Citation Nr: 21070765 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-36 588 DATE: November 26, 2021 ORDER Service connection for chronic fatigue syndrome (CFS) is denied. REMANDED Service connection for spinocerebellar ataxia is remanded. Service connection for tinnitus is remanded. REFERRED CLAIM During the August 2020 hearing the Veteran provided testimony regarding whether compensation is warranted under 38 U.S.C. § 1151 for his claimed tinnitus. A claim for compensation benefits pursuant to 38 U.S.C. § 1151, while raising an alternative means of potentially obtaining VA compensation, is not a claim for service connection. Thus, a claim for compensation under 38 U.S.C. § 1151 is separate and distinct from a claim for compensation under the laws and regulations governing service connection claims. See Anderson v. Principi, 18 Vet. App. 371, 377 (2004). Notably, the agency of original jurisdiction (AOJ) has not adjudicated the Veteran's claim for compensation benefits pursuant to 38 U.S.C. § 1151. Thus, the Board does not have jurisdiction over this claim, and this matter is referred to the AOJ for appropriate action. See 38 C.F.R. § 20.904 (b) (continuing to provide for referral of unadjudicated claims). FINDING OF FACT The Veteran does not have a diagnosis of CFS, and his fatigue symptoms are not due to an undiagnosed illness. CONCLUSION OF LAW The criteria for entitlement to service connection for CFS to include as due to an undiagnosed illness have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from January 1988 to January 1992 during the Gulf War Era. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an August 2020 Board hearing. A transcript of this hearing is of record. 1. Service connection for CFS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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 to a degree of 10 percent or more. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of 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. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes CFS, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multisymptom illness 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom 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. 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 32.317(a)(4). Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A review of the Veteran's service treatment records (STRs) shows no evidence of treatment for or a diagnosis of CFS. The Veteran underwent an in-person diagnostic VA examination for CFS in August 2017. The examiner indicated that the Veteran does not meet the objective criteria for CFS and that his chronic fatigue is due to a neurological condition, spinocerebellar ataxia type 3, and hypogonadism, none of which are related to his military service. The Veteran stated during the August 2020 hearing that he believes he has CFS that is related to exposure to environmental hazards during his service in Southwest Asia and would submit evidence from his physician confirming a diagnosis. Rather, following the hearing, the Veteran submitted several lay statements that corroborate the Veteran's symptoms of severe daily fatigue. To date, there is no competent medical evidence that substantiates a diagnosis for CFS. CFS is a complex disability that requires specific diagnostic testing and examination by a medical professional to diagnosis. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, while a lay person may be competent to report symptoms of fatigue, they are not competent to diagnose CFS. The diagnosis of CFS requires specialized medical knowledge to diagnosis which the Veteran, nor his friends and family, have not been shown to possess. Accordingly, lay statements from the Veteran, friends, and family are not competent to establish a diagnosis for his claimed CFS. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because the Veteran is a Persian Gulf Veteran, however, service connection may alternatively be established for a chronic disability resulting from an undiagnosed illness under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board notes that while the Veteran has reported symptoms of fatigue, it has not been confirmed as a chronic disability on physical examination. Furthermore, the Veteran's fatigue symptoms have been associated with non-service-connected disabilities. Accordingly, as there are no objective indications of a qualifying chronic disability for which service connection may be granted, service connection for CFS cannot be granted under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The record does not demonstrate that the Veteran has been diagnosed with CFS. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for CFS must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for CFS, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 2. Service connection for spinocerebellar ataxia The medical evidence reflects that the Veteran has spinocerebellar ataxia. During the August 2020 hearing the contention was raised that this disability was aggravated beyond its natural progression by service-connected obstructive sleep apnea (OSA). The Veteran has raised a valid contention regarding secondary service connection and the Board will seek a VA medical opinion addressing this argument on remand. 3. Service connection for tinnitus The Veteran has contended that his tinnitus may be related to his service-connected left ear hearing loss. See March 2018 NOD. The Veteran was afforded a VA hearing loss/tinnitus examination in October 2019. The examiner provided a negative nexus finding with respect to whether the Veteran's diagnosed tinnitus may be proximately due to or aggravated by his service-connected left ear hearing loss. However, the examiner only provided a conclusory statement with no rationale and did not address the aggravation prong of this theory of entitlement to compensation. Therefore, this matter must be remanded for an addendum opinion to adequately address this secondary theory of causation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records. 2. Obtain an opinion by a qualified clinician which addresses the following questions. If and only if the examiner determines that an in-person examination is required should one be scheduled. Is at least as likely not that the Veteran's spinocerebellar ataxia was aggravated beyond its natural progression by service-connected OSA? *With respect to the term "aggravation" in the context of a claim for secondary service connection, the examiner is advised that aggravation refers to any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, regardless of permanence. 3. Obtain an opinion by a qualified clinician which addresses the following questions. If and only if the examiner determines that an in-person examination is required should one be scheduled. (a.) Is at least as likely not that the Veteran's tinnitus is proximately due to or caused by his service-connected left ear hearing loss? (b.) Is it at least as likely as not that the Veteran's tinnitus is aggravated beyond its natural progression by service-connected left ear hearing loss? *With respect to the term "aggravation" in the context of a claim for secondary service connection, the examiner is advised that aggravation refers to any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, regardless of permanence. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.