Citation Nr: 21009478 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-25 647 DATE: February 22, 2021 ORDER Entitlement to service connection for chronic fatigue is denied. Entitlement to service connection for an unspecified joint pain disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. REMANDED Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has chronic fatigue due to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has an unspecified joint pain disorder due to an in-service event, injury, or disease. 3. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is moot as (1) the Veteran held a 100 percent schedular rating for cardiovascular problems, to include enlarged heart, congestive heart failure, fluid in lungs, aneurysm, left kidney condition and aortic dissection associated with hypertension and (2) the combined total rating of his other service-connected disabilities was not at least 60 percent disabling, precluding eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an unspecified joint pain disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a TDIU is dismissed as moot. 38 U.S.C. §§ 1114, 7104, 7105; 38 C.F.R. §§ 3.350, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1965 to August 1969 and from September 1990 to December 1991. The Veteran’s second period of service includes service in Southwest Asia. The Veteran also served in the Air Force Reserve and was transferred to the Retired Reserve in May 2003. The Veteran died in December 2018. The appellant, who is the Veteran’s surviving spouse, has been properly substituted for the Veteran. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the Veteran’s claims for an unspecified joint pain disorder, chronic fatigue, and a skin disorder for additional development. The case is now again before the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for chronic fatigue is denied. The Veteran contends that he has chronic fatigue that is related to an in-service, event, illness, or injury, as he contends that he experienced chronic after his active service in 1991. Because the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, in addition to the service connection criteria described above, service connection may also be established under 38 C.F.R. § 3.317. Under this 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, or to a degree of 10 percent or more not later than not later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, 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 the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (including irritable bowel syndrome). See 38 C.F.R. § 3.317. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (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 disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. The Board notes that a diagnosis of chronic fatigue syndrome requires the following: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38 C.F.R. § 4.88(a). Turning to the evidence, a review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to chronic fatigue syndrome. A July 1998 pre-deployment health assessment documented the Veteran’s report that he had no medical problems and was in excellent health. In March 2011, the Veteran submitted a statement in which he expressed that he has experienced chronic fatigue since his service in Saudi Arabia in 1991 The Veteran was afforded a VA examination in May 2011. The Veteran reported that he had chronic fatigue since the Gulf War. He stated that he used to work 12-hour shifts when he was in the Gulf War. Since his return from the Gulf War in 1991, he has had feelings of becoming tired easily. He denied any acute onset of the condition. It was reported that his fatigue was not due to his sleep problems. The Veteran reported his fatigue does not last 24 hours or longer after exercise. Usually he rests for two hours and feels better. His fatigue had not been debilitating and there had been no incapacitating episodes or treatment by a physician. The Veteran was not taking any medications for his fatigue. The examiner concluded that, although the Veteran reports chronic fatigue, he does not meet the criteria for chronic fatigue syndrome. The Veteran was provided an addendum opinion in December 2019. After reviewing all pertinent records, including the Veteran’s lay statements and complaints concerning his symptoms, the examiner concluded that the Veteran does not have an official diagnosis of chronic fatigue syndrome, and the record reveals that he does not meet the diagnostic criteria for chronic fatigue. Thus, the examiner opined that the Veteran’s claimed chronic fatigue was less likely than not (less than 50 percent probability) incurred or caused by an in-service injury, event, or illness. As previously described, a review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to chronic fatigue syndrome. In July 1998, the Veteran reported that he had no medical problems and was in excellent health. The Veteran first claimed to have chronic fatigue in 2011. The Board affords great probative weight to the December 2019 medical opinion. After reviewing the Veteran’s claims file, the December 2019 examiner opined that the Veteran’s claimed chronic fatigue was less likely than not incurred or caused by an in-service injury, event, or illness, as the examiner concluded that the Veteran does not have an official diagnosis of chronic fatigue syndrome, and the record reveals that he does not meet the diagnostic criteria for chronic fatigue. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a diagnosis of chronic fatigue during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for chronic fatigue. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for chronic fatigue must be denied. 2. Entitlement to service connection for an unspecified joint pain disorder is denied. The Veteran contends that he has an unspecified joint pain disorder that is related to an in-service, event, illness, or injury, as he contends that he had pain in his neck, middle back, and right hip after his active service in 1991. A July 1969 report of medical history documented the Veteran’s report that he experienced back pain. The physician’s notes indicate that the Veteran was referring to back strain in between 1965 and 1966 with no recurrence, no complications, and sequelae. After the Veteran’s discharge from active service in December 1991, a November 1992 periodic medical examination report indicated that the Veteran’s spine was normal. It was also reported that he had moderate crepitance in both lower extremities. His knees had good range of motion and no effusion. A November 1992 report of medical history documented the Veteran’s report of experiencing swollen or painful joints. The Veteran was provided a VA spine examination in November 1992. It was reported that the Veteran has no history of low back pain but has occasional bilateral hip pain. The Veteran had full and painless range of motion of the back. The diagnosis was a normal back. At a December 1992 VA examination, the Veteran reported joint pain in his knee and pain in his left foot. The examiner reported normal range of motion of the back. A December 1997 periodic examination reported that the Veteran’s spine and lower extremities were normal. A July 1998 pre-deployment health assessment documented the Veteran’s report that he had no medical problems and was in excellent health. A November 2003 private medical record reported the Veteran experienced occasional low back pain. A May 2007 private medical record reported that the Veteran denied joint pain or swelling. In March 2011, the Veteran submitted a statement in which he expressed that he experienced stabbing joint and muscle pains during his service in Saudi Arabia in 1991 The Veteran was afforded a VA examination in May 2011. The Veteran reported that he was unsure whether he had a diagnosis of fibromyalgia. He reported that he began having symptoms of joint pain after returning from his service in the Gulf War in 1991, including pain in his neck, middle back, and right hip. He reported that he had no problems with this condition prior to his service in the military. He had seen an orthopedic doctor for his hip pain and was told that he had a ball-and socket problem. Upon physical examination of his musculoskeletal system, the Veteran did not have any tender points. The Veteran was provided an addendum opinion in December 2019. After reviewing all pertinent records, including the Veteran’s lay statements and complaints concerning his symptoms, the examiner concluded that the Veteran does not have disabilities manifested by joint pain of the neck, upper back. The examiner opined that the Veteran’s claimed unspecified joint pain of the neck, upper back, and right hip were less likely than not (less than 50 percent probability) incurred or caused by an in-service injury, event, or illness. As rationale, the examiner explained that, after the Veteran reported back pain and hip pain in November 1992, there were no more reports of back pain or hip pain until 2011. Therefore, the examiner stated that it appears there was no chronicity of care for his back pain or hip pain and his neck pain did not start until quite some time after military service. As previously described, the Veteran experienced a back strain in 1966 with no recurrence. A November 1992 report of medical history documented the Veteran’s report of experiencing swollen or painful joints. A November 1992 VA examination reported no history of back pain but occasional bilateral hip pain. The Veteran was diagnosed with a normal back. The Veteran reported experiencing occasional low back pain in November 2003. In March 2011, the Veteran reported experiencing joint pain in 1991. Upon physical examination of his musculoskeletal system, the Veteran did not have any tender points. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of the Veteran’s post-discharge neck pain, back pain, and hip pain to many years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his back disorder. Consequently, the Board gives more probative weight to the December 2019 medical opinion. After reviewing the Veteran’s claims file, the December 2019 examiner opined that the Veteran’s unspecified joint pain of the neck, upper back, and right hip were less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that, although the Veteran reported back pain and hip pain in November 1992, there were no more reports of back pain or hip pain until 2011. Therefore, the examiner stated that it appears there was no chronicity of care for his back pain or hip pain and his neck pain did not start until quite some time after military service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for an unspecified joint pain disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for an unspecified joint pain disorder must be denied. 3. Entitlement to a TDIU is dismissed as moot. By action of an October 2020 rating decision, the Veteran was assigned a 100 percent schedular rating for cardiovascular problems, to include enlarged heart, congestive heart failure, fluid in lungs, aneurysm, left kidney condition and aortic dissection associated with hypertension from March 9, 2011. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Here, the Veteran’s service-connected disabilities from March 9, 2011, the entire period on appeal, are PTSD at 30 percent, hypertension at 10 percent, irritable bowel syndrome at 10 percent, and hypertensive retinopathy at 0 percent. Therefore, the Veteran is not eligible for an award of SMC under 38 U.S.C. § 1114(s). As such, the issue of entitlement to a TDIU is moot. REASONS FOR REMAND Entitlement to service connection for a skin disorder is remanded. A review of the claims file reveals that a remand is necessary before a decision on the merits of the Veteran’s claim for service connection for increased ratings related to the Veteran’s service-connected left and right hip disabilities. In November 2018, the Board remanded the Veteran’s service connection claim for a skin disorder to obtain an addendum medical opinion from an examiner with expertise in treating skin disabilities regarding whether the Veteran’s claimed skin disorder had its onset or is etiologically related to the Veteran’s second period of active service. The Veteran was provided a VA medical opinion in December 2019. The examiner opined that the Veteran’s claimed skin disorder was less likely than not (less than 50 percent probability) incurred or caused by an in-service injury, event, or illness. As rationale, the examiner explained that “I am unable to confirm with medical records that stasis dermatitis occurred during military service or within a reasonable time post-service.” The Board finds that the examiner’s rationale for her opinion focused on in-service incurrence and did not adequately address causation. Notably, at the Veteran’s September 2015 hearing before a Decision Review Officer, the Veteran stated that, due to the heat and exposure to chemicals during his 1991 deployment, he developed stains and rashes from his knees to his ankles. Due to the deficiencies of the December 2019 medical opinion described above, remand is warranted to obtain an addendum opinion to address whether the Veteran’s skin disorder was caused by his active service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Obtain an addendum medical opinion from an examiner with expertise in treating skin disabilities. The examiner is requested to review the claims file. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. 4. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran’s claimed skin disorder (diagnosed as stasis dermatitis) had its onset or is etiologically related to the Veteran’s second period of active service. 5. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the issue sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.