Citation Nr: 21008106 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-19 673 DATE: February 11, 2021 ORDER Entitlement to service connection for chronic fatigue and joint pain is denied. FINDING OF FACT The evidence shows that at no point during the period on appeal, did the Veteran have any diagnosable chronic fatigue disability capable of VA compensation, nor are the Veteran’s symptoms of fatigue and joint pain etiologically related to his active duty service. The Veteran’s joint pain/fatigue does not constitute an undiagnosed illness or medically unexplained chronic multisymptom illness that is the result of service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue and joint pain have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to April 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs. The Board notes that the Veteran was scheduled for a January 2017 videoconference hearing and confirmed via phone call that he would attend the hearing. However, the Veteran was deemed a no-show for the hearing and to date, the Veteran has not requested that the hearing be rescheduled. As such, the Board finds that the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). This case was most recently remanded by the Board in June 2020 for further development. That development having been completed to the extent possible, the appeal is now once again before the Board. Entitlement to service connection for chronic fatigue and joint pain Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends he has joint pain and chronic fatigue that is related to service in the Persian Gulf War. The Veteran specifically references Gulf War Syndrome in his November 2013 Notice of Disagreement. The Veteran was afforded VA examinations in September 2019 and February 2020 to determine the nature and etiology of his reported joint pain, with an addendum opinion issued in July 2020. First, the issue of chronic fatigue has been combined with the issue of joint pain in the arms, legs, and elbows. Chronic fatigue cannot be service-connected on its own because it fails the first requirement for service connection, the existence of a present disability. The September 2019 examiner opined that fatigue is “more likely a symptom of the numerous conditions that the veteran has developed. Any and all of these conditions would be likely to trigger significant fatigue. Some of these disease processes include CPPD, Headaches, Major Depressive Disorder, PTSD, Obesity, OSA, Gastroparesis.” The examiner further explained that it would be impossible to determine to which level each disease may create or add to fatigue. As fatigue is not a stand-alone condition, it cannot be separately service-connected because there is not current diagnosis for chronic fatigue. Because chronic fatigue may be part of a medically unexplained chronic multisymptom illness, the Board has considered whether service connection is warranted in this manner. Persian Gulf Multisymptom Illness The Veteran has also stated that he has arthritis due to his tour of duty in the Persian Gulf. See July 2013 Correspondence. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness that 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, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times, and currently ends December 21, 2021. See 81 Fed. Reg. 71382 (October 17, 2016). A qualifying chronic disability means a chronic disability resulting from (A) an undiagnosed illness or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317(a)(2)(i). 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 are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Examples of medically unexplained chronic multi-system illness that are defined by a cluster of signs or symptoms include: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases), such as irritable bowel syndrome. Id. Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). “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)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Here, the Board finds that the Veteran does not meet the criteria for an undiagnosed illness or medically unexplained chronic multi-system illness. As described by the February 2020 VA examiner, the Veteran’s joint pain was attributable to known diagnoses, including spondyloarthritis (SpA) and calcium pyrophosphate dihydrate crystal deposition disease (CPPD), and that those disabilities were not related to service. The examiner explained that SpA is an autoimmune disease associated with genetic markers. The July 2020 examiner was asked to opine on whether CPPD is related to service. The examiner stated that CPPD is an auto-immune disorder, like SpA, and that the exact etiology is unknown, but there is an association with the HLA-B27 gene. Congenital or developmental “defects” cannot be service connected. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such “defects”, because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). The July 2020 examiner concludes that the joint pain experienced by the Veteran is more likely related to factors other than military service. The examiner was asked to specifically address the Veteran’s internal derangement of the right knee and early osteoarthritis noted in May 2017. The examiner explained, “The aging process, massive weight gain, and activities of daily living demonstrate progressive osteoarthritis, more so on weight bearing joints, especially in this Veteran with added joint erosion due to SpA.” The Board finds that the noted osteoarthritis is not directly related to service, although the Veteran’s STRs document ankle and knee injuries. The examiner explained, “Osteoarthritis is due to a variety of personal, genetic, nutritional, familial and life-style factors, more advanced in obese population in weight bearing joints. There is no credible evidence to demonstrate that old minor ankle and knee injuries may be the proximate causes of osteoarthritis in this Veteran when there is clear and unmistakable evidence that massive obesity and SpA requiring high risk medication for sure do.” The examiner could not establish a nexus between the injuries sustained in service and the Veteran’s diagnosed osteoarthritis. The examiner concurs with the Veteran’s rheumatologists and neurologists which have concluded that the Veteran’s condition is SpA, an autoimmune disorder. The examiner noted “Osteoarthritis, internal derangement and fibromyalgia have a different pathophysiology, pathogenesis and these conditions are independent, distinctly diverse conditions to the ones the Veteran is diagnosed with.” The examiner also reconciled the Veteran’s history of right ankle and bilateral knee injuries requiring aspiration in service, and the April 2013 and November 2019 examiners' findings that the Veteran has joint issues secondary to traumatic injuries. The examiner explained that those injuries were minor and the symptoms resolved. It was also noted that the Veteran suffered a right knee contusion in 1998 and left knee contusion in 1996. Contusions were managed, knees aspirated and resolved with no residuals. It was further explained that “sprains, contusions and other soft tissue conditions are distinctly independent of SpA. The Veteran's current symptoms in ankles and knees are typical exacerbations worsening toward the end of the two-week period between Humira injections, and unrelated to any minor incident he was involved in service.” The examiner concluded that there is insufficient medical evidence to speculate that Veteran's soft-tissue in-service injuries are proximately responsible for an autoimmune SpA multi-joint disorder. Finally, the examiner stated that “examination findings or other evidence does not objectively demonstrate signs or symptoms of an undiagnosed illness or a medically unexplained multi-symptom illness that includes objective signs and symptoms such as fatigue, headache, muscle pain, joint pain, neurological signs, neuropsychological signs, respiratory signs, gastrointestinal signs, and abnormal weight loss that cannot be attributed to known medical diagnoses. Instead, as alluded to above, his symptoms are due to chronic pain, due to SpA and chronic pain associated with this condition.” This medical opinion is highly probative because it was based upon a thorough review of the claims file, medical literature, and well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran’s belief that his joint pain is the result of military service or a medically unexplained multisymptom illness. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as a layperson, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau, 492 F.3d 1372. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran’s joint pain/fatigue and his military service, including no competent medical evidence establishing a link between his condition and the Persian Gulf War. Therefore, the Board finds that a preponderance of the medical evidence that is of record weighs against the claim for service connection for joint pain and chronic fatigue. For these reasons, 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.