Citation Nr: 21067785 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 12-34 697 DATE: November 5, 2021 ORDER Service connection for headaches is granted. Service connection for fatigue as secondary to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of migraine headaches and has presented credible evidence of experiencing headaches since his military service. 2. The Veteran experiences fatigue which has been related to several of the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309. 2. The criteria for service connection for fatigue are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to August 2003, including service in Southwest Asia from August 1999 to December 1999. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for Gulf War illness. The Veteran disagreed with this decision and perfected this appeal. The Veteran's claim was then expanded to include symptoms of fatigue, headaches, hair loss, muscle problems, joint problems, digestive problems, and memory problems due to Gulf War illness pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a December 2017 decision, the Board, in pertinent part, denied service connection for fatigue, and headaches, and digestive problems. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court vacated the Board's decision with regard to the service connection claims for fatigue, headaches, and digestive problems and remanded the matters to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The remainder of the December 2017 Board decision was left undisturbed. Thereafter, in March 2019 and August 2020, the fatigue, headache, and digestive problems issues were remanded for further development. Notably, by rating decision dated in August 2021, the RO granted service connection for gastroesophageal reflux disease (GERD). As such, the issue concerning service connection for digestive problems is no longer for consideration. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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, including organic diseases of the nervous system such as migraine headaches, 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); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Service connection may also 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) (VA has issued an interim final rule extending this date to December 31, 2021). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for headaches is granted. The Veteran contends that a headache disorder is related to his military service, either on a direct basis or as secondary to his service-connected disabilities. Notably, the Veteran is service connected for the following disabilities: bilateral pes planus, posttraumatic stress disorder (PTSD), sleep apnea, neck strain, back strain, GERD, bilateral ankle strains, bilateral shin splints, and erectile dysfunction. Service treatment records show that the Veteran was treated for a headache in April 2003 associated with smallpox vaccine but there are no other records concerning headaches. The Veteran submitted a claim for service connection for Gulf War illness, later expanded to include headaches, in August 2009. In connection with this claim, he was afforded a VA Gulf War examination in November 2011. At that time, the Veteran reported that he had been experiencing morning headaches since 2003. Significantly, the November 2011 VA examiner noted that the Veteran's recurrent headaches were due to the Veteran's uncontrolled diabetes and that the Veteran's untreated diabetes affected his entire body. Pursuant to the October 2013 Board remand, the Veteran was afforded VA headache and Gulf War examinations in November 2016. Significantly, the November 2016 VA headache examination shows that the Veteran did not have, nor had he ever been diagnosed with a headache condition. The examiner also noted that no diagnosis was rendered as the Veteran was only able to provide subjective evidence of headaches and the evidence of record did not support any headache condition. Also, the November 2016 VA Gulf War examination shows that the Veteran had no diagnosed illnesses for which no etiology was established. Significantly, the November 2016 VA Gulf War examiner found that it was less likely as not that the headaches were a disability pattern or diagnosed disease that are related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale for this, the examiner noted that there was no pattern of illness that is unexplained and that the evidence of record does not support a headache condition. Pursuant to the March 2019 Board remand, the Veteran was afforded another VA headaches examination in October 2019. Significantly, the examiner diagnosed migraine headaches, noting an onset in 2000, and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that there were no notations in the medical record pertaining to headaches during the Veteran's time in service. The only notations related to headaches were made during two psychiatric notes from April 2017, in which he related that he was still having headaches after his car accident, and February 2018, in which he stated that he "always has headaches." A physical therapy note from September 2017 states that his headaches were 70 percent better after his course of physical therapy. While the Veteran's service treatment records reflect that the Veteran experienced a headache in April 2003, this was associated with a reaction to a smallpox vaccine, was a self-limited headache that would resolve in a few days, and was unlikely to result in a chronic headache syndrome or to result in a diagnosis of migraine. Migraine headaches are not caused by receiving smallpox vaccines, or any other vaccine, for that matter. Pursuant to the August 2020 Board remand, the Veteran was afforded yet another VA headaches examination in December 2020. Significantly, the examiner diagnosed migraine headaches. First, the examiner found that, as the Veteran had a diagnosis of migraine headaches, these headaches were less likely than not attributable to an undiagnosed illness, or to a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. Second, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that per his current clinical history of headache symptoms, the Veteran has migraine headaches. However, there is no indication of any diagnosis, complaint, or abnormal finding in the service treatment records pertaining to a migraine headache condition during active duty period. Nor could the examiner find any civilian treatment record for migraine headache or other type of headache based on current record review. As such, the examiner found that the current headache condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness include his in-service car accident. Upon review of the evidence, the Board finds that service connection for headaches is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of migraine headaches. The evidence also suggests a link between the Veteran's headaches and his military service. In this regard, the Veteran alleges that he began experiencing morning headaches in 2003 (during the Veteran's military service) which have continued to the present. The Veteran is competent to report such symptoms as headaches that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). While the above medical opinions found that the Veteran's headaches are not related to his military service, such opinions do not consider the Veteran's competent allegations of continuity of symptomatology nor do these opinions consider whether the Veteran's headaches are secondary to and/or aggravated by his service-connected disabilities. At this time, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). As such, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran's headache disorder is due to his military service. Therefore, service connection for a headache disorder is warranted. 2. Service connection for fatigue as secondary to service-connected disabilities is granted. The Veteran contends that fatigue is related to his military service, either on a direct basis or as secondary to his service-connected disabilities. As above, the Veteran is service connected for the following disabilities: bilateral pes planus, PTSD, sleep apnea, neck strain, back strain, GERD, bilateral ankle strains, bilateral shin splints, and erectile dysfunction. Service treatment records show several complaints related to the Veteran's feet, back, and neck but are negative for generalized fatigue. The Veteran submitted a claim for service connection for Gulf War illness, later expanded to include fatigue, in August 2009. In connection with this claim, he was afforded a VA Gulf War examination in November 2011. At that time, the Veteran reported that he had been experiencing morning fatigue since 2003. Significantly, the November 2011 VA examiner noted that the Veteran's fatigue was a clinical manifestation of his uncontrolled service-connected diabetes and that the Veteran's untreated diabetes affected his entire body. Pursuant to the October 2013 Board remand, the Veteran was afforded VA chronic fatigue syndrome and Gulf War examinations in November 2016. Significantly, the November 2016 VA chronic fatigue syndrome examination shows that the Veteran did not have, nor had he ever been diagnosed with chronic fatigue syndrome. Also, the November 2016 VA Gulf War examination shows that the Veteran had no diagnosed illnesses for which no etiology was established. Significantly, the November 2016 VA Gulf War examiner found that it was less likely as not that the fatigue was a disability pattern or diagnosed disease that is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale for this, the examiner noted that there was no pattern of illness that is unexplained as the Veteran's fatigue was related to his uncontrolled diabetes. Pursuant to the March 2019 Board remand, the Veteran was afforded another VA chronic fatigue syndrome examination in October 2019. Significantly, this examination report shows that the Veteran did not have, nor had he ever been diagnosed with chronic fatigue syndrome. The examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner wrote that, while the Veteran may have had fatigue during service, there were no medical record entries made during the time of service that reflect this and fatigue was not noted in the medical record until February 2017. Also, there was no evidence to support a CFS (chronic fatigue syndrome) diagnosis as the Veteran's fatigue is more likely a symptom of the Veteran's underlying GERD, diabetes, obstructive sleep apnea, and PTSD. Without a CFS diagnosis, a relationship to service cannot be made. Pursuant to the August 2020 Board remand, the Veteran was afforded yet another VA chronic fatigue examination in December 2020. Again, this examination report shows that the Veteran did not have, nor had he ever been diagnosed with chronic fatigue syndrome. The examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted, first, that the Veteran did not meet the criteria for the diagnosis of chronic fatigue syndrome based on the examination. Second, in term of the Veteran's claimed fatigue, this is only a clinical symptom, not a diagnosis. Chronic fatigue syndrome diagnosis can be established only if other clinical disease or diagnosis can be rule out. In this clinical setting, he has chronic illness such as depression, diabetes mellitus, and obstructive sleep apnea with CPAP (continuous positive airway pressure) machine treatment, and those conditions are well known to cause his fatigue symptoms. Third, in his 3,496 pages of medical records, there is not documentation showing he was diagnosed or treated for chronic fatigue syndrome. Since there is no diagnosis for a fatigue condition, no causation can be rendered. Upon review of the evidence, the Board finds that service connection for fatigue on a secondary basis is warranted. As an initial matter, the Board notes that while the Veteran has not been diagnosed with a separate disability manifested by fatigue there is no question that he experiences fatigue. Furthermore, the Veteran's fatigue has been related to his service-connected GERD, obstructive sleep apnea, and PTSD. Based on the above, it appears that the Veteran may not be appropriately compensated for his fatigue symptoms. As such, service connection for fatigue as secondary to his service-connected GERD, obstructive sleep apnea, and PTSD is warranted along with a determination as to whether a separate rating should be assigned for his fatigue symptoms. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.