Citation Nr: 21009435 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-62 819 DATE: February 22, 2021 ORDER The appeal as to the claim of entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness, and to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is denied. REMANDED The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected PTSD and/or hypertension, is remanded. FINDING OF FACT The Veteran does not have a current CFS condition that manifested during, or as a result of, active service, and is not due to the service-connected PTSD or an undiagnosed illness or other multi-symptom illness. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for CFS (claimed as an unexplained chronic multi-symptom illness), to include as due to service-connected PTSD and/or an undiagnosed illness, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1980 to July 2000 with service in Southwest Asia (SWA). His service was under honorable conditions. The matters are on appeal from a July 2017 rating decision. Service Connection – Legal Criteria Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. In the absence of proof of a present disability there can be no valid claim, as it is the cornerstone of a claim for VA disability compensation. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent or more within one year from the date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, and (ii) present manifestations of the same chronic disease or b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The use of continuity of symptomatology to establish service connection is limited to only those diseases listed at 38 C.F.R. § 3.309 (a). Under 38 U.S.C. § 1117 (a)(1) (2012), compensation is warranted for a Persian Gulf War Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the SWA Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317 (a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the SWA Theater of operations). See 77 Fed. Reg. 63225 (2012). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a), (b). Because the Veteran served in SWA during his active service, he is a Persian Gulf Veteran within the meaning of the applicable statute and regulation. The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317 (a)(2). "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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (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). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for CFS, to include as secondary to the service-connected PTSD and to include as due to an undiagnosed illness. The Veteran contends that he is entitled to service connection for CFS, to include as due to an undiagnosed illness, and/or to include as due to a service-connected disability. Service treatment records are devoid of complaints or diagnosis related to fatigue. Specifically, the November 1979 induction examination report is negative for complaints of, or a diagnosis of CFS. The February 2000 separation examination report is negative for complaints of, treatment for, or a diagnosis related to fatigue, to include CFS. Post-service VA and private treatment records include a May 2000 VA general examination report that notes the Veteran’s multiple complaints of other health issues; the report is negative for complaints of, or a diagnosis related to fatigue. Private treatment records dated from September 2001 to April 2005 are negative for complaints of, treatment for, or a diagnosis related to fatigue. VA outpatient treatment records dated from July 2005 to January 2008 are negative for complaints of, treatment for, or a diagnosis related to fatigue. A June 2010 private treatment record shows the Veteran denied symptoms of fatigue. Private treatment records dated in July 2010 through May 2014 are negative for complaints or, treatment for, or a diagnosis related to fatigue. The Veteran’s initial complaint of fatigue is noted in a July 2014 VA outpatient treatment record, 14 years after his separation from active service. VA outpatient treatment records dated from August 2015 through December 2015 notes the Veteran’s report of fatigue, associated with treatment sought for a sleep disorder. A September 2016 VA CFS examination notes the Veteran’s report of symptoms of fatigue and insomnia associated with nightmares. The examiner noted the Veteran’s symptoms of CFS, to include headaches, joint pain, muscle weakness, and sleep disturbance; however, examination and diagnostic testing was normal, the Veteran did not exhibit any cognitive impairment. The examiner found no current diagnosis of CFS. A September 2016 Gulf War VA examination report notes the Veteran’s report of symptoms of fatigue and insomnia. He reported difficulty staying asleep due to nightmares that resulted in symptoms of drowsiness during the day. Upon examination and review of the record, the examiner found that there was no diagnosis of CFS. The examiner noted the Veteran’s complaint of fatigue, however, he concluded that, the claimed condition of fatigue (CFS) was not an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. The examiner indicated that the Veteran’s fatigue is a symptom with a clear and specific etiology and diagnosis. The examiner noted that the Veteran reported his symptoms in terms of insomnia and OSA, which result in his daily drowsiness, fatigue, and loss of motivation. The examiner noted that the Veteran was unable to get more than three hours of sleep, and has daytime drowsiness, to include falling asleep while talking to his wife. The VA examiner found that the Veteran’s complaints do not fit the diagnostic criteria for CFS, which is a disorder characterized by extreme fatigue that cannot be explained by any underlying medical condition. The examiner further noted the eight symptoms of CFS, which are fatigue, memory impairment, sore throat, enlarged lymph nodes in the neck or axilla, unexplained myalgias, migratory joint pains, headache of a new type, unrefreshing sleep, or extreme exhaustion lasting more than 24 hours after physical or mental exercise. The examiner determined that the Veteran did not have CFS because he did not report all of the symptoms of CFS included in the diagnostic criteria. In addition, the examiner noted that the Veteran worked as a contractor for the Department of Defense for the past 12 years and concluded that, the Veteran would not have been able to work for the past 12 years if he had CFS. Further, the examiner noted that the Veteran’s service treatment records are negative for complaints of extreme fatigue, finding it less likely that the Veteran’s fatigue symptoms manifested during service. The examiner also concluded that there is no nexus between fatigue and environmental exposures during service in SWA. The VA examiner noted that the Veteran had other diagnosed disorders that include symptoms of fatigue. Specifically, he noted that the Veteran was in receipt of service connection for PTSD, and received ongoing treatment from a private psychiatrist. The examiner noted the Veteran’s long history of nightmares and insomnia, which is reported during treatment for the Veteran’s acquired psychiatric disorder. The examiner also noted the Veteran’s recent diagnosis of OSA. However, the examiner indicated that individuals whom have persistent insomnia and sleep apnea often have difficulty differentiating fatigue from the effects of the sleep disorder itself. The September 2016 VA examinations contain insufficient rationales; they are conclusory and required all of the symptoms of the diagnostic criteria be found before a diagnosis was considered. The VA examiner also dismissed the possibility of an undiagnosed illness or multi-symptom illness of unknown etiology without a rationale, despite noting the Veteran's statements of exposure while in Southwest Asia. A March 2017 VA CFS examination for examination report notes the Veteran’s report of symptoms of fatigue, weakness, and excessive sleeping. The notation in the Veteran’s medical history indicates that his current symptoms are due to PTSD as per the psychiatrist. Upon examination, the examiner did not indicate or note any symptoms found to be attributable to CFS. The VA examiner concluded that the Veteran’s current symptoms were due to his service-connected PTSD. The examiner concluded that there was no diagnosis of CFS because there was no pathology to render a diagnosis. A March 2017 VA opinion addresses whether the Veteran's claimed CFS was due to or the result, or aggravated by his service-connected PTSD. The VA examiner found that the claimed fatigue was less likely than not a symptom of the Veteran's service-connected PTSD. In providing the opinion, the examiner noted that the Veteran’s current fatigue was a symptom of PTSD, rather than an additional diagnosis of CFS. An October 2019 VA Gulf War examination includes the examiner’s finding of no current diagnosis of CFS. The examiner stated that the Veteran's disability pattern was a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. However, the examiner also found no nexus between the Veteran's diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology and the Veteran's Gulf War service. There were no reasons provided as to why the Veteran's fatigue was medically unexplained. It is unclear whether the examiner considered the Veteran's OSA or lay statements. An October 2020 VA Opinion includes the examiner’s opinion indicating no current diagnosis of CFS. The examiner noted the Veteran’s diagnosis of OSA, as well as his service-connected PTSD, and found that OSA results in unrestful sleep and fatigue, while fatigue is also a common symptom of PTSD. In this regard, the examiner noted the Veteran’s consistent complaints of fatigue beginning in 2015, 15 years post-separation from service, and two years after service connection for PTSD was granted. The examiner noted the Veteran’s lay statements, to include his report of fatigue as a result of his anxiety and nightmares, that interrupted his ability to sleep. The examiner concluded that the Veteran’s fatigue does not constitute CFS, as fatigue is a symptom of OSA and the service-connected PTSD. The Board finds that the signs or symptoms of CFS are not diagnosed as CFS, and the medical evidence does not support a diagnosis of CFS, nor does it support a diagnosis of undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. According to the March 2017 and October 2020 VA examiners, the Veteran's symptoms of fatigue are directly related to his service-connected PTSD, and recently diagnosed OSA. The Veteran's service treatment records are devoid of any clear symptoms that are related to CFS or chronic symptomatology during the Veteran's active service. The Veteran's indication of fatigue in-service is not clearly indicated as being related to anything other than his already service-connected PTSD. Due to this lack of symptoms in service, the lack of chronic symptomatology, and the VA examinations dated in March 2017 and October 2020, the evidence suggests that the Veteran's symptoms of fatigue did not manifest during, or as a result of active military service, to include his service in Southwest Asia. The Board acknowledges the Veteran's lay statements of fatigue associated with nightmares and interrupted sleep. However, the aforementioned VA examiners found that the claimed disability of CFS, was not a current diagnosable disability. Thus, the examiners concluded that the Veteran’s symptom of fatigue is not related to his service in SWA. Therefore, in consideration of the VA examiner's findings, the medical evidence of record does not support a diagnosis of CFS. This lack of medical evidence precludes a finding of CFS as a chronic disability and precludes the finding of continuity of symptomatology. In addition, there is no medical evidence of record that any claimed fatigue experienced by the Veteran is due to an undiagnosed illness. Rather, the evidence of record has related the Veteran's symptomatology to known and diagnosed conditions, including symptoms of the service-connected PTSD and recently diagnosed OSA. Also, the Veteran is not entitled to service connection for a medically unexplained chronic multisymptom illness (MUCMI). Under the proper interpretation of the law, an illness or disease is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a condition is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. In the present case, the Veteran's fatigue symptomatology has an etiology that is at least "partially understood," and as such, the Veteran's condition cannot be classified as a MUCMI. See 38 C.F.R. § 3.317 (a)(2)(ii). While the Veteran believes that his current fatigue is related to service in the Persian Gulf War, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis or etiology of his claimed disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current fatigue is not competent medical evidence. The Board finds the opinion of the VA examiners of record to be significantly more probative than the Veteran's lay assertions, as they are thorough in their review of the medical records of the Veteran, thorough in their stated rationales, and thorough in their review of the service treatment records of the Veteran. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. The evidence before the Board here indicates that the Veteran's claim must be denied as the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is inapplicable. Therefore, the Veteran's claim of entitlement to service connection for CFS, to include symptoms related to an undiagnosed illness/MUCMI, to include as due to a service-connected disability, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for OSA, to include as secondary to the service-connected PTSD and/or hypertension. When the Board last reviewed the claim in September 2020, it determined that an addendum VA medical opinion, addressing whether the Veteran’s current OSA was caused or aggravated by the Veteran’s service-connected PTSD and/or hypertension, was necessary. The Veteran contends that his current OSA is due to his SWA service, and in the alternative, his service-connected PTSD and/or hypertension. In this regard, the Veteran reported sleep disturbance since returning from SWA. With respect to secondary service connection, in his July 2017 notice of disagreement, the Veteran reported that his ability to sleep was aggravated by seeing things or hearing things from his past. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. In an October 2020 VA opinion, the examiner in significant part, indicated that a thorough review of medical literature reveals that PTSD and OSA are associated and commonly linked, as veterans with PTSD screen as high risk for OSA. The examiner concluded that a direct causal relationship between OSA and PTSD is nor proven. The examiner’s conclusion is contrary to his findings and lacks a rationale. With respect to aggravation, the examiner found that it was less likely that the Veteran’s OSA was aggravated by his service-connected PTSD. In providing the opinion, the examiner noted that he was unable to find medical literature supporting PTSD as an aggravating factor. The October 2020 VA examiner’s opinion is inadequate to adjudicate the claim, as the examiner did not provide any rationale to support his finding, that OSA was not caused by the service-connected PTSD. Likewise, while the examiner considered whether the Veteran’s current OSA was aggravated by his service-connected PTSD, he failed to provide an adequate rationale, noting that he was unable to find medical literature supporting PTSD as an aggravating factor of OSA. Significantly, the examiner failed to consider the Veteran’s lay statements, to include the Veteran’s assertion that his ability to sleep was aggravated by seeing things or hearing things from his past. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Accordingly, an addendum medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include VA outpatient treatment records from November 2020, to the present, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. If deemed appropriate at this time, the examination may be conducted virtually. Following the review of the record, the physician should state a medical opinion with respect to OSA disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the OSA disorder manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the OSA disorder(s) was caused or aggravated by his service-connected PTSD and/or hypertension disorders. In providing the opinion, the examiner must discuss the Veteran’s lay statements, to include the July 2017 notice of disagreement that notes the Veteran’s assertion that his ability to sleep was aggravated by seeing things or hearing things from his past. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. (Continued on the next page)   If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.