Citation Nr: 21074501 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-49 004 DATE: December 15, 2021 ORDER Service connection for chronic fatigue is denied. Service connection for muscle pain is denied. Service connection for joint pain is denied. Service connection for dermatitis is granted. REMANDED Entitlement to service connection for a disability of the central nervous system is remanded. Entitlement to service connection for imbalance is remanded. Entitlement to service connection for shaking is remanded. Entitlement to service connection for flu-like symptoms is remanded. Entitlement to service connection for short-term memory loss is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding a separate diagnosis of chronic fatigue syndrome, and the Veteran's fatigue is instead shown to be part of his fibromyalgia. 2. The preponderance of the evidence supports that muscle and joint pain are symptoms of the Veteran's fibromyalgia. 3. The evidence shows the Veteran has periodic dermatitis with no known etiology. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for muscle pain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for service connection for joint pain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for service connection for dermatitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1990 to April 1991. The Board previously considered and remanded these issues plus the issues of service connection for headaches and entitlement to total disability based on individual unemployability (TDIU) in April 2019. Service connection for headaches and entitlement to TDIU beginning September 5, 2013 (the date of claim), were granted in a May 2020 rating decision and are no longer on appeal. Service Connection 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. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for a veteran who served in the Southwest Asia Theater during the Persian Gulf War and exhibits objective indications of a qualifying chronic disability may be service connected. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). The Southwest Asia Theater is defined as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). A "qualifying chronic disability" means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a qualifying chronic disability include both signs and symptoms, 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 and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, 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, and menstrual disorders. 38 C.F.R. § 3.317(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for chronic fatigue 2. Service connection for muscle pain 3. Service connection for joint pain Based on the evidence, the Board finds the criteria for service connection for chronic fatigue, muscle pain, and joint pain, as separate and distinct disabilities, have not been met. 38 C.F.R. § 3.303. The record shows chronic fatigue and muscle and joint pain throughout the period on appeal. VA examinations and treatment records show complaints of generalized aches and muscle and joint pain as well as chronic fatigue. Indeed, the record shows these complaints as far back as 1992. Additionally, the Veteran has reported serving in Saudi Arabia and Kuwait. His service personnel records show he was awarded the Kuwait Liberation Medal. Therefore, he is considered a Persian Gulf veteran entitled to the presumptions under 38 C.F.R. § 3.317. While symptoms such as muscle and joint pain and fatigue can be evidence of an undiagnosed illness, the Board finds the weight of the evidence in this case shows that the symptoms are related to a known diagnosis, fibromyalgia, which is a medically unexplained chronic multisymptom illness that has already been attributed to the Veteran's Persian Gulf service. VA examiners in May 2012, July 2012, October 2016, and June 2017 attributed symptoms such as muscle weakness, muscle pain, musculoskeletal pain, and fatigue to the Veteran's fibromyalgia. Musculoskeletal pain and fatigue are known symptoms of fibromyalgia. Indeed, the criteria for the 40 percent rating, which the Veteran receives, specifically include widespread musculoskeletal pain and fatigue. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. Assigning duplicate ratings for the same symptom or functional impairment under multiple diagnostic codes constitutes impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. As the Veteran already receives compensation for these symptoms under the Diagnostic Code for fibromyalgia, he could not receive duplicate compensation under another Diagnostic Code. See id. In his September 2017 Form 9, the Veteran acknowledges that fatigue and joint and muscle pain are symptoms of service-connected fibromyalgia and separate ratings may not be permitted. The Board has considered whether the Veteran has as separate diagnosis of chronic fatigue syndrome. However, the weight of the evidence is against finding a separate diagnosis. An October 1995 treatment record shows diagnosis of chronic fatigue syndrome, but the other medical records do not attribute the Veteran's fatigue to chronic fatigue syndrome. An October 1992 evaluator noted the symptom of fatigue and diagnosed anxiety-depression. The July 2012 examiner, who evaluated the Veteran for disabilities associated with service in the Persian Gulf War, did not diagnose chronic fatigue syndrome. Similarly, although several VA treatment records include a reported medical history of chronic fatigue syndrome, these records show diagnoses of "other malaise and fatigue" and chronic fatigue but not chronic fatigue syndrome. Lastly, the October 2019 VA examiner found the Veteran did not have a diagnosis of chronic fatigue syndrome and instead had symptoms of chronic fatigue that are associated with central sensitization syndrome with fibromyalgia. Although the Veteran is competent to describe symptoms of fatigue, he is not competent to determine the cause as this requires specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further notes that the April 2019 remand cited contradictory evidence as to whether these symptoms were due to fibromyalgia or chronic fatigue syndrome, including the October 1995 diagnosis of chronic fatigue syndrome and complaints of fatigue and muscle and joint pain prior to the 2011 diagnosis of fibromyalgia. As explained, the Board finds the subsequent, consistent evaluations outweigh the single notation of chronic fatigue syndrome in 1995. Moreover, the Board finds the 2011 diagnosis of fibromyalgia indicative of a complex and confusing symptom presentation that was present for years but not properly diagnosed until 2011. The remand also noted contradictory statements in the July 2014 examination where the examiner wrote that the Veteran complained of muscle pain, neurology and other testing had been negative, and it is likely that this is an undiagnosed illness. The examiner then conducted an examination for fibromyalgia and indicated that muscle weakness and tender points were symptoms of fibromyalgia. In the context of the examination and the other evidence of record, the Board interprets the examiner's statement to mean that there was no localized musculoskeletal or neurological cause for the pain symptoms, but the Board finds the remaining evidence, including the examiner's evaluation of fibromyalgia, shows that the generalized muscle and joint pain is a symptom of fibromyalgia. Accordingly, the Board finds fatigue and muscle and joint pain are symptoms already subject to service-connected compensation through the evaluation of fibromyalgia, and a separate award of service connection is not appropriate. 4. Service connection for dermatitis After resolving doubt in the Veteran's favor, the Board finds the criteria for service connection for dermatitis have been met. 38 C.F.R. § 3.303, 3.317. First, the evidence shows a current skin disability. During the October 2019 VA examination, the Veteran reported having periodic attacks of skin rashes that occur on different parts of his body. He reported treating the rashes with topical creams. The October 2019 and June 2017 examiners did not find evidence of a skin condition. However, the Board finds the presence of a skin rash is readily observable by the Veteran and he is competent to provide evidence of such. See Jandreau, 492 F.3d at 1377. Next, as noted, the Veteran has qualifying Persian Gulf service, and the evidence shows the skin disability has unknown etiology and has been present off and on since service. During the October 2019 examination, the Veteran reported continued attacks of skin rashes since the March 1996 diagnosis. In March 1996 statements, the Veteran wrote that he began having skin problems during service in the Persian Gulf. His wife also wrote that he would get rashes on different areas of his body and doctors could not explain it. Again, the Veteran and his wife are competent to provide evidence of an observable skin rash. See Jandreau, 492 F.3d at 1377. The October 2019 examiner found that the Veteran's reported skin condition is attributable to his prior diagnosis of dermatitis, which is without conclusive pathology or etiology. The Board finds the evidence is at least in equipoise that the Veteran's dermatitis is related to his service in the Persian Gulf. REASONS FOR REMAND 1. Entitlement to service connection for a disability of the central nervous system is remanded. 2. Entitlement to service connection for imbalance is remanded. 3. Entitlement to service connection for shaking is remanded. 4. Entitlement to service connection for flu-like symptoms is remanded. 5. Entitlement to service connection for short-term memory loss is remanded. A private provider in April 2015 diagnosed the Veteran with central sensitization syndrome with fibromyalgia and chronic fatigue features. The October 2019 VA examiner found that central sensitization syndrome with fibromyalgia and chronic fatigue features was the most appropriate diagnosis for the Veteran's disability presentation. The examiner noted the Veteran's symptoms of chronic pain and neurologic complaints, including tremors and impaired balance and gait and subsequently noted that all stated symptoms were caused by central sensitization syndrome with fibromyalgia and chronic fatigue features. The examiner found the central sensitization syndrome is not without conclusive pathophysiology or etiology and is less likely than not related to the Veteran's service, because it is a condition of the nervous system that is associated with the development and maintenance of chronic pain. The Board finds an additional opinion is needed. First, as the examiner explained that central sensitization syndrome is associated with development and maintenance of chronic pain, the Board finds a medical expert should consider whether the disability developed during the Veteran's service as there is consistent evidence of the Veteran experiencing generalized pain since service. Additionally, the Veteran submitted an article from the Journal of the American Medical Association in January 1997 discussing a study that found multiple syndromes present in Persian Gulf War veterans that included symptoms such as memory problems, balance disturbances, pain, and paresthesias. It does not appear that the October 2019 examiner considered this evidence when finding the Veteran's central sensitization syndrome was not related to his Persian Gulf service. A new opinion is needed that considers all relevant evidence and provides detailed rationale for conclusions. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board finds an additional opinion would be helpful to determine if the Veteran's reported memory loss is associated with central sensitization syndrome, service-connected acquired psychiatric disorder, or unknown etiology. 6. Entitlement to service connection for obstructive sleep apnea is remanded. Like muscle and joint pain and fatigue, the evidence tends to show that symptoms of sleep disturbance are part of the Veteran's service-connected fibromyalgia and psychiatric disabilities. However, the Veteran has a separate diagnosis of obstructive sleep apnea. The October 2019 examiner opined that obstructive sleep apnea is a separate diagnosis due to structural abnormality in the upper airway. The examiner found obstructive sleep apnea was less likely than not due to the Veteran's service or caused by his psychiatric disability. The examiner does not appear to have considered the complete record, however. Records from the mid-1990s show complaints of sleep problems, and an October 1998 VA record shows the Veteran was diagnosed with obstructive sleep apnea and being treated with a CPAP machine. Additionally, while the examiner found the Veteran's sleep apnea was not caused by his service-connected psychiatric disability, the examiner failed to address aggravation. A new examination is needed that addresses all relevant evidence and theories of entitlement. See Stefl, 21 Vet. App. at 120; ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain an addendum opinion on central sensitization syndrome. The medical expert should review the claims file and address the following: (a.) Did the Veteran's central sensitization syndrome at least as likely as not develop during his service? Consider the multiple and consistent reports of generalized musculoskeletal pain as well as the October 2019 examiner's explanation that the condition is associated with the development and maintenance of chronic pain. (b.) Is the Veteran's central sensitization syndrome at least as likely as not an unexplained chronic multisymptom illness related to exposures while serving in the Persian Gulf? Consider the January 1997 article from the Journal of the American Medical Association submitted by the Veteran. (c.) Is the Veteran's reported shaking, imbalance, and/or memory loss most likely associated with central sensitization syndrome, service-connected acquired psychiatric disorder, or unknown etiology? All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 3. Obtain a medical opinion for obstructive sleep apnea. The expert should review the claims file and address (1) whether the Veteran at least as likely as not developed obstructive sleep apnea during service given the reports of sleep problems in the mid-1990s and record of sleep apnea and use of a CPAP in October 1998, and (2) whether his obstructive sleep apnea was at least as likely as not aggravated (worsened) by his service-connected acquired psychiatric disability. If aggravation is found, provide a baseline level of disability prior to aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.