Citation Nr: 21009452 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-29 207 DATE: February 22, 2021 ORDER The claim for service connection for chronic fatigue syndrome is denied. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran has a valid diagnosis of chronic fatigue syndrome. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107 (2018); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force on active service from May 1987 to April 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a 2014 rating decision of the Department of Veterans Affairs Regional Office (RO) in Buffalo, New York. In September 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The record was held open for 90 days to receive a letter from the Veteran’s treating physician. The document, a 2016 statement, was received within the 90 days provided. The Board finds that the agency of original jurisdiction has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records have been obtained, including VA treatment records and Social Security Administration records, or appropriate efforts to secure them have been undertaken. Adequate examinations, considering the evidence of record and including appropriate findings and rationales for claimed conditions were afforded the Veteran. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his attorney have argued against a finding that the agency of original jurisdiction has not met its duty to assist. The Board thus finds that the agency of original jurisdiction has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. In addition, presumptive service connection is afforded for Persian Gulf Veterans who exhibit objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317 (b), provided that such disability: (i) became manifest either during active military, naval, or air 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, 2021; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. under 38 U.S.C. § 1117; C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders (excluding structural gastrointestinal diseases. 38 C.F.R. § 3.317 (a)(2). The Veteran and her attorney argue for service connection for chronic fatigue syndrome on two bases. First, they argue that presumptive service connection is warramted, stating that the Veteran is a Persian Gulf War Veteran and chronic fatigue syndrome is among the presumptive illnesses listed under; 38 C.F.R. § 3.317. Second, they argue that service connection for chronic fatigue syndrome should be granted on direct basis or, in the alternative, on a secondary basis to already service-connected posttraumatic stress disorder (PTSD) and/or fibromyalgia on the evidence presented. Unfortunately, the evidence does not support these contentions. The Veteran and her attorney argue for presumptive service connection, stating that the Veteran is a Persian Gulf War Veteran, and service connection for chronic fatigue syndrome should be granted on a presumptive basis under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In support of this argument, they note the evidence shows the Veteran exhibited symptoms of fatigue from 2002 continuously to 2012, when she was diagnosed with chronic fatigue syndrome, which itself has persisted to the present. However, the presumptive provisions of these regulations apply only to Veterans who served in the southwest asia theater of operations. In this case, the Veteran did not have active service in the southwest asia theater of operations. Instead, the Veteran stated, and service medical and service treatment records confirm, that her foreign service was in Osan Air Base in Korea and Lejes Field in Azores, Portugal. Neither she nor her attorney have argued that she served in the area defined by 38 C.F.R. § 3.317(e). She is inaccurately and conclusorily referred to as a Gulf War Veteran by her attorney, but she is more properly characterized as a Veteran of the Gulf War era. Thus, the presumptions applying to undiagnosed disease or multi-factorial illness cannot be considered in the present case. The Veteran and her attorney alternatively argue that service connection for chronic fatigue syndrome should be granted on a direct or secondary basis. In support of this argument, they note she was diagnosed with chronic fatigue syndrome in 2012. In addition, and in response to findings that the Veteran’s symptoms overlap with those of her already service-connected PTSD and fibromyalgia, they argue that the Veteran exhibits specific symptoms that are unique to chronic fatigue syndrome and do not overlap, namely: fatigue lasting 24 hours or longer after exercise; and neuropsychological symptoms including memory issues, mood disturbance and issues with concentration. See Attorney Brief in Support; 2016 statement of the Veteran’s treating physician, Dr. AA. Furthermore, they provide the statement of treating physician, Dr. JB, who stated that the Veteran’s PTSD aggravates her co-morbid fibromyalgia and chronic fatigue syndrome. There is no dispute as to the Veteran’s symptoms of fatigue having begun in 2002. Private and VA treatment records, and 2014 and 2016 VA examination reports, corroborate this history in detail. In addition, the Veteran has submitted statements from Drs. AA and JB who, in aggregate, confirm that the Veteran has and continues to exhibit symptoms of fatigue lasting for hours or longer after exertion, joint pains, headaches, poor sleep, generalized muscle and aches/weakness; and have opined that these symptoms are at least in part due to chronic fatigue syndrome. See, in particular, September 2016 Statement of Dr. AA; but see also, June and August 2015 statements of Dr. JB. However, there is dispute as to whether these fatigue symptoms warrant a diagnosis of chronic fatigue syndrome. A June 2014 VA examination accepted a 2012 diagnosis of chronic fatigue syndrome, finding that such was confirmed following work-ups and investigation eliminating other causes. However, in discussing review of the medical evidence, the VA examiner observed that the Veteran’s symptoms of chronic fatigue syndrome overlapped with her symptoms of depression and fibromyalgia. In addition, the VA examiner highlighted inconsistencies in the 2012 diagnosis of chronic fatigue syndrome including 2012 entries in VA rheumatology and neurology in which the VA health care providers stated the-work up was incomplete and more tests were required to confirm the diagnosis of chronic fatigue syndrome. Ultimately the examiner opined that the identified disability was not related to service, as it was not identified until long after separation. The Veteran underwent additional VA examination in April 2016, at which time the VA examiner determined her symptoms did not meet the clinical definition of chronic fatigue syndrome. Rather, the VA examiner stated the Veteran is more properly diagnosed as having fibromyalgia. She acknowledged there is tremendous overlap between the conditions, but opined fibromyalgia was the better fit for the Veteran’s presentation. In explaining the rationale, the 2016 VA examiner explained that overlapping features of symptoms of fibromyalgia and chronic fatigue syndrome made it difficult to differentiate one condition from another. Notwithstanding, the VA examiner explained, the clinical presentation of chronic fatigue syndrome involves additional symptoms of a history of infection, fever, and lymphadenopathy. In the Veteran’s case, her clinical presentation with regard to chronic fatigue syndrome did not include findings of a history of infection, fever and lymphadenopathy. Thus, the VA examiner opined, the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. Rather, the VA examiner diagnosed fibromyalgia with overlapping symptoms of chronic fatigue, likely secondary to PTSD. The VA examiner demonstrated extensive review of the Veteran’s medical records and medical literature concerning fibromyalgia and chronic fatigue syndrome by referring to the Veteran’s treatment entries, including statements and observations by her treating physicians and the incomplete nature of rheumatology and neurology work-ups in 2012; by referring to the definitions, clinical presentations, symptoms and epidemiologies of both disorders; and by evaluating the presenting medical evidence, including that from examination of the Veteran, in the context of the requirements for clinical diagnoses of both disorders. The VA examiner is a medical doctor, and conducted VA examination for both fibromyalgia and chronic fatigue syndrome as well as providing the requested medical opinions. In analyzing and weighing the medical evidence before it, the Board observes that the medical evidence purporting to show a diagnosis of chronic fatigue syndrome, including Drs. AA’s 2016 and JB’s 2015 statements, do not establish that the Veteran’s symptoms of chronic fatigue syndrome include such clinical manifestations as a history of infection, fever, or lymphadenopathy. Rather, the symptoms identified by Dr. AA’s statement as arising solely from the chronic fatigue syndrome alone—fatigue after exertion, headaches, joint pains, poor sleep and generalized muscle and aches/weakness—are also symptoms of fibromyalgia. In addition, and despite having diagnosed chronic fatigue syndrome, the 2014 VA examination further noted that the diagnosis of chronic fatigue syndrome reflected in the Veteran’s treatment records were based on incomplete findings within VA rheumatology and neurological departments, wherein the VA health care providers themselves stated that the work-ups needed to diagnose chronic fatigue syndrome had not been completed. In sum, the Board observes the 2016 VA examiner’s opinion is well-reasoned and provides a clear rationale. The VA examiner’s findings and opinion are based on thorough review of the Veteran’s medical record and on thorough review of medical information concerning chronic fatigue syndrome as well as examination of the Veteran. Thus, the Board finds the 2016 VA examination and opinion to have the greater probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran’s consistent reporting of fatigue since 2002 is credible, as she is competent to report her own fatigue. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran is not shown to have the requisite training and experience to render a clinical diagnosis of chronic fatigue syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As is discussed by treating and examining doctors, the symptom of fatigue can be readily accounted for as part of other diagnosed (and currently service-connected) disabilities. Absent a valid diagnosis of chronic fatigue syndrome, service connection cannot be granted for the disorder on a direct or secondary basis. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the absence of proof of a present disability there can be no valid claim. In addition, absent symptoms of chronic fatigue syndrome that do not overlap with and are not compensated under the evaluation provided for the service-connected fibromyalgia, such symptoms cannot be separately service-connected and compensated under another disorder on either a direct or secondary basis. See 38 C.F.R. § 4.14. It is noted that the symptoms identified as unique to the chronic fatigue syndrome by the Veteran and her attorney are contemplated in the 70 and 40 percent evaluations afforded, respectively, the service-connected PTSD and fibromyalgia. Accordingly, service connection for chronic fatigue syndrome is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.