner opined that fatigue "is a common symptom" and the Veteran's fatigue "most likely results from several diagnoses (IBS related sleep disturbances and hypothyroidism) and several not yet diagnosed medical condition (possible stress/depression and/or sleep apnea." The examiner further noted that the Veteran did not meet the diagnostic criteria for, and has not been diagnosed with, CFS. An additional VA medical opinion was obtained in January 2020, but the Board finds that this opinion is inadequate in light of the Veteran's service-connected PTSD. Thus, the Board did not rely on that opinion when forming its decision. In October 2020, VA obtained a CFS examination. In Section I of the examination report, the examiner documented the Veteran currently has CFS and it was diagnosed in 1991. In the accompanying medical opinion, however, the examiner opined that the Veteran's fatigue was caused by his hypothyroidism. VA requested clarification in light of the CFS diagnosis which was issued in January 2021. While the examiner's addendum opinion suggests that the Veteran would only have a diagnosis of CFS with proof that his sleep apnea and hypothyroidism were controlled, he wrote in Section II that the Veteran "developed insidious onset of fatigue in 1991," "he continued to have this problem after separation from service," and his thyroidism and sleep apnea are regulated but he "continues to have underlying fatigue." Thus, in its April 2021 remand, the Board found the clarification inadequate and remanded for a new medical opinion. Per the April 2021 remand, new VA medical opinions were obtained in July 2021. After a thorough review of the claims file including the Veteran's statements regarding onset in service, the VA examiner concluded that it was less likely than not that the Veteran's fatigue is a manifestation of an undiagnosed illness and that the Veteran does not have CFS. She noted that the medical records do not contain any rheumatology and/or neurology consultation with a diagnostic work up for CFS ruling out autoimmune and/or neurologic disorders. She considered the October 2020 diagnosis but stated that "a diagnosis of CFS cannot be rendered in one single medical exam as it is a diagnosis of exclusion and an extensive diagnostic work up is warranted." She further stated that the Veteran's fatigue can be explained by several of his co-morbidities, such as hypothyroidism and self-reported sleep apnea diagnosis following a 2019 sleep study, and such a symptom does not constitute CFS. Finally, she concluded that the evidence does not support a separate fatigue disorder, to include CFS, caused or aggravated by PTSD. Instead, she noted that fatigue can be a symptom of PTSD and reiterated that his fatigue can also be caused by his other multiple co-morbidities. The Board finds that the medical opinion is probative because the examiner considered the relevant medical records and lay statements, provided a rationale for the opinion and alternative etiologies for the Veteran's claimed fatigue. After consideration of the evidence, the Board finds that the Veteran is not entitled to service connection under the Persian Gulf War provisions because he does not have a qualifying chronic disability. The weight of the competent evidence does not show a persuasive diagnosis of CFS nor another MUCMI or undiagnosed illness manifested by fatigue. Instead, it shows the Veteran's fatigue is a symptom of diagnosed conditions with understood pathophysiologies and etiologies, like his PTSD, hypothyroidism, and self-reported sleep apnea diagnosis. The Veteran has not submitted evidence of a diagnosis and, considering the complex nature of a CFS diagnosis, as a layperson, the Veteran is not competent to render such a diagnosis. For this same reason, service connection on a direct or secondary basis is not warranted. His fatigue is a symptom caused by multiple diagnoses, not a distinct condition for which service connection can be granted. To the extent the Veteran's service-connected PTSD causes fatigue, it is contemplated by the rating criteria and his 30 percent disability rating. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (30 percent rating warranted for sleep impairment). The Board considered the October 2020 diagnosis but finds that it is outweighed by the Veteran's medical records, which are negative for diagnostic testing and diagnosis of chronic fatigue syndrome, and the VA medical opinions. Furthermore, the October 2020 medical opinion and January 2021 clarification indicate the Veteran did not have a chronic fatigue syndrome diagnosis. Thus, the Board did not afford much probative value to this opinion and finds that it is outweighed by the other, competent and more persuasive evidence. The Board also considered the Veteran's statements that his fatigue began in service. Regardless of when his symptoms began, service connection is not warranted because his fatigue is a symptom of his service-connected PTSD, the rating for which contemplates sleep impairment, and nonservice-connected conditions. The evidence does not show that he has a fatigue condition distinct from his multiple fatigue-causing conditions, undiagnosed illness manifested by fatigue, or MUCMI like CFS which began in service and for which service connection can be granted. The Board additionally considered Saunders v. Wilkie but finds that the case is not applicable here, where the Veteran's fatigue is attributable to several diagnoses including his service-connected PTSD, the rating for which contemplates the functional impairment of earning capacity caused by his PTSD symptoms. See 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, service connection is not warranted for a fatigue disorder and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.