Citation Nr: 21075786 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-09 189A DATE: December 21, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome, including as due to manifestations of an undiagnosed illness, is remanded. Entitlement to service connection for hypothyroidism is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to November 2000, from February 2003 to May 2004, and from October 2010 to October 2011. He had additional service in the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before Veterans Law Judge Chu (née Jeng) in August 2017. Later, the Veteran testified before Veterans Law Judge Buck during a February 2020 Board hearing. Transcripts of both hearings have been associated with the claims file. Veterans Law Judges (VLJs) who conduct hearings must participate in making the final determination of a claim. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Where two VLJs hold hearings on the same issue, a three-judge panel is assigned, and the Veteran must be afforded an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In this case, VLJ Jeng (Chu) and VLJ Buck both held a hearing on the same issue now on appeal. As such, VLJ Buck discussed the option of having an additional hearing before a third VLJ. The Veteran submitted correspondence in February 2020 that he waived his right to appear at an additional hearing before a third VLJ. The issue on appeal was denied in a September 2020 three-judge panel Board decision. A July 2021 order by the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR), which set aside the September 2020 denial by the Board, and remanded the issue for a new opinion. As a preliminary matter, the Board notes that in May 2009 the Veteran filed an informal claim for weakness and fatigue. In October 2009, the RO confirmed and continued the previous denial of service connection for chronic fatigue syndrome. During the pendency of the appeal for chronic fatigue syndrome, the Veteran filed a claim for entitlement to service connection for hypothyroidism in May 2012, and entitlement to service connection for obstructive sleep apnea in June 2016. The Board finds that the Veteran's May 2009 informal claim for weakness and fatigue encompasses claims for entitlement to service connection for hypothyroidism and obstructive sleep apnea. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding the scope of a claim is broader than the disability identified by the claimant and includes whatever diagnosis or label found to encompass the identified symptoms). Accordingly, the issue of entitlement to service connection for hypothyroidism is currently before the Board. However, the Board notes that the issue of entitlement to service connection for obstructive sleep apnea was granted by the RO in a May 2021 Rating Decision effective April 7, 2021. As this represents a full grant of benefits, the issue of entitlement to service connection for obstructive sleep apnea is not currently before the Board. Additionally, the Board notes that the issue of entitlement to an earlier effective date for the grant of service connection for sleep apnea prior to April 7, 2021 was raised by the Veteran and denied by the RO in a July 2021 Rating Decision. The Board notes that the Veteran has the option to appeal this decision by properly filing a VA Form 10182 Notice of Disagreement within one year of the July 2021 rating decision. 1. Entitlement to service connection for chronic fatigue syndrome, including as due to manifestations of an undiagnosed illness, is remanded. The Veteran contends that his claimed chronic fatigue syndrome is a result of his service in Southwest Asia. Specifically, the Veteran asserts that during his deployment to Iraq in 2003 and 2004, he began to notice he was feeling "extreme tiredness and fatigue even after a full night of rest (8 hours)." The Veteran contends that this fatigue turned chronic and persists to the present time, and as such, he should be afforded service connection. The Veteran had an examination for his claimed chronic fatigue syndrome in October 2017. The examiner found that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. The examiner stated that the Veteran has significant diagnoses which have profound effects on energy levels. The examiner noted that two of these, hypothyroidism and obstructive sleep apnea, can cause considerable fatigue. The examiner also noted the Veteran's documented post-traumatic stress disorder (PTSD) and adjustment disorder, which may affect his mood and outlook toward activity or effort. The examiner opined that the diagnosed conditions are more likely the primary contributing factor to fatigue. The Board finds that the October 2017 examiner's opinion is inadequate. The examiner provided an inadequate explanation for relating the Veteran's fatigue to hypothyroidism and sleep apnea, given that the Veteran has reported experiencing fatigue following his first tour of duty in Iraq between 2002 and 2003 and given he was first diagnosed with hypothyroidism in 2007 and sleep apnea in July 2012. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Accordingly, remand is warranted to obtain a new medical opinion regarding the Veteran's reported fatigue. Additionally, the Board notes that there may be outstanding medical treatment records from the Department of Defense (DoD). Notably, at an April 2020 VA treatment visit to re-establish care with VA, the Veteran reported that "he's been going to the DoD for care." It is not clear whether VA has attempted to obtain these treatment records. Accordingly, remand is warranted to ensure that the duty to assist to obtain records from a Federal Agency or Department is satisfied regarding obtaining medical records from DoD. 2. Entitlement to service connection for hypothyroidism is remanded. A VA medical opinion was obtained regarding the etiology of the Veteran's hypothyroidism in December 2019. The December 2019 VA examiner specifically noted that hypothyroidism may be caused by radiation exposure. The Veteran has repeatedly asserted that he was exposed to radiation during active duty in Kuwait. The December 2019 VA examiner concluded that it was less likely than not that the Veteran's hypothyroidism was incurred in or related to a period of active-duty service, reasoning that the Veteran was first diagnosed with hypothyroidism more than three years after his period of active-duty service from February 2003 to May 2004 and noted the lack of "medical evidence" linking hypothyroidism to service. The lack of medical documentation alone is not a valid basis for a medical opinion where the Veteran's lay statements must be considered. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Veteran has stated that he began to experience symptoms of hypothyroidism during his period of active duty from February 2003 to May 2004. The examiner appears to have dismissed those lay reports based on the lack of corroborating documentation alone. Additionally, at the August 2017 Board hearing, the Veteran contended that he believed that his hypothyroidism may be secondary to his PTSD with unspecified depressive disorder, alcohol use disorder, and stimulant use disorder. No medical opinion has been obtained addressing this contention. Accordingly, remand is warranted for an addendum medical opinion that addresses the pertinent lay statements of record and adequately addresses the Veteran's contention that his hypothyroidism was caused or aggravated by his service-connected PTSD. The matters are REMANDED for the following actions: 1. Obtain any outstanding medical treatment records from the Department of Defense (DoD). If these records do not exist, or additional attempts to obtain these records would be futile, the record should be annotated to reflect such, and the Veteran should be notified. 2. Schedule the Veteran for a VA examination from a qualified VA medical professional to determine the nature and etiology of any current disability causing his symptoms of fatigue. Any necessary diagnostic tests should be conducted, and a full history of all chronic fatigue symptoms should be obtained. Following a review of the entire record, the examiner should address the following: a) Confirm whether the Veteran has a diagnosis of chronic fatigue syndrome at any point during the period on appeal. b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's claimed chronic fatigue syndrome is related to an in-service injury or disease during his period of active-duty service from February 2003 to May 2004 to include any hazardous exposure in Southwest Asia? The examiner must discuss the Veteran's lay reports of chronic fatigue syndrome symptoms since his period of service from February 2003 to May 2004. If the reviewer finds the lay reports are insufficient to support the claim, the reviewer must clearly explain why that is the case. Please be aware that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of the Veteran's hypothyroidism. Following a review of the entire record, the examiner should address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypothyroidism is related to an in-service injury or disease during his period of active-duty service from February 2003 to May 2004 to include any hazardous exposure in Southwest Asia? The examiner must discuss the Veteran's lay reports of hypothyroid symptoms since his period of service from February 2003 to May 2004. If the reviewer finds the lay reports are insufficient to support the claim, the reviewer must clearly explain why that is the case. Please be aware that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypothyroidism was caused by the Veteran's service-connected disabilities, to include his service-connected post-traumatic stress disorder (PTSD) with unspecified depressive disorder, alcohol use disorder and stimulant use disorder? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's hypothyroidism is aggravated by the Veteran's service-connected disabilities, to include his service-connected PTSD with unspecified depressive disorder, alcohol use disorder and stimulant use disorder? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals L. CHU Veterans Law Judge Board of Veterans' Appeals ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.