Citation Nr: 21063488 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-32 112 DATE: October 14, 2021 ORDER Entitlement to service connection for sleep apnea, to include as due to Gulf War exposures, is granted. Entitlement to service connection for chronic fatigue syndrome, to include as due to Gulf War exposures, is denied. REMANDED Entitlement to service connection for joint pain, to include as due to Gulf War exposures, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence demonstrates that the Veteran developed sleep apnea while in military service. 2. The competent evidence of record does not reflect that the Veteran has a current diagnosis of chronic fatigue syndrome, let alone one related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to September 1986, from November 1998 to December 1998, and from November 2002 to December 2002. This matter comes before the Board of Veterans' Appeals on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in October 2019, when it was remanded for further development. In the October 2019 decision, the Board denied entitlement to service connection for a skin disorder and headaches. As such, those issues are no longer before the Board. Service Connection Service connection will 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 service connection, the evidence generally must show: (1) the existence of 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). In addition, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability 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 31, 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 undiagnosed illness, 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. Id. A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. The term Persian Gulf Veteran means a veteran who served on active duty during the Persian Gulf War in the Southwest Asia theater of operations, which refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(1)(2). The Persian Gulf War is defined as the period beginning on August 2, 1990 and ending on the date thereafter prescribed by law. 38 U.S.C. § 101(33). Here, the Veteran's service personnel records verify he had service in the Persian Gulf from November 1998 to December 1998 (Qatar), and from November 2002 to December 2002 (Kuwait) and therefore, the presumption contained in 38 C.F.R. § 3.317 is applicable. 1. Entitlement to service connection for sleep apnea, to include as due Gulf War exposures. In June 2013, the Veteran submitted a claim for a sleep disorder as due to exposures to hazardous materials in the Southwest Asia. The Veteran asserts that his sleep issues are related to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317, as noted above. As an initial matter, the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.317. Although it is conceded that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, the medical evidence of record does not show that the Veteran's sleep disorder cannot be attributed to any known clinical diagnosis. The Veteran had a sleep study conducted several months after discharge from service in July 2003 and was clinically diagnosed with obstructive sleep apnea in September 2003, which also firmly rules out the possibility of it being a symptom of an undiagnosed illness. Additionally, as the medical evidence of record indicates that sleep apnea has a definite etiology, there is no indication that such would qualify as part of a medically unexplained chronic multi-symptom illness. Therefore, service connection for a sleep disorder on this presumptive basis is not warranted. The Board has considered whether the Veteran is entitled to service connection on a direct incurrence basis. As noted above, the Veteran has been provided with a diagnosis of obstructive sleep apnea. Thus, there is evidence of a current disability. As to the in-service component, the Veteran asserts that his exposures to various chemical and environmental irritants while serving in Southwest Asia caused his sleep apnea. The Veteran's service personnel records confirm that he served in the Southwest Asia theater of operations during the Persian Gulf War, and, considering the places and circumstances of his service, the Board concedes such environmental exposures. In addition, during an April 2014 VA examination, the Veteran reported he began falling asleep a lot during the day and having breathing problems starting in 2001. As to nexus, the Veteran reported symptoms of sleep apnea and disturbances with sleep within one year of separation from service in July 2003. As such, the Board finds that the Veteran's obstructive sleep apnea at least as likely as not began during service. The Board acknowledges the negative VA opinion provided in January 2020. However, the Board assigns little probative weight to this opinion as the Veteran's lay statements and other periods of active service noted above were not considered. In addition, the fact that the Veteran complained about sleep issues within months after discharge from service, and sleep apnea was diagnosed within less a year after discharge from service, weighs in support of a finding of service connection. Although sleep apnea is not a disability for which presumptive service connection can be granted, the proximity of the diagnosis to when the Veteran was released from service, combined with lay statements reflecting symptoms in service, supports the Board's conclusion that his sleep apnea began in service. Accordingly, the Board finds that the nexus element of service connection has been satisfied. In sum, the evidence shows that the Veteran currently has obstructive sleep apnea, that his symptoms of obstructive sleep apnea likely began during service, and that these symptoms were diagnosed as obstructive sleep apnea within less than a year of service discharge. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for obstructive sleep apnea, as directly incurred in service, have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to Gulf War exposures. The Veteran asserts that he has a medically unexplained chronic multi-symptom illness (MUCMI) manifested as chronic fatigue syndrome. A MUCMI is defined in 38 C.F.R. § 3.317 and requires a diagnosis. The question for the Board is whether the Veteran has a current diagnosis of chronic fatigue syndrome that began during service or is at least as likely as not related to service. The Board concludes that the preponderance of the evidence is against finding that the Veteran currently suffers from chronic fatigue syndrome related to his active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The evidence of record does not show the Veteran has a current assessment of chronic fatigue syndrome. The Veteran's service treatment records note that he received a series of five anthrax vaccinations from September 1998 to October 1999 and experienced side effects, which included fatigue and body/muscle aches. The January 2020 examiner indicated that the medical record shows these were acute and transient side effects of the anthrax vaccinations. For instance, the Veteran was evaluated in October 1999, after his fifth (and what appears to be final injection), and it was found that his symptoms were an acute allergic reaction to the anthrax vaccination. Medical records from May 2000 also note the Veteran's reported symptoms, including fatigue, as a reaction to the anthrax injection and were noted to have resolved within a 4-6 week period. During the May 2000 evaluation, the Veteran was also evaluated for collagen vascular disease, thyroid function, inflammatory arthritis, and the results noted as unremarkable. In addition, the May 2000 medical record noted the Veteran was cleared to safely receive a sixth anthrax injection. None of the medical evaluations conducted in relation to his anthrax injection side effects noted any sort of chronicity in relation to his reported fatigue or a diagnosis of chronic fatigue syndrome. As such, the January 2020 examiner concluded that the record does not show any evidence of a diagnosis or any evidence warranting a diagnosis of chronic fatigue syndrome. The Board acknowledges the Veteran's statements regarding his symptoms of fatigue. However, the only evidence in support of the Veteran's contention that he has a chronic fatigue syndrome disability that is related to his active service comes from the Veteran himself. While the Veteran is competent to report his symptoms and experiences in service, determining the existence and etiology of chronic fatigue syndrome is complex and requires medical knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The assessment of chronic fatigue syndrome requires specific diagnostic findings. As such, the Veteran's contentions cannot be considered competent evidence in support of his claim. As the Veteran does not meet the cornerstone element of service connection by showing a current assessment of chronic fatigue syndrome, an analysis of the remaining elements of service connection is not necessary. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In sum, the competent evidence does not support a current assessment of chronic fatigue syndrome. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. REASONS FOR REMAND Entitlement to service connect for joint pain, to include as due to Gulf War exposures. In this case, the Veteran asserts that his joint pain symptoms began in service and are due to the environmental hazards he was exposed to while serving in Southwest Asia. A VA medical opinion was provided in January 2020. However, the Board finds that a remand is necessary in order to obtain clarification as the examiner stated that the Veteran's "joint pain were attributable to musculoskeletal incidents." The examiner did not provide any additional supporting facts or rationale based on the Veteran's case file, specific conditions, and medical principles. In addition, the examiner did not address whether any symptoms or conditions represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI under 38 C.F.R. § 3.317. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). Accordingly, the Board finds that a remand is warranted for a new VA medical opinion and examination (if found necessary). This matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate examiner, and if found necessary, schedule the Veteran for a VA examination regarding his service connection claim for joint pain. (a) The examiner must specifically address whether the claimed joint pain is attributable to a known clinical diagnosis. If the symptoms are attributable to a known clinical diagnosis, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran's reported symptoms have been attributed with emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of his unique circumstances. If any of the claimed symptoms are attributable to a known clinical diagnosis with both an etiology and pathophysiology that are at least partially understood in the context of the Veteran's unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service, to include exposure to environmental hazards while deployed in Southwest Asia. If no known clinical diagnosis is made, the examiner must separately assess whether the joint pain symptoms are chronic in nature, considering both lay and medical findings. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.