Citation Nr: 21067894 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-24 919 DATE: November 5, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for a condition manifested by fatigue, changes in appetite, sleeping problems, and inability to concentrate is denied. Entitlement to service connection for headaches as a manifestation of a medically unexplained, chronic multi-symptom illness is granted. Entitlement to service connection for skin rashes as a manifestation of a medically unexplained, chronic multi-symptom illness is granted. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of chronic fatigue syndrome. 3. Symptoms of fatigue, changes in appetite, sleeping problems, and inability to concentrate have been attributed to the Veteran's service-connected PTSD. 4. The Veteran has a medically unexplained chronic multi-symptom illness of unknown etiology, characterized by skin rashes and headaches, which have manifested to a compensable degree. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for establishing entitlement to service connection for a condition manifested by fatigue, changes in appetite, sleeping problems, and inability to concentrate have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for establishing service connection for a headache condition, to include as due to a medically unexplained chronic multi-symptom illness of unknown etiology, are met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for establishing service connection for a skin condition, to include as due to a medically unexplained chronic multi-symptom illness of unknown etiology, are met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to December 1991. This matter is on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for chronic fatigue syndrome, a condition manifested by fatigue, changes in appetite, sleeping problems, and inability to concentrate, headaches, and skin rashes. The Veteran timely perfected an appeal. See September 2014 Notice of Disagreement; May 2015 Statement of the Case; July 2015 VA Form 9. In December 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who no longer serves as a VLJ at the Board, and a transcript of this hearing has been associated with the record. In September 2021, the Board informed the Veteran of his right to request an additional hearing before a VLJ, and that if the Board did not receive the Veteran's reply within 30 days, it would assume that the Veteran did not wish to participate in another hearing. To date, the Veteran has not responded to this letter, and the Board assumes that the Veteran does not wish to participate in an additional hearing before another VLJ. In April 2019, the Board remanded this matter for additional development. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). 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, 2026, 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. The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e) (1). A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder) that is defined by a cluster of signs or symptoms, or (C) 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)(2)(i)(B). Chronic fatigue syndrome is a qualifying chronic disability for purposes of 38 U.S.C. § 1117. See 38 C.F.R. § 3.317 (a)(2)(i)(B). Objective indications of such a chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators capable of independent verification. 38 C.F.R. § 3.317 (a)(2)(ii)(3). Disabilities that have existed for at least 6 months and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(2)(ii)(4). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. A. Chronic Fatigue Syndrome The Veteran contends that he has chronic fatigue syndrome (CFS) related to service, including as due to an undiagnosed illness. In the present case, the Veteran served in the Southwest Asia Theater of Operations during the Gulf War as shown by service personnel records. Thus, the Board finds that the Veteran is a "Persian Gulf Veteran" for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317 (e)(1). For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a. While chronic fatigue syndrome is listed as one of the qualifying chronic disabilities in section 3.317, the Board finds that the weight of the evidence does not demonstrate that the Veteran has a current diagnosis of this condition. In this regard, VA and private treatment records do not reflect a diagnosis of chronic fatigue syndrome. Rather, treatment records show that the Veteran's complaints relating to fatigue have been attributed to other diagnosed conditions, including PTSD, neck and back conditions, and sinus/allergy conditions. See November 2009 VA Treatment Record (noting that Veteran could not sleep secondary to neck and back pain); November 2013 VA Treatment Record (Veteran reporting a history of sleep issues "but mostly from sinus and back issues"); May 2014 VA Treatment Record (noting that the Veteran had poor sleep and nightmares related to his diagnosed PTSD). During a January 2020 VA PTSD examination, the Veteran indicated that he "struggles with sleep," a symptom that he attributed to PTSD. The Veteran was afforded a VA chronic fatigue syndrome examination in February 2020. The examiner indicated that the Veteran did not meet the criteria for chronic fatigue syndrome. During a January 2020 VA Gulf War general medical examination, the examiner opined that the Veteran's symptoms of fatigue and sleep problems were most likely symptoms of his service-connected PTSD. The Veteran is competent to report his symptoms, but he is not competent as a lay person to diagnose chronic fatigue syndrome or attribute his symptoms to an undiagnosed illness related to his active duty service in the in Southwest Asia theater of operations during the Persian Gulf War. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Here, providing a diagnosis of chronic fatigue syndrome and/or the etiology of chronic fatigue is a complex question that involves an assessment of symptoms and application of professional judgment outside of the realm of knowledge of a layperson using his/her senses. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran's opinion that he has CFS is beyond the scope of his competency and is of no probative value. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. As there is no evidence of a current diagnosis of chronic fatigue syndrome, the first element of service connection is not satisfied. As such, service connection for chronic fatigue syndrome is denied. B. Condition Manifested by Fatigue, Changes in Appetite, Sleeping Problems, and Inability to Concentrate As noted above, the Veteran is a Persian Gulf War veteran, and he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. Here, however, the Veteran's symptoms of fatigue, changes in appetite, sleeping problems, and inability to concentrate have been attributed to a known diagnosis. Specifically, the Veteran has been diagnosed with PTSD, and multiple treating providers and VA examiners have opined that his symptoms of fatigue, changes in appetite, sleeping problems, and inability to concentrate are related to his service-connected PTSD. See January 2020 VA Gulf War Examination (attributing symptoms of fatigue, changes in appetite, sleeping problems, and inability to concentrate to the Veteran's service-connected PTSD); January 2020 PTSD Examination (indicating that the Veteran's symptoms of fatigue, changes in appetite, sleeping problems, and inability to concentrate "are all consistent with and reflective of his prior service-connected diagnosis of PTSD). The Board notes that the Veteran is already separately service-connected for the disability to which his symptoms have been attributed, i.e., PTSD. The evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. Thus, as the Veteran is already receiving compensation for these symptoms, granting the Veteran a separate rating would constitute impermissible pyramiding. In sum, the preponderance of the evidence shows that the symptoms asserted by the Veteran with regard to this claim encompass the same symptomatology that is already associated with other diagnosed disabilities, including his already service-connected PTSD. The Board therefore finds that the preponderance of the evidence is against the claim, and it is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b). C. Headaches and Skin Rashes The Veteran contends that he has a headache condition and a skin condition due to environmental exposures in Southwest Asia and/or an undiagnosed/chronic multi-symptom illness. As noted above, the Veteran is a Persian Gulf War veteran, and he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. The Veteran was afforded a VA skin diseases examination in February 2020. He reported an itchy rash of the arms, back, legs, and neck that flares-up and that he treats with topical creams. The examiner diagnosed the Veteran with eczema and noted that there were no current flare-ups of the condition. The examiner opined that the Veteran's eczema was at least as likely as not a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology because "the findings fall within the VA provided list of signs and symptoms that may represent a diagnosed medically unexplained chronic multisymptom illness and because "[c]urrent examination, review of medical records[,] and general medical knowledge do not provide an etiology that is either partially explained or clear and specific." There are no contrary opinions of record. The Veteran was afforded a VA headache conditions examination in March 2021. The examiner diagnosed the Veteran with migraine headaches and opined that the Veteran's headache condition was at least as likely as not a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology because he could not identify a known disease or disability that causes the Veteran's headaches. Therefore, the examiner concluded that the Veteran's headaches "would constitute a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms." Based on the foregoing, the Board finds that the Veteran has a medically unexplained multi-symptom Gulf War illness defined by a cluster of symptoms including skin rashes and headaches. Finally, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headache and skin conditions have manifested to a compensable level. Regarding headaches, under Diagnostic Code 8100, a 10 percent disability rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. Here, the Veteran's lay statements, which are supported by treatment records and VA examination reports, show that the Veteran experiences at least weekly headaches, some of which require him to stop working due to an inability to think or focus. Regarding a skin condition, Diagnostic Code 7806 provides compensation for service-connected dermatitis or eczema. 38 C.F.R. § 4.118. Prior to August 13, 2018, a 10 percent rating was provided where: 1) at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration less than six weeks during the past 12-month period. Effective August 13, 2018, dermatitis or eczema is evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 38 C.F.R. § 4.118. Although the Board acknowledges that the Veteran's skin condition was not currently flared-up during the February 2020 VA examination, the Veteran is competent to describe skin condition symptoms, to include flare-ups of rashes of the arms, back, neck, knees, and armpits. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran's statements credible regarding the onset and ongoing presence of his skin condition. In sum, the Veteran has diagnoses of a skin condition and headaches with no apparent pathology or etiology, and the medical and lay evidence establishes that his conditions are chronic and compensable. Based on the medical evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's headaches and skin conditions are manifestations of a medically unexplained chronic multi-symptom illness, which is presumptively service connected in light of the Veteran's service in the Persian Gulf War. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.