Citation Nr: 21010845 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-16 513 DATE: February 25, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or other qualifying chronic disability and/or as due to exposure to chemical and/or environmental hazards during Gulf War service, is remanded. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to exposure to chemical and/or environmental hazards during Gulf War service, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1983 to August 2003, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2012 VA Form 9, the Board requested a hearing before a Veterans Law Judge. In a February 2016 Statement in Support of Claim, the Veteran, through his representative, withdraw his hearing request. 38 C.F.R. § 20.704(e). The Board remanded this matter for further development in September 2016 and June 2018. 1. Entitlement to service connection for CFS, to include as due to an undiagnosed illness or other qualifying chronic disability and/or as due to exposure to chemical and/or environmental hazards during Gulf War service, is remanded. 2. Entitlement to service connection for CLL, to include as due to exposure to chemical and/or environmental hazards during Gulf War service, is remanded. The Veteran relates his CFS and CLL to active duty military service, including his service in the Southwest theater of operations during the Persian Gulf War. See January 2021 Written Brief Presentation; May 2018 Written Brief Presentation; August 2016 Written Brief Presentation; October 2009 Statement in Support of Claim. VA examinations and etiology opinions for CFS and CLL were obtained in October 2020. The examiner opined that it was less likely than not that the Veteran’s CFS and CLL were related to service. The Board finds the examiner’s supporting rationale to be inadequate. Thus, remand is necessary to obtain addendum opinions. Specifically, with respect to CFS, the examiner noted an onset date of 1993 “per patient history,” but he identified the source of the Veteran’s fatigue as an Epstein Barr viral infection he contracted in 2008. The examiner does not explain how a viral infection contracted in 2008 could cause symptoms that began in 1993, 15 years before the infection. Likewise, he also does not explain how the 2008 infection can still be causing the Veteran’s symptoms in 2020, 12 years after the infection. In addition, it is unclear whether the examiner’s statement “per patient history” means he based the 1993 diagnosis date of CFS merely on the Veteran’s own report or on other evidence of record. Upon a review of the record, the Board did not identify any evidence that established a diagnosis of CFS in 1993. In addition, the examiner also noted an Epstein Barr viral infection in 1995; however, that appears to be a typographical error as his rationale only references a 2008 infection and the Board has found no evidence of a 1995 infection. Even more confusing is the examiner’s statement that “it does not appear that CFS was a valid diagnosis.” With respect to CLL, the examiner opined that “there is no evidence” that elevated lymphocyte and Lymph% counts in June 2000 and June 2003, elevated Lymph% count in October 2002, and enlarged lymph nodes in March 1989 were causally related to the CLL he developed in 2007. It is unclear what type of evidence would be needed to establish this link. If elevated lymphocyte and Lymph% counts are potentially indicative of CLL, then an opinion is needed to address whether a diagnosis of CLL could be precipitated by elevated lymphocytes and Lymph% counts, even slight elevations. It is not necessary that evidence affirmatively establish a causal relationship between early elevations and later diagnosis; rather, the standard is whether it is as likely as not. Furthermore, the examiner did not discuss the possibility that the Veteran’s diagnosis of CLL could have been caused by hazardous environmental exposures while serving in the Southwest Asia theater of operations (Saudi Arabia and Kuwait) during the Persian Gulf War, to include possible exposure to depleted uranium. Rather, the examiner merely stated, without supporting rationale, that “[t]here is no evidence suggesting the leukemia diagnosis in 2007 was caused by an in-service injury.” For these reasons, the Board finds the October 2020 etiology opinions for CFS and CLL to be inadequate for adjudicative purposes. Remand is necessary to obtain addendum opinions. The RO should also undertake efforts to corroborate the Veteran’s claim of being exposed to depleted uranium. Any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, secure any relevant outstanding private treatment records. 3. The RO should undertake efforts, with any necessary assistance from the Veteran, to include developing additional evidence, to substantiate the Veteran’s claim of being exposed to depleted uranium during active service. 4. Then obtain an addendum opinion regarding the etiology of the Veteran’s fatigue disorder from the same examiner who conducted the October 2020 examination, or other examiner, if unavailable. If the examiner determines an updated examination is needed to address the following questions, the Veteran should be scheduled for an updated examination. The examiner is asked to discuss the following: (a.) The October 2020 VA examination report indicates an onset date of 1993 for CFS, contrarily notes “it does not appear that CFS was a valid diagnosis,” then attributes the Veteran’s symptoms to a 2008 Epstein Barr viral infection. Please explain how contracting an Epstein Barr viral infection in 2008 could explain symptoms that originated in 1993. Please also explain how the 2008 infection could explain the Veteran’s symptoms in 2020. Please explain how CFS could be present in 1993 but not be a current valid diagnosis. If both disabilities have been present at any point since August 2009, please so state. (b.) The October 2020 examination report indicates a 1993 onset of CFS “per patient history.” Please clarify the statement, “per patient history.” The examiner should indicate precisely what he relied on to identify the date of onset as 1993. If the examiner relied on any evidence of record, he should indicate which documents he relied on in reaching this conclusion. He should also indicate whether he relied on the Veteran’s report of being affirmatively diagnosed in 1993 or on the Veteran’s description of symptoms he experienced in 1993. (c.) The October 2020 examination report indicates a 1995 Epstein Barr viral infection. Please indicate whether this was a typographical error, or if not, identify the basis for a 1995 Epstein Barr viral infection. (d.) If either CFS or Epstein Barr viral infection have been diagnosed at any point since August 2009, please opine whether it is at least as likely as not (50 percent or greater probability) such disability had its onset in service or is otherwise related to service, to include as a result of presumed environmental exposures therein, as well as any confirmed uranium exposure therein. 5. Then obtain an addendum opinion regarding CLL from a different examiner than the one who conducted the October 2020 examination, preferably an oncologist. If the examiner determines an updated examination is needed to address the following questions, the Veteran should be scheduled for an updated examination. After reviewing the claims file, the examiner is asked to discuss the following: (a.) Please explain whether the Veteran’s elevated lymphocyte and Lymph% counts in June 2000 and June 2003, elevated Lymph% count in October 2002, enlarged lymph nodes in March 1989, and any other evidence of record, could be early indicators of the CLL that was diagnosed in 2007. In addressing this question, please keep in mind that it is not necessary that evidence affirmatively establish a causal relationship between early elevations and later diagnosis; rather, the standard is whether it is as likely as not (50 percent or greater likelihood). In other words, is it as likely as not that the Veteran’s 2000 and 2003 elevated levels of lymphocytes and Lymph% were early indicators of a disease process that developed into CLL in 2007, only a few years after elevated levels manifested? (b.) Discuss whether it is as likely as not that the Veteran’s CLL was caused or is otherwise related to the Veteran’s active service, to include, but not limited to, elevated lymph nodes in March 1989, hazardous environmental exposures incurred while serving in the Southwest Asia theater of operations (Saudi Arabia and Kuwait) during the Persian Gulf War, and any confirmed uranium exposure therein. Please address the November 2010 opinion of Dr. P. in answering this question. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.