Citation Nr: 21007802 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-32 926 DATE: February 10, 2021 ORDER Service connection for fatigue, joint pain, or other symptoms due to undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI) is denied. REMANDED Entitlement to increased ratings for degenerative joint disease (DJD) of the right hip are remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had fatigue, joint pain, or other symptoms due to undiagnosed illness or MUCMI at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for fatigue, joint pain, or other symptoms due to undiagnosed illness or MUCMI have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to July 1975 and from January 1980 to January 1997, including service in the Southwest Asia Theater of the Persian Gulf. In February 2018, the Board issued a decision that, in pertinent part, denied service connection for a disability manifested by fatigue and joint pain, to include as due to an undiagnosed illness; and denied a rating in excess of 10 percent for DJD of the right hip. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Board’s decision as to these two issues was vacated pursuant to a November 2018 Joint Motion for Remand (JMR). The parties agreed that the Board’s denial of service connection, which was limited to fatigue and joint pain, should also have considered entitlement to additional signs and symptoms of MUCMI such as headache, muscle pain, neuropsychological signs, or symptoms involving the respiratory system. Regarding the rating of right hip arthritis, the parties agreed that the matter related to an estimate of additional loss of motion, if any, during a flare-up or after repeated use over time needed to be addressed. The Court granted the JMR and remanded the case to the Board. The case was then remanded for further development in May 2019. This has been accomplished and the issue has been returned for further appellate consideration. Entitlement to service connection for fatigue, joint pain, or other symptoms due to MUCMI 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). 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 shown 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, as identified in 38 C.F.R. § 3.309(a), 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). Service connection may also 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). The Veteran’s service personnel records reflect Persian Gulf War service. Service connection may be granted to a Persian Gulf War Veteran who exhibits objective indications of a “qualifying chronic disability.” 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 317(a)(1). A qualifying chronic disability is currently defined as either an undiagnosed illness or a MUCMI defined by a cluster of signs or symptoms, which includes chronic fatigue syndrome (CFS). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317. The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2021. 38 U.S.C. § 1117(a)(1)(B); (b)(2); 38 C.F.R. § 3.317 (a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). 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)(2)(ii)(3). 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. 38 C.F.R. § 3.317(a)(2)(ii)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a CM, but are not limited to, fatigue and muscle and joint pain. 38 U.S.C. §§ 1117(g)(1), (4), (5); 38 C.F.R. § 3.317 (b)(1), (4), (5). Entitlement to service connection is possible for both (1) chronic fatigue syndrome as a MUCMI defined by a cluster of signs or symptoms and (2) fatigue as a signs or symptom which may be a manifestation of undiagnosed illness or MUCMI. The Veteran contends that he has a disability manifested by fatigue and other symptoms such as headache, muscle pain, neuropsychological signs, or symptoms involving the respiratory system that may be considered symptoms of a MUCMI. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board notes that 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). The Board concludes that, after extensive review of the evidence of record, the Veteran does not have a current diagnosis of a disability manifested by fatigue or other symptoms that may be attributable to an undiagnosed illness or an MUCMI such as CFS, and has not had such a disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Review of the record shows that on examination at retirement from service the Veteran had no complaint or manifestation of fatigue. Similarly, on Gulf War Examination conducted in November 1996, the Veteran had complaints of joint pain, shortness of breath and stomach pain, but no complaints of fatigue and a general medical examination conducted by VA in April 1997 was considered normal. Another examination was conducted by VA in February 2010. The Veteran reported having been diagnosed with CFS in 1990 with complaints of migrating joint pain, low grade fever, frequent sore throat, anxiety, generalized muscle aches or weakness, fatigue, sleep disturbance, headaches, joint pain, dizziness, loss of balance, irregular heartbeat, breathing problems, chills, skin rashes, heel pain, and heartburn. After examination and review of the record, the examiner opined that the Veteran did not have a diagnosis of CFS, because there was no pathology to render a diagnosis. It was noted that the Veteran did not meet the diagnostic criteria for CFS in that he had neither of the primary criteria or at least six of the ten secondary criteria. The examiner stated that the primary causes of the Veteran’s complaints were due to degenerative joint disease of the spine, shoulders, hips, knees and feet. Therefore, no diagnosis was warranted for CFS. Additional examinations were conducted by VA in December 2019. Regarding the claimed CFS, the examiner first noted that the Veteran’s fatigue had been helped by using a CPAP for treatment of sleep apnea. The examiner then went on to conclude that the Veteran did not meet the diagnostic criteria for a diagnosis of this syndrome as the fatigue had been of gradual onset and it had not reduced his daily activities to less than 50 percent of the usual level for the last six months. On general Gulf War examination, the examiner was to evaluate the Veteran for any chronic disability pattern that could be related to his Southwest Asia service. After noting that the Veteran had claimed a disability pattern related to joint pain, anxiety, muscle aches or weakness, fatigue, headaches, breathing problems, irregular heartbeat, heartburn and skin rashes, the examiner noted that the Veteran’s eczema, gout and GERD represented conditions with a clear and specific etiology and diagnosis and, therefore were less likely than not related to exposure to environmental hazards experienced during military service in Southwest Asia. The Veteran also did not meet the criteria for CFS, and the symptom of fatigue failed to meet the criteria of a specific diagnosis and did not meet the criteria of an undiagnosed illness, a diagnosable but medically unexplained etiology, or a MUCMI. Therefore, the examiner opined that the fatigue symptom was less likely than not related to a specific exposure event experienced by the Veteran’s service. The examiner explained that the symptom of fatigue was non-specific and did not merit a diagnosis. Regarding the symptoms of muscle ache or weakness, headaches, breathing problems, or irregular heartbeat, the examiner stated that there were no objective findings to explain these symptoms, so they did not constitute an undiagnosed illness, or a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Finally regarding the claimed condition of “muscle aches or weakness”, the examiner stated that the Veteran did not meet the diagnosis for fibromyalgia. The Veteran was afforded another Gulf War VA examination in February 2020. After examination, the examiner stated that there were no general medical problems other than those discussed on the other specialty evaluations that had been performed. These included psychiatric and musculoskeletal examinations that found specific diagnoses. In a July 2020 addendum to the VA examinations, an examiner was requested to render an opinion regarding whether the Veteran’s symptoms developed during or after his Persian Gulf War service and whether they were at least as likely as not attributable to either a diagnosed disease, an undiagnosed illness, or a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI). The examiner detailed each of the Veteran’s diagnosed conditions such as anxiety, joint pain due to gout or due to osteoarthritis, skin disease such as eczema or contact dermatitis, and gastroesophageal reflux disease (GERD). The examiner opined that for the claimed muscle aches or weakness, fatigue, headaches, breathing problems, and irregular heartbeat, the Veteran did not meet the criteria or a diagnosis of CFS, headache syndrome, respiratory condition, cardiac condition or fibromyalgia. For these claimed conditions, the Veteran described gradual onset of fatigue, intermittent frontal headaches, intermittent dyspnea, irregular heartbeat, muscle aches or weakness. These symptoms were not considered to be a disease or illness in themselves. It was noted that the Veteran’s medical records were silent for diagnoses of CFS, fibromyalgia, headache syndrome, or diagnosed respiratory or cardiac conditions. Furthermore, the Veteran’s physical examination and recent diagnostic data were normal. The examiner stated that a complaint of fatigue, headaches, dyspnea, irregular heartbeat, muscle aches or weakness with a normal physical examination and diagnostic findings was not an undiagnosed illness or a MUCMI. As such, it was less likely than not that the complaints of fatigue, intermittent headaches, dyspnea, irregular heartbeat, muscle aches or weakness were related to a specific exposure event experienced in Southwest Asia. The several VA examiners who evaluated the Veteran have determined that, while he has claimed to experience subjective symptoms of fatigue, intermittent headaches, dyspnea, irregular heartbeat, muscle aches or weakness; he has not had any manifestations that may be considered to be due to undiagnosed illness or MUCMI related to his service in Southwest Asia. This includes possible CFS or fibromyalgia. While the Veteran believes he has a current symptom that should be characterized as an undiagnosed illness or MUCMI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Also, although the Veteran has reported being given a diagnosis of CFS, he has not submitted treatment records to support that claim. Consequently, the Board gives more probative weight to the competent medical evidence, which, on several occasions, have indicated no evidence of an undiagnosed illness manifested by symptoms of fatigue, intermittent headaches, dyspnea, irregular heartbeat, muscle aches or muscle weakness; and there is no evidence of a MUCMI. Moreover, there is no medical opinion in the record that supports such a finding. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for fatigue, joint pain, or other symptoms due to undiagnosed illness or MUCMI, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to increased ratings for DJD of the right hip is remanded In May 2019, the Board remanded the issue of entitlement to a rating in excess of 10 percent for right hip DJD for an additional VA examination. At that time, the Veteran’s right hip DJD was rated under Diagnostic Code 5010. Subsequent to the additional development completed, in October 2020, the Veteran was issued a rating decision that granted service connection for flexion of right hip DJD and for limitation of right hip, DJD. Although it appears the Agency of Original Jurisdiction may have been attempting to recharacterize and award a separate rating for the original service-connected right hip disability to account for the limitations the Veteran experiences with both flexion and extension in his right hip, what has resulted is that the Veteran is now rated twice for limitation of flexion and extension of the right hip. Specifically, a review of the October 2020 rating decision codesheet shows the Veteran is now in receipt of a 10 percent rating under Diagnostic Codes 5010-5251 for DJD, extension right hip; a 10 percent rating under Diagnostic Codes 5003-5253 for limitation of right hip, DJD associated with DJD, extension right hip; and a 30 percent rating from August 1, 2019, and a 0 percent rating from December 16, 2019, under Diagnostic Codes 5003-5252 for flexion of right hip associated with DJD, extension right hip. This confusion must be remedied prior to effective appellate consideration. As such, the issue is remanded for clarification. The matters are REMANDED for the following action: The various ratings awarded for the Veteran’s right hip DJD must be reviewed with clarification provided as to the basis for the separate ratings assigned to ensure that the same symptoms from his right hip disability have not been evaluated under various diagnoses (see 38 C.F.R. § 4.14, avoidance of pyramiding) and to ensure that each separate rating that has been properly assigned may be evaluated under the appropriate diagnostic code. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.