Citation Nr: 21076669 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-55 531 DATE: December 27, 2021 ORDER The portion of the June 11, 2021, Board of Veterans' Appeals (Board) decision that denied service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness is vacated. Service connection for a chronic disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness, is granted. FINDINGS OF FACT 1. The Board issued a June 11, 2021 decision denying service connection for CFS. 2. The Veteran has experienced chronic symptoms of fatigue since his departure from service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for vacatur of the portion of the June 11, 2021 Board decision that denied service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The criteria for service connection for a chronic disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to March 1999 and from March 2006 to September 2007. He also had a period of active duty training (ACDUTRA) from June 2010 to August 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a hearing held in January 2021. The Board issued a decision in June 2021 which, in pertinent part, denied service connection for hearing loss, chronic fatigue syndrome, a respiratory disability, irritable bowel syndrome, and an acquired psychiatric disorder, to include posttraumatic stress disorder. In October 2021, the Veteran's attorney filed a motion for reconsideration regarding all of the denials of service connection with the exception of the bilateral hearing loss. The Veteran died in November 2021. On its own motion, the Board vacates, in part, the June 11, 2021 decision, as it pertains to the denial of service connection for chronic fatigue syndrome. The issue of entitlement to chronic fatigue syndrome will be adjudicated de novo. The portion of the June 2021 Board decision denying service connection for hearing loss, a respiratory disability, irritable bowel syndrome, and an acquired psychiatric disorder, to include posttraumatic stress disorder is left undisturbed. The remanded issues consisting of service connection for gastroesophageal reflux disease with hiatal hernia, Barrett's esophagus, diabetes mellitus type II, headaches, hypertension, degenerative arthritis of the lumbar spine, obstructive sleep apnea, gastric ulcers, benign skin neoplasms bilateral legs (claimed as spots on legs), degenerative arthritis of the right and left hands, and dermatitis bilateral hands (claimed as dry, cracking hand), also remain undisturbed. Finally, to the extent that the June 2021 remand section indicated that the issues of entitlement to service connection for bilateral hand degenerative joint disease and bilateral hand dermatitis were part of the January 2021 Board hearing; such was inadvertent misstatement. The undersigned did not include those four issues at the hearing as is reflected in the hearing transcript. Rather, those matters were the subject of remand pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). VACATUR The portion of the June 11, 2021, Board of Veterans' Appeals (Board) decision that denied service connection for CFS, to include as due to an undiagnosed illness is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. As delineated above, the June 11, 2021 Board decision, in pertinent part, denied service connection for CFS, to include as due to an undiagnosed illness. The Veteran subsequently filed a motion for reconsideration. In that motion, the Veteran's attorney asserted, in pertinent part, that the Board erred in its interpretation of 38 U.S.C. §§ 1117 38 C.F.R. § 3.317 and failed to adequately consider lay and medical evidence related to symptoms of chronic fatigue. The Board agrees. As noted in the Introduction, the portion of the June 2021 Board decision denying service connection for hearing loss, a respiratory disability, irritable bowel syndrome, and an acquired psychiatric disorder, to include posttraumatic stress disorder is left undisturbed. The remanded issues consisting of service connection for gastroesophageal reflux disease with hiatal hernia, Barrett's esophagus, diabetes mellitus type II, headaches, hypertension, degenerative arthritis of the lumbar spine, obstructive sleep apnea, gastric ulcers, benign skin neoplasms bilateral legs (claimed as spots on legs), degenerative arthritis of the right and left hands, and dermatitis bilateral hands (claimed as dry, cracking hand), also remain undisturbed. Service connection for a chronic disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness is granted. 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). Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active 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, 2026, and which, 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 (a)(1). Consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a). The term medically-unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a). "Objective indications of 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. 38 C.F.R. § 3.317 (a). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. 38 C.F.R. § 3.317 (a). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317 (a). A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. 38 C.F.R. § 3.317 (a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. 38 C.F.R. § 3.317 (b). The symptoms must be manifest to a degree of 10 percent or more by December 31, 2021. 38 C.F.R. § 3.317 (a)(1)(i). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of an analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Service treatment records do not reflect a diagnosis of CFS or reflect reports of chronic fatigue symptoms. Post-service VA treatment records likewise do not reflect a clinical diagnosis of CFS. On VA Gulf War examination in September 2015, the Veteran reported a subjective sense of fatigue gradually occurring over the last five years. He reported decreased interest in certain activities, and stated that after he comes home from work, he does not have any energy to engage in leisure activities. However, he reported that he was still able to perform well at his job. He reported that he continued to take care of activities around the house (including recently injuring his ankle while cutting down limbs with a chainsaw while on a ladder). He stated that he does not have interest in engaging in activities with his wife and his children. He also reported insomnia for "a long time." He stated that although he does not sleep well, he does not fall asleep during the day. He denied any generalized muscle weakness or aches. He denied migratory joint pains, lymphadenopathy, or problems with recurring fevers. The examiner indicated that the Veteran does not now have, nor has he ever had any findings, signs, or symptoms attributable to chronic fatigue syndrome. He stated that the Veteran's subjective symptoms did not result in any periods of incapacitation, and they did not impact his ability to work. The examiner opined that the Veteran does not have a chronic disability pattern involving chronic fatigue. He does not meet the criteria for chronic fatigue syndrome, and he has not ever been diagnosed with chronic fatigue syndrome. In a July 2018 opinion, a nurse practitioner (A.C.) opined that the Veteran's report of chronic fatigue is at least as likely as not related to Gulf War Syndrome. A.C. did not indicate whether she performed a clinical examination of the Veteran; and significantly, she did not provide a diagnosis of CFS, nor indicate that any other clinician had diagnosed CFS following her review of the Veteran's medical records. In July 2021, another physician (Dr. C.) indicated the Veteran had been under his care from 2006 to 2014. Dr. C. provided a diagnosis of chronic cough and fatigue. Dr. C. stated that after a review of the pertinent records, it was his professional opinion that it is very likely that the Veteran's condition is the direct result of his prolonged exposure to the burn pit at the air base in Iraq from 2006 to 2014. For the following reasons, service connection for a chronic disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness, is granted. The Veteran had service in Southwest Asia from September 2006 to April 2007. Thus, he is a Persian Gulf Veteran. See 38 C.F.R. § 3.317(e). The Veteran has competently and credibly reported experiencing chronic symptom of fatigue since SWA service. At the outset, the Board has considered 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. The regulations define a MUCMI as "diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Here, the Veteran's reported symptoms of fatigue were not found to have met the diagnostic criteria for CFS- a MUCMI. Furthermore, no other clinician has provided a clear diagnosis of CFS. As such, presumptive service connection for CFS, as an MUCMI, is not warranted. The Board finds the findings provided by the VA examiner to be persuasive. The examiner, who is a physician, indicated in the report that he had reviewed the Veteran's claims file. The examiner also interviewed the Veteran and conducted a clinical examination. The examination report and the findings contained therein were comprehensive and based on the examiner's file review and medical training. However, as shown, the VA examiner could not attribute the signs and symptoms of chronic fatigue to a known clinical diagnosis. The remaining clinical opinions and clinical evidence does not otherwise conclusively show that the Veteran's chronic symptoms of fatigue have been found directly attributable to a known clinical diagnosis by history, physical examination, or laboratory testing. Resolving reasonable doubt in the Veteran's favor, his reported symptoms of fatigue have been shown to persist for more than six months. Moreover, they reasonably appear to have manifested to a degree of at least 10 percent. In view of the Veteran's documented SWA service and his competent and credible report of medically unexplained fatigue symptoms persisting for more than six months, his chronic fatigue symptoms may be considered a manifestation of an undiagnosed illness. Therefore, resolving all reasonable doubt in the Veteran's favor, service connection for a disability manifested by symptoms of chronic fatigue is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.