Citation Nr: 21073697 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-57 974 DATE: December 10, 2021 ORDER Entitlement to service connection for Chronic Fatigue Syndrome (CFS) is denied. Entitlement to service connection for Obstructive Sleep Apnea (OSA) is denied. FINDINGS OF FACT 1. The greater weight of the evidence is against a finding that the Veteran's current CFS diagnosis was manifested in service or related to a disease, injury, or incident in service. 2. The greater weight of the evidence is against a finding that the Veteran's current OSA diagnosis was manifested in service or related to a disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 4.2, 4.3, 4.88a. 2. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.2, 4.3, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1989 to June 1993, to include service in the South West (SW) Asia theater of operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In his November 2016 substantive appeal, the Veteran indicated, "I do not want an optional Board hearing." See November 2016 VA Form 9, Appeal to Board of Veterans' Appeals. The matters were remanded in January 2019 and June 2021 for further development. The matters are returned to the Board for further consideration. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The RO's efforts have substantially complied with the instructions contained in the March 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board emphasizes that it is substantial compliance, not strict compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (aff'd sub nom. Dyment v. Principi, 287 F.37 1377 (Fed. Cir. 2002)). Any potential deficiencies identified in the February 2015, September 2019, and October 2019 examinations were cured by the August and September 2021 examinations. To the extent that the examinations were able to record and address any applicable rating criteria, the Board will rely on the February 2015, September 2019, October 2019, and August and September 2021 examinations in evaluating the Veteran's claim for service connection. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). Further development and further assistance by VA are not warranted. An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See generally 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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Presumptive service connection can satisfy the requirements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a)-(f) that manifest either during active service or subject to the requirements of 38 C.F.R. § 3.307 after discharge or release from military service are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309 does not manifest in-service or within the applicable time limits, the second and third elements of service connection may be granted based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Fed Circuit) clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to those "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of mental health or musculoskeletal diseases. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. See Buchanan, supra (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the Veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Gilbert, supra.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for CFS The Veteran contends: "To this day, my doctors have not given me a diagnosis of chronic fatigue syndrome because they believe it is a symptom of other conditions that I have, namely sleep apnea, irritable bowel syndrome, and migraines." See November 2016 VA Form 9, Appeal to Board of Veterans' Appeals. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). According to the Veteran, he was diagnosed with CFS in March 2018 to satisfy the first element of service connection. See October 2019 VA Chronic Fatigue Syndrome examination report. However, as pointed out by the August and September 2021 VA examiner, the reported diagnosis came from the Ochsner Clinic, whose reports are not available as part of the record. Contemporaneous medical evidence has greater probative value than the Veteran's reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The contemporaneous medical evidence shows that the Veteran has other diagnoses that could also account for many of the symptoms of fatigue and psychosomatic complaints, raising doubts about the diagnosis of CFS, in the absence of definitive records. See February 2015 and August and September 2021 VA Chronic Fatigue Syndrome examination reports. Additionally, the Veteran stated all of his physicians have told him that his fatigue is probably related to his sleep apnea, and the Veteran agrees. See February 2015 VA Chronic Fatigue Syndrome examination report. Given the absence of medical records providing a diagnosis and other diagnoses that could also account for many of the symptoms of fatigue and psychosomatic complaints, the September 2021 VA examiner opined it was less likely than not that the Veteran had CFS. The examiner noted the Veteran had hypothyroidism and OSA that accounted for his fatigue symptoms. The examiner noted that in the absence of documentation of a complete workup that eliminated all plausible explanations for the Veteran's fatigue complaints and in the presence of hypothyroidism and OSA, a diagnosis of CFS could not be sustained or substantiated. Assuming arguendo that the Veteran did have a diagnosis of CFS to satisfy the first element of service connection, a preponderance of the evidence of record is against a finding of an in-service event and nexus to military service, elements two and three required for service connection. The Veteran reported headache, dizziness, blurred vision, and fatigue twice in June 1992 service treatment records. The records indicate that the Veteran was trying to break up a fight between a friend and an unknown shipmate when he was struck in the face. The Veteran was diagnosed with "Post-Concussion Syndrome." See June 1992 Standard Form 558, Emergency Care and Treatment. Service records contain no further complaints of, treatment for, or a diagnosis related to fatigue. The Veteran self-reported "good health" at separation, denied conditions related to fatigue at separation, and was documented without physical defect in a clinical evaluation at separation. See June 1993 Reports of Medical History and Medical Examination. Additionally, the September 2021 examiner opined it was less likely than not that the Veteran's fatigue complaints were due to or incurred in service. The examiner noted the separation examination was negative for all complaints, including those related to hypothyroidism, OSA, and CFS. This included a history, physical, and Veteran-answered Report of Medical History, which was completely negative for any condition whatsoever. The examiner noted that OSA id due to upper airway obstruction, with associated apneic episodes and that hypothyroidism is generally due to thyroiditis, and subsequent burnout of the thyroid requiring supplementation. Both could cause fatigue and daytime somnolence, and hypothyroidism could lead to a sensation of weakness and other somatic complaints. The examiner stated that these were not undiagnosable conditions with unknown etiologies. They were diagnosed conditions with completely explained or predominantly explained etiologies. The examiner noted that fatigue in-service was not unusual, but there was no evidence of chronic fatigue syndrome or either of the undiagnosed conditions, and the separation examination was unequivocal as to their absence. Therefore, the examiner found there was no evidence of onset in-service or continuity since service. The examiner found the Veteran's claim was belied by the medical evidence to the contrary. Further, CFS is not included on the list of chronic diseases enumerated in 38 C.F.R. § 3.309(a). Regarding continuity of symptomatology, the first recorded mention of "fatigue" is a September 2004 private treatment note referencing "daily headaches x 6 months presently in AM with fatigue." The examining physician assessed the Veteran with "possible OSA." See September 2004 Sharp Medical Group Progress Record; see also October 2004 Sharp Patient Visit and October 2004 Sharp Consult / Referral Form. Therefore, the Veteran does not meet the requirements for presumptive service connection, either by diagnosis in service, within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. The February 2015, October 2019, and August 2021 VA medical examinations as well as the September 2021 VA opinion, are the most probative evidence of record on the question of diagnosis and nexus to service. The September 2021 opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA medical opinions are consistent with the evidence of record, including a separation self-evaluation denying fatigue-related conditions, the Veteran's report that his physicians attribute his fatigue to sleep apnea, and the Veteran's agreement with his physician assessments. The VA medical examinations provide compelling evidence against the Veteran's claim for service connection. There is no competent, credible evidence to refute the examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to service connection for CFS. The Board acknowledges the Veteran's lay assertions that he believes his current CFS is related to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., naps without feeling refreshed; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. Conclusory, generalized lay statements that military service caused his current CFS are insufficient to prove service connection. For reasons that include lack of probative value, his lay assertions do not constitute evidence upon which service connection can be granted. In summary, a preponderance of the evidence of record is against a finding that the Veteran is entitled to service connection for CFS. The Board has not overlooked the Veteran's statements regarding the severity of his condition. The Veteran provided lay evidence through private treatment and VA examinations throughout the course of his appeal with respect to the presence of fatigue-related symptoms. However, the Board assigns more weight and probative value to the contemporaneous medical evidence, including service medical records and an in-service self-evaluation, in which the Veteran reported "good health" and denied fatigue-related conditions, private treatment records, which are absent for a diagnosis of CFS, and VA examinations, which could not establish service connection for CFS. In addition, there is no indication that CFS was manifest to a compensable degree within one year of separation or that symptoms have continued since service such that presumptive service connection may be applied to the Veteran. The overall weight of the evidence is against a finding that the Veteran has CFS that is etiologically related to military service. Therefore, service connection for CFS is not warranted, and the claim must be denied. In reaching this conclusion, 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for OSA The Veteran contends: "We averaged flight operations approximately 18 hours per day while underway...When you factored in work hours, flight and / or boat deck operations and watch stations, you could usually sleep three to four hours in a row about every four days...The lack of sleep due to the work schedule, and the environment was crushing." See November 2016 VA Form 9, Appeal to Board of Veterans' Appeals. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has been diagnosed with OSA, satisfying the first element of service connection. See March 2015 Sleep Rite Sleep Study Report. Unfortunately, the record does not contain evidence of an in-service event or a nexus to service, elements two and three required for service connection. Service treatment records for the Veteran document two complaints of headache, dizziness, blurred vision, and fatigue. The Veteran reported being struck in the face after attempting to break up a fight between a friend and an unknown shipmate. After multiple examinations, the Veteran was diagnosed with "Post-Concussion Syndrome." See June 1992 Standard Form 558, Emergency Care and Treatment. There are no further complaints of, treatment for, or diagnoses related to "fatigue" during the Veteran's service. At separation from service, the Veteran self-reported "good health," denied "Frequent trouble sleeping," and produced a "Normal" clinical evaluation. See June 1993 Reports of Medical History and Medical Examination. In 2006 the Veteran participated in a sleep study, with corresponding results that included "normal sleep efficiency index." See March 2006 Kettering Medical Center Letter. Sleep study reports from 2009 and 2010 documented "Severe [Obstructive Sleep Apnea Syndrome,] despite prior surgical intervention." See December 2009 and January 2010 Ochsner Clinic Foundation Sleep Study Reports. The August and September 2021 VA examiner addressed the Veteran's report of "fatigue" in service by stating: [F]atigue in service may be due to many causes. Snoring, fitful sleep, trouble falling asleep, insomnia, easy awakening, choking, gasping, daytime fatigue and somnolence, movements while sleeping, trouble staying asleep, etc. are generalized symptoms and do not substantiate the diagnosis. That the Veteran did not report frequent trouble sleeping almost completely eliminates the possibility of sleep apnea at separation. Not all sleep disturbance is due to sleep apnea, but all sleep apnea has sleep disturbance. See August and September 2021 VA Sleep Apnea examination reports. The February 2015 and September 2019 VA examining physicians concluded that the Veteran's sleep apnea was less likely than not related to a specific environmental exposure event experienced by the Veteran during his service in SW Asia. See February 2015 VA General Medical and September 2019 VA Sleep Apnea examination reports. The September 2021 VA opinion noted that OSA was due to upper airway obstruction with associated apneic episodes which was a known or predominately understood etiology. The examiner found there was no evidence of sleep apnea in service and the separation examination was negative for sleep disturbances. The separation Report of Medical History was also negative from frequent trouble sleeping, a hallmark of OSA. The examiner opined it was unequivocal that Veteran did not have OSA at separation despite complaints to the contrary as there was no evidence to support the onset of symptoms while in service, at separation, or proximate to service. The examiner noted the Veteran was not diagnosed with OSA until the November 2004 sleep study showed a respiratory disturbance index (RDI) of six. This was 11 years post-service. The examiner opined it was unlikely an individual would endure a timespan of 11 years with OSA. Further, the examiner argued the condition would likely have been worse at the time of diagnosis had OSA had its origins in service. The examiner stated that it was all but unequivocal that the Veteran did not have sleep apnea at separation or for a time frame of 11 years as the RDI of six all but guaranteed a recent onset of mild disease at the time of diagnosis. The examiner noted that even if the symptoms began in 1995 as reported by the Veteran, this would still be two years post-service; however, it was more likely than not that the onset was in 2003/2004 based on the RDI. The February 2015, September 2019, and August 2021 VA medical examinations and the September 2021 VA opinion are the most probative evidence of record on the question of diagnosis and nexus to service. The opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The February 2015, September 2019, August 2021, and September 2021 VA medical opinions are consistent with the evidence of record, including a separation self-evaluation denying "Frequent trouble sleeping" and private medical records that diagnosed OSA at least 11 years after service. The VA medical examinations provide compelling evidence against the Veteran's claim for service connection. There is no competent, credible evidence to refute the examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to service connection for OSA. Further, OSA is not included on the list of chronic diseases enumerated in 38 C.F.R. § 3.309(a). Regarding continuity of symptomatology, the first recorded mention of "fatigue" is a September 2004 private treatment note referencing "daily headaches x 6 months presently in AM with fatigue." The examining physician assessed the Veteran with "possible OSA." See September 2004 Sharp Medical Group Progress Record; see also October 2004 Sharp Patient Visit ("Patient is referred for evaluation of sleep disorder") and October 204 Sharp Consult / Referral Form ("Sleep Apnea?"). Therefore, the Veteran does not meet the requirements for presumptive service connection, either by diagnosis in service, within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. The Board acknowledges the Veteran's lay assertions that he believes his current OSA is related to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., snoring; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. Conclusory, generalized lay statements that military service caused his current OSA are insufficient to prove service connection. For reasons that include lack of probative value, his lay assertions do not constitute evidence upon which service connection can be granted. In summary, a preponderance of the evidence of record is against a finding that the Veteran is entitled to service connection for OSA. The Board has not overlooked the Veteran's statements regarding the severity of his condition. The Veteran provided lay evidence through private treatment and VA examinations throughout the course of his appeal with respect to the presence of fatigue-related symptoms. However, the Board assigns more weight and probative value to the contemporaneous medical evidence, including service medical records and an in-service self-evaluation, in which the Veteran reported "good health" and denied "Frequent trouble sleeping," private treatment records, which are absent for a diagnosis of OSA until 2009, and VA examinations, which could not establish service connection for OSA. In addition, there is no indication that OSA was manifest to a compensable degree within one year of separation or that symptoms have continued since service such that presumptive service connection may be applied to the Veteran. (CONTINUED ON NEXT PAGE) The overall weight of the evidence is against a finding that the Veteran has OSA that is etiologically related to military service. Therefore, service connection for OSA is not warranted, and the claim must be denied. In reaching this conclusion, 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kelly A. Gastoukian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.