Citation Nr: 21071383 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-01 464 DATE: November 30, 2021 ORDER Entitlement to service connection for a fatigue disorder, to include as due to exposure to environmental hazards, an undiagnosed illness, or a medically unexplained chronic multisymptom illness (MUCMI), is denied. Entitlement to service connection for gastrointestinal symptoms, other than irritable bowel syndrome (claimed as gastroesophageal reflux disease and gastric ulcers), to include as due to exposure to environmental hazards, an undiagnosed illness, or a MUCMI, is denied. REMANDED Entitlement to service connection for migraine headaches, to include as due to exposure to environmental hazards, an undiagnosed illness, or a MUCMI, or as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left eye disability, to include as due to exposure to environmental hazards, or as secondary to a right eye disability, is remanded. Entitlement to service connection for a right eye disability, to include as due to exposure to environmental hazards, or as secondary to a left eye disability, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome and there is no identified chronic disability pattern or fatigue syndrome that is a manifestation of an undiagnosed illness or a MUCMI or is otherwise causally or etiologically due to service. 2. The medical evidence indicates that the Veteran's gastrointestinal symptoms are due to known clinical diagnoses of chronic diarrhea, gastritis, diverticulitis, and C. Difficile infection; it is less likely than not that any current gastroesophageal disorder was incurred in, or is otherwise causally related to, his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disorder manifested by fatigue, to include as a manifestation of an undiagnosed illness or a MUCMI, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for gastrointestinal symptoms, other than irritable bowel syndrome, to include as a manifestation of an undiagnosed illness or a MUCMI, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1984 to July 1987 and October 1987 to October 1991, with additional service in the Reserves. He had service in Southwest Asia from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from July 2012, January 2014, and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in October 2015 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In July 2018 and March 2021, the Board remanded these claims for additional development. Service Connection The Veteran seeks entitlement to service connection for fatigue and gastrointestinal symptoms. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a Persian Gulf Veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317 (a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317 (a)(4). Here, the Veteran had active service in Southwest Asia from December 1990 to May 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). 1. Entitlement to service connection for fatigue. The Veteran seeks entitlement to service connection for a disorder manifested by fatigue. The Veteran was afforded a VA examination in April 2013. With regard to fatigue, the Veteran reported he had been checked for sleep apnea with a sleep study at least twice, but results were negative. He reported not sleeping well at night, that he was restless and had acid reflux. The Veteran reported trouble falling asleep and sleep was interrupted. He indicated he slept about four hours each night and was falling asleep at work but had not fallen asleep driving. He reported he was recently prescribed a sleeping pill but had not filled the prescription. The examiner opined that the Veteran's fatigue was likely related to interrupted sleep from reflux, with no evidence to relate his fatigue to service. The Veteran testified at a RO hearing in February 2015 that he is always tired, falls asleep often, and does not wake refreshed in the morning. In October 2015, the Veteran testified at a Board hearing that he felt fatigued when serving in the Gulf and that he fell asleep in an ammo carrier during service. The Veteran testified that he always feels tired and frequently falls asleep. He indicated he was prescribed sleeping pills. The Veteran was afforded a VA examination in March 2020. The Veteran reported an onset of feeling tired all the time after he got out of service, noting that he would have to take a nap during the day to help with his symptoms. After examination, it was noted that there was no objective evidence in the medical records or in the examination to support a diagnosis of chronic fatigue syndrome and his complaints were subjective only; no diagnosis was warranted. An addendum opinion was obtained in June 2021. The examiner stated that no chronic diagnosis for fatigue was made as the objective examination was normal and symptoms were only subjective. The examiner noted that there were no documented complaints of fatigue during service and numerous VA examinations failed to diagnosis chronic fatigue syndrome. The examiner noted that the Veteran reported feeling tired, having headaches and poor sleep, which are symptoms associated with chronic fatigue, but the Veteran must have six or more symptoms related to chronic fatigue syndrome; therefore, no diagnosis is made. The examiner noted the Veteran has a medical history of anemia, HIV, diabetes, heart issues, and insomnia and that all of these conditions can cause fatigue, however, none of them are caused by potential exposure to environmental hazards during service. The examiner explained that key clinical features of chronic fatigue include an onset that may be sudden, often associated with a typical infection such as an upper respiratory infection or mononucleosis, or gradual over several months, overwhelming fatigue associated with additional symptoms (altered sleep and cognition), symptoms characteristically exacerbated by excessive physical activity and affected patients are typically highly functioning individuals who are "struck down" with the disease. The examiner concluded by stating there is nothing in the file or the Veteran's descriptions of subjective symptoms that follows this pattern, which would have developed during his time in service had he developed chronic fatigue syndrome due to an exposure event in Southwest Asia. As to compensation under 38 C.F.R. § 3.317 (undiagnosed illness or MUCMI), the Board finds that the Veteran has neither an undiagnosed illness nor a MUCMI. To the extent that the Veteran has symptoms of fatigue, they have been attributed to his nonservice-connected anemia, HIV, diabetes, heart issues, and insomnia; the medical evidence reflects that he does not meet the diagnostic criteria for a diagnosis of chronic fatigue syndrome. Therefore, he does not have an undiagnosed illness or MUCMI under 38 C.F.R. §§ 3.317, 4.88A(a) (Chronic Fatigue Syndrome). Here, the Veteran's fatigue complaints were not found to be meet the diagnostic criteria for chronic fatigue syndrome, and the pathophysiology and etiology of his reported fatigue complaints are at least partially understood (e.g., due to anemia and HIV) as per the VA examiner. As such, the Board finds that service connection for fatigue as an MUCMI is not warranted. Moreover, his complaints of fatigue cannot qualify as an undiagnosed illness because one of the requirements necessary to obtain compensation for an undiagnosed an undiagnosed illness is that the signs, symptoms, or conditions cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). Here, the Veteran's complaints of fatigue are likely attributable to other diagnosable disorders (e.g., anemia and HIV) per the VA examiner. Consequently, the Board finds that the evidence of record does not support a finding that the Veteran suffers from an undiagnosed or MUCMI, but instead his symptom of fatigue is a manifestation of nonservice-connected disorders. The findings of the VA examinations are consistent with the clinical records that span from before the appeal period through the present. While the treatment records reflect complaints of fatigue, as noted, his fatigue has been associated with nonservice-connected disorders. At no point in the record is there evidence of a diagnosis of chronic fatigue syndrome or a chronic fatigue disorder. The Board has also considered service connection for fatigue on a direct basis. However, there is no persuasive evidence that his fatigue symptoms result in any functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The June 2021 VA examination specifically noted that there was no functional impairment. The Board notes that the only evidence favorable to the Veteran's claim are his own statements. However, the Veteran is a lay person, so his etiological opinions are of less weight and probative value than the unfavorable medical evidence. He is competent to report feelings of fatigue (see Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004) (providing that lay persons are competent to report objective signs of illness and nexus evidence is not necessary for undiagnosed illnesses)), but he is not competent to determine the cause of such symptoms to other than as due to an undiagnosed illness as he is not shown to have the requisite medical expertise to provide such a complex diagnosis or opinion. Additionally, to the extent the Veteran reports having experienced fatigue symptoms during service, the Board finds his assertions to be less than credible. As noted, the Veteran testified in October 2015 that he experienced fatigue during service; however, he reported during the March 2020 VA examination that the onset of fatigue occurred after he was discharged from service. In weighing credibility, the Board may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record. In this case, the Veteran has set forth differing accounts as to the onset of his fatigue. As the Veteran's account of the onset of his fatigue symptoms has been inconsistent, the Board cannot find him credible in this regard and, therefore, does not afford his statements any probative weight. The most probative evidence of record are the VA examinations finding that the Veteran does not have any pathology to render a diagnosis for chronic fatigue syndrome, nor does he have an undiagnosed illness manifested by fatigue. The voluminous medical evidence discloses no evidence that a clinical provider has assigned a diagnosis of chronic fatigue syndrome or an undiagnosed illness manifested by fatigue and is strong and persuasive evidence against the claim. Thus, service connection for chronic fatigue syndrome and/or a fatigue syndrome is denied. The Board does not dispute that the Veteran experiences symptoms of fatigue; however, because he does not have a separate and distinct fatigue disorder and does not have any pathology for chronic fatigue syndrome, or any indication of an undiagnosed illness, the claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable to the claim. 2. Entitlement to service connection for gastrointestinal symptoms, other than irritable bowel syndrome. The Veteran seeks entitlement to service connection for gastrointestinal symptoms. Of note, the Veteran was granted service connection for irritable bowel syndrome (IBS) in an August 2020 rating decision. The Veteran was afforded a VA examination in April 2013. He reported nausea, vomiting, diarrhea, heartburn, and indigestion. He was assessed with gastroesophageal reflux disease (GERD) and the examiner indicated the Veteran's GERD did not have a link to service. A May 2015 private treatment note reports the Veteran was diagnosed with "gastritis" and "Gulf War Syndrome, gastritis related." A VA medical opinion was obtained in March 2020. The examiner stated there was no current diagnosis of GERD, no GERD shown on an esophagogastroduodenoscopy (EGD) in 2013, only gastritis, which has a known cause and was acute. The examiner opined that the most likely etiology of the Veteran's not otherwise specified GERD symptoms was his HIV. The Veteran was afforded a VA examination in June 2021. The Veteran reported developing chronic diarrhea after returning from deployment. He was diagnosed with chronic diarrhea. The examiner opined that the Veteran's chronic diarrhea is due to his HIV medications, as the record was silent for complaints of diarrhea until 2011. Regarding the 2013 diagnosis of GERD, the examiner opined that the diagnosis appears to be based on symptoms described by the Veteran, but a review of the EGD/colonoscopy is absent any physical signs of GERD. The examiner explained that without physical evidence of GERD on EGD, a diagnosis is not warranted. The examiner concurred with the 2020 VA opinion that the evidence does not support a diagnosis of GERD. The examiner noted the Veteran was diagnosed with gastritis, diverticulitis, and C. Difficile infection, all of which were acute, resolved conditions with a known etiology, and therefore, not due to exposure to environmental hazards during service. As to compensation under 38 C.F.R. § 3.317 (undiagnosed illness or MUCMI), the Board finds that the Veteran has neither an undiagnosed illness nor a MUCMI. To the extent that the Veteran has reported gastrointestinal symptoms, they have been diagnosed as chronic diarrhea attributed to his nonservice-connected HIV, as well as gastritis, diverticulitis, and C. Difficile infection. Therefore, these symptoms are not due to an undiagnosed illness or MUCMI under 38 C.F.R. § 3.317. The findings of the VA examinations are consistent with the clinical records that span from before the appeal period through the present. While the treatment records reflect complaints of gastrointestinal symptoms, as noted, his chronic diarrhea has been associated with nonservice-connected HIV and his gastritis, diverticulitis, and C. Difficile were noted to be acute. The Board has also considered the Veteran's complaints under 38 C.F.R. § 3.317 which allows for presumptive service connection of qualifying chronic disability resulting from either an undiagnosed illness or a MUCMI. Here, the pathophysiology and etiology of his reported gastrointestinal complaints are at least partially understood (e.g., due to HIV, gastritis, diverticulitis and C. Difficile) as per the VA examiner. As such, the Board finds that service connection for gastrointestinal symptoms as an MUCMI is not warranted. Moreover, his complaints of gastrointestinal symptoms cannot qualify as an undiagnosed illness because one of the requirements necessary to obtain compensation for an undiagnosed an undiagnosed illness is that the signs, symptoms, or conditions cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). Here, the Veteran's complaints of chronic diarrhea are likely attributable to HIV per the VA examiner, and his gastritis, diverticulitis, and C. Difficile were acute and resolved. Consequently, the Board finds that the evidence of record does not support a finding that the Veteran suffers from an undiagnosed or MUCMI. The Board has also considered service connection for gastrointestinal symptoms on a direct basis. However, the only evidence favorable to the Veteran's claim are his own statements. The Veteran is a lay person, so his etiological opinions are of less weight and probative value than the unfavorable medical evidence. He is competent to report gastrointestinal symptoms (see Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004) (providing that lay persons are competent to report objective signs of illness and nexus evidence is not necessary for undiagnosed illnesses)), but he is not competent to determine the cause of such symptoms to other than as due to an undiagnosed illness as he is not shown to have the requisite medical expertise to provide such a complex diagnosis or opinion. The VA medical opinions are the most probative pieces of evidence because they are the only pieces of evidence that directly address whether there is a nexus between the Veteran's current symptoms and his military service, including the potential impact of environmental exposures from service in Southwest Asia. The VA medical opinions are well-reasoned and supported by medical evidence as well as review of the file. The Board does not dispute that the Veteran experiences gastrointestinal symptoms; however, the Veteran does not have an undiagnosed illness or MUCMI and there is no persuasive evidence that the Veteran's currently diagnosed disorders had an onset during service or are otherwise causally or etiologically due to service, to include exposure to environmental hazards. Furthermore, the Board finds that the preponderance of evidence indicates the Veteran did not have GERD, as multiple VA examiners indicated that the 2013 EGD did not demonstrate findings of GERD and the prior diagnosis was made only on the Veteran's reported symptoms. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable to the claim. Accordingly, the weight of the evidence is against a finding of a nexus between the Veteran's gastrointestinal symptoms and his time in service, and service connection is denied. REASONS FOR REMAND 3. Entitlement to service connection for migraine headaches, to include as due to exposure to environmental hazards, an undiagnosed illness, or a MUCMI, or as secondary to service-connected PTSD. The Veteran seeks entitlement to service connection for migraine headaches. In September 2021, the Veteran submitted a positive medical opinion from Dr. S., noting that the Veteran had PTSD and "the subsequent development of his current headaches are clearly related to that occupation/those exposures." No rationale was provided to support the opinion which renders the opinion insufficient to substantiate the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that a medical opinion must support its conclusion with an analysis). Of note, service connection for PTSD was granted in a January 2014 rating decision. To date, a VA medical opinion has not yet been obtained as to whether his diagnosed migraines are secondary to his service-connected PTSD. Given that the September 2021 private medical opinion contains no rationale, the Board finds a remand is necessary to obtain a VA medical opinion. 4. Entitlement to service connection for a left eye disability, to include as due to exposure to environmental hazards, or as secondary to a right eye disability. 5. Entitlement to service connection for a right eye disability, to include as due to exposure to environmental hazards, or as secondary to a left eye disability. The Veteran seeks entitlement to service connection for left and right eye disabilities. The Veteran submitted multiple private medical opinions indicating his current right eye disorder is due to an injury received during service. Service treatment records document a left eye injury that occurred while playing football; however, a right eye injury is not documented in the service treatment records that are associated with the claims file. In December 2014, a fellow servicemember, J.D., asserted he was the accident reporting officer for the incident in which the Veteran injured his eye during a Battery Activity and that he completed a DA Form 285 Accident Report for the Commander. The DA Form 285 is not associated with the claims file. On remand, the RO should obtain and associate with the claims file the DA Form 285 pertaining to the Veteran's eye injury. The matters are REMANDED for the following action: 1. Contact the appropriate record custodian to determine whether a DA Form 285, Accident Report, completed by reporting officer J.D., regarding the Veteran's asserted right eye injury suffered during a Battery Activity, while stationed with the Howitzer Battery, 2nd Squadron, 2nd Armored Cavalry Regiment, exists, and if so, obtain it and associate it with the record. Document all correspondence. 2. Obtain an addendum opinion for the Veteran's migraines. Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of his disorder, please answer the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's migraines are proximately due to or aggravated (beyond a natural progression) by his PTSD? The examiner should consider and discuss the September 2021 private medical opinion relating the Veteran's headaches to his PTSD. A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. If it is not possible to provide the requested opinions without resort to speculation, the examiner should explain why that is so. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.