Citation Nr: 21008151 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-04 493 DATE: February 11, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. FINDING OF FACT Evidence of record throughout the entire appeal period fails to demonstrate that the Veteran has a present diagnosis of CFS and his claimed signs and symptoms of CFS were shown to be attributable to his already service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), sleep apnea, post-concussive headaches, and fibromyalgia. CONCLUSION OF LAW The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 4.88a (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to July 1992 with service in Southwest Asia from September 1990 to March 1991. His awards include the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. In an August 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection for myositis (claimed as fibromyalgia and joint pains), assigning a noncompensable evaluation, effective June 17, 2013. A September 2015 rating decision increased the evaluation of fibromyalgia (previously rated as myositis (also claimed as CFS)) to 40 percent, effective July 16, 2014. The Board remanded the increased rating claim for fibromyalgia for additional development later that same month. The AOJ then bifurcated the issue of entitlement to service connection for CFS from fibromyalgia and denied service connection for CFS in a November 2015 rating decision. In August 2018, the Veteran again sought entitlement to service connection for CFS. In an August 2018 rating decision, the AOJ denied reopening the claim for service connection for CFS. In July 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. In November 2019, the Board remanded this matter for additional development. The Board notes that the Judge who conducted the July 2019 hearing is not currently available to participate in this decision. In September 2020, the Veteran testified at another Board hearing at the AOJ before the undersigned VLJ. A transcript of the hearing is associated with the electronic claims file. Testimony on the service connection issue for CFS was again taken at this hearing. Entitlement to service connection for CFS The Veteran has asserted that his claimed CFS was causally related to his active service in the Southwest Asia theater of operations during the Persian Gulf War. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). As the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(1). There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is a condition that, by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illness is defined by a cluster of signs or symptoms and specifically includes CFS, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A 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)(2)(ii). A diagnosis of CFS for VA purposes must meet the three requirements (and sub-requirements) set forth in 38 C.F.R. § 4.88a. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for CFS. Service treatment records did not reveal any complaints, treatment, or diagnosis of CFS. The Veteran has been awarded VA disability compensation benefits for the following disabilities: PTSD with panic disorder, major depressive disorder with anxious distress and TBI; sleep apnea associated with chronic sinusitis; fibromyalgia (previously rated as myositis (also claimed as CFS)); post-concussive headaches associated with residuals of TBI; tinnitus; chronic sinusitis; rhinitis; tinea with painful scarring; erectile dysfunction; otitis media; irritable bowel syndrome (IBS); and scars of the dorsum of the each foot. Post-service VA laboratory results dated in April 2015 revealed a very low vitamin D level. It was noted that low vitamin D levels can cause easy tiredness/falls. In an August 2015 VA fibromyalgia examination report, the examiner marked that fibromyalgia signs and symptoms included widespread musculoskeletal pain, stiffness, and fatigue. Frequency of fibromyalgia symptoms was noted to be constant or nearly constant. Discussing functional impact, the examiner indicated that fibromyalgia pain symptoms affected the ability to focus/concentrate on work tasks and perform physical activities. In an August 2015 VA treatment note, the Veteran reported that he continued to feel exhausted during the day which he believed was due to CFS. The provider explained that sleep apnea could cause depression and fatigue. It was noted that the Veteran recognized there were multiple etiologies to his sleep/exhaustion issues. It was further indicated that the provider sent him for a non-VA consult concerning CFS after noting that the Veteran’s concerns of CFS were certainly possible, especially given co-morbidities of sleep apnea and fibromyalgia. In the September 2015 rating decision, the AOJ acknowledged that the Veteran had also filed a claim for CFS, but noted that the symptoms of fatigue, migratory joint pain, and generalized muscle aches and weakness had already been contemplated in his evaluation for fibromyalgia. Based on VA regulations, the evaluation of the same manifestations under different diagnoses is not permitted. An October 2015 VA neuropsychological screening evaluation detailed complaints of difficulty with balance, coordination, dizziness, numbness, tingling, and fatigue. In a February 2016 VA treatment note, the Veteran reported the following symptoms of hyperglycemia: frequent urination, blurry vision, thirst and fatigue. Additional VA treatment records dated in March 2016 reflected complaints of poor sleep, though he suggested that this could be due a combination of unmanaged sleep apnea, fibromyalgia and chronic fatigue. Evidence of record contains correspondence dated in June 2016 between the Veteran and VA treatment providers. At that time, the Veteran sought a rheumatology consult but was informed that CFS was variable and uncertain, and that the condition was primarily managed rather than cured. It was noted that only two treatments, cognitive behavioral therapy and graded exercise therapy, had demonstrated reproducible evidence for their efficacy in ambulant patients. The Veteran was referred to mental health. Additional VA treatment records dated in 2017 detailed complaints of persistent fatigue. In March 2017, the Veteran reported experiencing depressive symptoms that included increased sleep, fatigue, amotivation, anhedonia, low stress tolerance, irritability, lack of desire, and isolation/withdrawal from others. In May 2017, the Veteran was continuing to struggle with symptoms of depression and fatigue. He asserted that his medication was leading to increased fatigue, and in turn increased inactivity. In a September 2017 rheumatology consult, the provider noted that there was some degree of widespread pain in muscles but not the usual symmetric, non-specific pain one sees with fibromyalgia. It was indicated that the Veteran did have chronic fatigue, sleep disruption, and IBS symptoms. The provider listed possible assessments including spondyloarthritis, radiculopathy, or spinal stenosis. It was noted that chronic widespread pain, often not having the typical features of fibromyalgia, was quite common in persons who had experienced TBI or who have PTSD. In a December 2018 VA fibromyalgia examination report, the examiner marked that fibromyalgia signs and symptoms included widespread musculoskeletal pain, stiffness, sleep disturbances, and fatigue. Frequency of fibromyalgia symptoms was noted to be constant or nearly constant. The examiner indicated that there was a worsening of the Veteran’s symptoms however no change to the service-connected diagnosis and no additional diagnoses were rendered. Fatigue was also noted as causing functional impact in connection with the Veteran’s service-connected sleep apnea in an additional December 2018 VA examination report. In a February 2019 VA medical opinion, the examiner opined that the claimed CFS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Based on his review of the available medical evidence, the examiner concluded that the Veteran did not have a diagnosis of CFS as a separate diagnosis. The examiner highlighted that the Veteran’s condition did not meet the criteria for a diagnosis of CFS, as his chronic fatigue was more likely due to and combined symptoms of his already service-connected PTSD, sleep apnea, and fibromyalgia. Thereafter, the examiner determined that the Veteran did not have six or more of the criteria for CFS that have not been attributed to other diagnosed conditions. There was no evidence in the available record that documented the Veteran’s fatigue as having an acute onset or that he has had low grade fevers, non-exudative pharyngitis, palpable or tender cervical or axillary lymph nodes. As to the other criteria, other conditions have been diagnosed that were more likely the cause of these criteria. His fibromyalgia was listed to likely be the cause of any generalized muscle aches, migratory joint pains, and may contribute to sleep disturbance. Sleep disturbance could also be attributed to PTSD and sleep apnea. His headaches were attributed to his TBI in the evidence of record and there was no evidence of a different type of headache likely due to CFS. Neuropsychological symptoms were found to be attributable to PTSD. VA treatment notes dated in 2019 showed continued complaints of fatigue. In March 2019, the Veteran complained of bilateral swollen lymph nodes in his neck since age 21. He reported that he rarely gets more than three hours of sleep at night, suffers from headaches, and has fatigue and pain after exercise. The Veteran also submitted numerous medical treatise articles discussing CFS. In April 2019, he was sent for a VA sleep medicine consult. The impression was history of moderate sleep apnea, dyssomnia, and chronic fatigue. The provider informed the Veteran that CFS was a diagnosis of exclusion, that the sleep portion was just one aspect of fatigue, and that the sleep clinic did not make the diagnosis of CFS. It was recommended that the Veteran bring in his CPAP for evaluation and to repeat a sleep study to assure that sleep apnea was well controlled. The Veteran declined, indicating that he did not believe sleep apnea was a contributor to his fatigue. Later that same month, the War Related Illness & Injury Study Center in Washington, DC (WRIISC) completed the consult the Veteran’s provider submitted for him. WRIISC was identified as a second opinion team for veterans and clinicians who need further review of undiagnosed symptoms. The Veteran was referred to WRIISC after requesting evaluation of CFS. WRIISC agreed with the recommendations by the local VA sleep clinic, including evaluating if the Veteran’s moderate OSA was controlled and addressing his poor sleep. An appropriate local work-up of his fatigue was indicated prior to any further consideration by WRIISC. In a July 2019 treatment note, the Veteran complained of sinus pressure/drainage as well as exhaustion he attributed to CFS, stating that he typically had a low-grade fever at baseline due to his chronic fatigue. He was evaluated for chest discomfort, bilateral ear pain, cough, and fatigue. In a February 2020 VA CFS examination report, the examiner concluded that the Veteran did not currently have CFS. However, the examiner clearly documented the Veteran’s asserted nearly constant symptomatology including the following: acute onset CFS; debilitating fatigue reduced daily activity level to less than 50 percent of pre-illness for six months or longer; reported signs and symptoms (debilitating fatigue, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generative muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, migratory joint pain, neuropsychologic symptoms, and sleep disturbance); cognitive impairment including inability to concentrate and forgetfulness; and symptoms restrict routine daily activities almost completely and may occasionally preclude self-care. Thereafter, the examiner concluded that although the Veteran reported multiple symptoms in the CFS criteria, there was not evidence of a total of six CFS symptoms that were not related to another diagnosis or shown in clinical evidence of record (for example, no documented adenopathy, low grade fevers, or pharyngitis). In an attached February 2020 VA medical opinion, the examiner referenced multiple pieces of evidence in the claims file and discussed her detailed review of the record. Thereafter, the examiner opined that the claimed CFS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that the Veteran’s condition did not meet the criteria for a diagnosis of CFS. It was noted that the Veteran’s chronic fatigue was more likely due to and combined symptoms of his already service-connected PTSD, sleep apnea, and fibromyalgia. In the cited rationale, the examiner found that there was no evidence in the available record that documented the Veteran’s fatigue as having an acute onset. Although he reported multiple CFS symptoms, the examiner highlighted that there was no evidence in the electronic claims file that he has had low grade fevers, non-exudative pharyngitis, and/or palpable or tender cervical or axillary lymph nodes. The examiner indicated that the other conditions that the Veteran had been diagnosed with were more likely the cause of his generalized muscle aches or weakness, headaches, and migratory joint pain. His fibromyalgia was likely the cause of any generalized muscle aches, migratory joint pains, and may contribute to sleep disturbance. His migratory joint pains could also be related to mild degenerative joint disease in multiple joints (lumbar spine, bilateral hands and feet, and bilateral hips as documented on X-rays). His sleep disturbance could also be attributed to his PTSD and sleep apnea. His headaches have been attributed to his TBI and there was no evidence in the record of a different type of headache likely due to CFS. His reported neuropsychological symptoms of not being able fully concentrate to complete things, trouble with some short-term memory, and feeling foggy all day were noted to be attributable to his diagnosed PTSD. The Board finds that the current disability element of the claim is not met for CFS. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence of record, including the findings of the February 2020 VA examiner, does not show that the criteria for CFS for VA purposes was met. See 38 C.F.R. § 4.88a (2020). In addition, the Board finds that the February 2020 VA examiner’s opinion that the Veteran’s reported symptoms were attributable to his already service-connected PTSD with TBI, sleep apnea, post-concussive headaches, and fibromyalgia rather than CFS was clear, unequivocal, and based on the relevant information of record, including the Veteran’s lay statements and hearing testimony, service treatment records, post-service treatment records, and diagnostic testing. Moreover, the examiner’s explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the February 2020 VA examiner’s conclusion that the Veteran does not have CFS is highly persuasive and probative evidence. Based on the foregoing, the Board finds that the Veteran does not have a current diagnosis of CFS. Although CFS is a medically unexplained chronic multisymptom illness that may be presumptively service connected to the Veteran’s Persian Gulf War service, CFS is not shown in this case. Additionally, while an undiagnosed illness consisting of the Veteran’s symptoms may also be presumptively service connected to that service, the February 2020 VA examiner persuasively explained that the symptoms attributed by the Veteran to CFS are instead referable to his already service-connected PTSD with TBI, sleep apnea, post-concussive headaches, and fibromyalgia. Thus, they are not part of an undiagnosed illness. Here, the Veteran’s claimed signs and symptoms of CFS have been associated with service-connected disabilities (either as qualifying chronic disabilities under 38 C.F.R. § 3.317 or otherwise) for which he is already receiving compensation; the applicable diagnostic codes contemplate the symptomatology in assigning evaluations for compensation purposes, even if not specifically listed in the characterization of the disability (e.g., fibromyalgia considers the effects of fatigue). See 38 C.F.R. §§ 4.71a, 4.97, 4.124a, 4.130, Diagnostic Codes 5025, 6847, 8100 and 9411. As the Veteran is already service-connected for PTSD with TBI, sleep apnea, post-concussive headaches, and fibromyalgia, it appears that he is already compensated for the symptoms claimed for this issue. The Rating Schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims (Court) has held that pyramiding is disfavored “unless the regulation expressly provides otherwise.” Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) and 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition). The statements from the Veteran are competent evidence as to observable symptomatology, including pain, fatigue, and loss of concentration. See Barr, 21 Vet. App. at 307. However, the statements regarding the existence and etiology of the Veteran’s claimed CFS draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the existence and etiology of the Veteran’s claimed CFS falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The criteria to award entitlement to service connection for CFS have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for CFS, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.