Citation Nr: 21075314 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-15 829 DATE: December 20, 2021 ORDER Entitlement to service connection for a chronic muscle fatigue disability is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome which had its onset in service, has been chronic or continuous since service separation, manifested to a compensable degree within a year of service, or is due to an in-service disease, injury, or other incident of service. 2. The Veteran does not have a current diagnosis of chronic fatigue syndrome which is due to or aggravated by a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This issue was previously and most recently remanded by the Board in November 2020 for additional development. The requested development has been accomplished and this issue is back before the Board. Also remanded by the Board in November 2020 were the issues of service connection for peripheral neuropathy of the bilateral upper and lower extremities, and for a gastrointestinal disability. In an August 2021 rating decision, the Veteran was granted service connection for peripheral neuropathy of the upper and lower extremities, and for gastroesophageal reflux disease. Thus, these issues are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Entitlement to service connection for a chronic muscle fatigue disability The Veteran seeks service connection for a disability characterized by chronic muscle fatigue. He asserts such a disability was incurred in service or is otherwise related to his service in the Southwest Asia theater of operations during the Persian Gulf War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air 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, 2016; and (4) such symptomatology 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; 76 Fed. Reg. 81834-81836 (Dec. 29, 2011); Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). Objective indications of a 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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic 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 addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The Board acknowledges that the Veteran's complete service treatment records are not available for review. Nevertheless, the unavailability of the Veteran's complete service treatment records is not necessarily fatal to these claims. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran's claim of service connection for a disability manifested by chronic muscle fatigue. It shows instead that he does not experience a current and separate disability due to chronic fatigue which could be attributed to active service, to include service in the Persian Gulf. For example, on VA chronic fatigue syndrome Disability Benefits Questionnaire (DBQ) in September 2017, the Veteran's complaints included constantly feeling tired, a lack of energy, and difficulty sleeping. The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran had no findings, signs, or symptoms, including cognitive impairment, attributable to chronic fatigue syndrome (CFS), according to the examiner. The Veteran further reported his symptoms were nearly constant. The VA examiner concluded that all of the Veteran's complaints were subjective. This examiner also concluded that there was no evidence on physical examination to support the Veteran's subjective complaints. This examiner finally concluded that no diagnosis of chronic fatigue syndrome or a related disability was warranted. Pursuant to the Board's November 2020 remand order, the Veteran was afforded an April 2021 VA medical examination and opinion. After review of the claims file and physical examination of the Veteran, the VA examiner determined a diagnosis of chronic fatigue syndrome was not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board recognizes that the U.S. Court of Appeals for Veterans Claims (Court) has held that the presence of a chronic disability at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). The Board further recognizes that pain or other symptomatology, even without an accompanying diagnosis of a present disease, can qualify as a disability if it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). In the present case, the preponderance of the evidence is against a finding of a current diagnosis of chronic fatigue syndrome. Additionally, the preponderance of the evidence is against a finding that the Veteran's alleged chronic fatigue results in functional impairment not already considered and compensated under other diagnostic criteria. The April 2021 VA examiner did acknowledge that the Veteran does experience symptoms of chronic fatigue, according to his subjective reports; however, these symptoms were attributable by the examiner to his service-connected posttraumatic stress disorder (PTSD) and sleep apnea. As such symptoms are already associated with, and compensated as part of, other service-connected disabilities, award of service connection for a separate disability for the same symptomatology would constitute pyramiding, a practice prohibited by regulation. See 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, service connection for chronic fatigue syndrome is not warranted. The preponderance of the evidence is against a finding the Veteran has a current diagnosis of chronic fatigue syndrome. Additionally, to the extent he experiences feelings of chronic fatigue resulting in functional impairment, such symptoms are associated with and compensated as part of other service-connected disabilities, and a separate award of service connection is not warranted. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.