Citation Nr: 21077275 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-51 379 DATE: December 29, 2021 REMANDED Service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI), or as secondary to other service-connected disabilities, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 2000 to July 2006 and has confirmed service in Southwest Asia during the Persian Gulf War. This claim is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision. 1. Service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness or MUCMI, or as secondary to other service-connected disabilities, is remanded. The prior remand specifically directed an examiner to indicate whether the Veteran has either chronic fatigue syndrome or another disability manifested by chronic fatigue, "to include as due to an undiagnosed illness or [MUCMI]; or as secondary to service-connected costochondritis and bilateral knee disabilities." The October 2021 VA opinion obtained on remand indicates the Veteran does not meet the diagnostic criteria for chronic fatigue syndrome because it is a diagnosis of exclusion and the Veteran "has multiple potential etiologies for his fatigue symptoms," including non-service-connected OSA and medications that treat service-connected symptoms (like anxiety or depression). For that reason, the examiner also indicates they were unable to determine whether the Veteran had a disability manifested by chronic fatigue, noting that the Veteran's fatigue was "most likely symptoms of multiple other conditions and cannot simply be diagnosed as CFS." However, the examiner does not address the Board's questions on secondary service connection, despite their own explanation suggesting that other service-connected conditions (including, but not limited to, costochondritis and bilateral knee disability) or associated medications may contribute to his current fatigue. They also do not address whether the separate non-service-connected diagnosis for OSA (which contributes to his overall fatigue) might be related to service, secondary to other service-connected conditions, or otherwise inextricably intertwined with such conditions in terms of resultant symptoms or impairment. Moreover, even assuming arguendo that the examiner could not determine whether the Veteran has a disability manifested by chronic fatigue, a crucial, unanswered question here is whether the Veteran's fatigue is, itself, productive of functional impairment such that it might be considered a disability for VA purposes regardless of diagnosis. See Saunders v. Wilkie, 886 F.3d 1356, 1367-8 (Fed. Cir. 2018) (holding that pain, alone, can constitute a disability if it is shown to result in functional impairment). The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Forward the entire record to an appropriate VA physician for an addendum opinion clarifying the nature and likely etiology of the Veteran's claimed fatigue. If a full physical or telehealth examination would be helpful in assessing this condition, one should be scheduled. Based on a review of the record and, if conducted, an examination of the Veteran, the examiner must respond to the following: (a.) Please identify all symptoms associated with the Veteran's claimed fatigue disability and indicate whether: i. such symptoms cause functional impairment regardless of whether they can be separately diagnosed; and ii. such symptoms or resultant functional impairment is distinguishable from that associated with other already service-connected disabilities (e.g., somatic symptoms disorder, depressive disorder, post-traumatic costochondritis deformity, tinnitus, fibromyalgia, left knee patellofemoral syndrome, right knee patellofemoral syndrome, lumbosacral strain, or irritable bowel syndrome). (b.) If both of the above conditions are met, the examiner should also answer the following questions: i. Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the claimed fatigue disability is related to service in Southwest Asia or any potential exposures therein (e.g., burn pits and particulate matter, environmental hazards, etc.)? ii. Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the claimed fatigue disability is CAUSED BY OR PROXIMATELY DUE TO another service-connected disability OR associated medications (e.g., somatic symptoms disorder, depressive disorder, post-traumatic costochondritis deformity, tinnitus, fibromyalgia, left knee patellofemoral syndrome, right knee patellofemoral syndrome, lumbosacral strain, or irritable bowel syndrome)? In so finding, the examiner should consider BOTH the likelihood that his claimed fatigue disability would have developed ABSENT his other service-connected conditions AND whether its development would be a reasonably foreseeable outcome given his other service-connected conditions. iii. Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the claimed fatigue disability is AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION TO ANY DEGREE AND FOR ANY AMOUNT OF TIME) BY another service-connected disability OR associated medications (e.g., somatic symptoms disorder, depressive disorder, post-traumatic costochondritis deformity, tinnitus, fibromyalgia, left knee patellofemoral syndrome, right knee patellofemoral syndrome, lumbosacral strain, or irritable bowel syndrome)? (c.) Finally, the examiner should opine as to whether the Veteran's documented obstructive sleep apnea (OSA), which the prior examiner associated with complaints of fatigue, is distinguishable in terms of its symptoms or resultant impairment from his other service-connected disabilities. (d.) If so, is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that his OSA is: i. related to his military service, to include any relevant exposures during Persian Gulf service (e.g., particulate matter, environmental hazards, etc.); ii. CAUSED BY OR PROXIMATELY DUE TO another service-connected disability (e.g., somatic symptoms disorder, depressive disorder, post-traumatic costochondritis deformity, tinnitus, fibromyalgia, left knee patellofemoral syndrome, right knee patellofemoral syndrome, lumbosacral strain, or irritable bowel syndrome); OR iii. AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION TO ANY DEGREE AND FOR ANY AMOUNT OF TIME) BY another service-connected disability (e.g., somatic symptoms disorder, depressive disorder, post-traumatic costochondritis deformity, tinnitus, fibromyalgia, left knee patellofemoral syndrome, right knee patellofemoral syndrome, lumbosacral strain, or irritable bowel syndrome) In so finding, the examiner should consider whether other service-connected disabilities directly aggravate his OSA OR whether the fatigue from his OSA is worse than it otherwise would be absent his other service-connected conditions. All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.