Citation Nr: 21011952 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-03 698A DATE: March 3, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. REASONS FOR REMAND Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran had active service in the Navy from November 1989 to November 1993. These matters return to the Board of Veterans’ Appeals (Board) following an August 2020 remand for further development; this appeal originates from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) denying entitlement to service connection for, in pertinent part, CFS. In August 2020 the Board remanded the Veteran’s CFS claim to obtain an adequate VA medical opinion speaking to the propriety of a diagnosis of CFS at any point during the period on appeal, even if currently resolved. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that its August 2020 remand directives have not been substantially complied with. VA medical examination and opinion were obtained in September 2020. The September 2020 examiner stated that the Veteran did not have a current diagnosis of CFS. However, upon review of the response provided by the examiner, the Board finds that the examiner’s conclusion is not supported by a clear, adequate rationale that is consistent with the applicable legal standard. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the September 2020 VA medical opinion itself raises an additional theory of entitlement that must be developed in order to fully adjudicate the Veteran’s CFS claim. By way of background, in August 2020 the Board concluded that the period on appeal began with the filing of the Veteran’s claim for CFS in September 2009. 38C.F.R. §3.400 (2009). With regard to the requirement that a Veteran have a current disability before service connection may be awarded for that disability, this requirement is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A May 2011 VA Gulf War examination reflects a diagnosis of “chronic fatigue”; it is unclear whether this represents a diagnosis of “chronic fatigue syndrome.” It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). An October 2009 VA treatment note documents a statement by the Veteran that she had experienced physical symptoms, including fatigue, for three or months or longer, that have interfered with her normal daily activities at home or work. On two occasions in March 2012, as well as in June 2012 and February 2013, the Veteran reported feeling tired or having little or no energy to VA treating providers. A June 2015 VA treating provider note reflects complaints of fatigue and feeling “off balance and tired.” The Board’s August 2020 remand directed a VA examiner to directly address the above described evidence in determining the propriety of a diagnosis of CFS at any point during the period on appeal. The examiner was asked to respond to the following prompt: “[m]ay a diagnosis of [CFS] be applied to the Veteran at any time since September 2009, even if now currently resolved.” The examiner responded, in pertinent part, as follows: “Not resolved. Still has multiple complaints.” By responding “not resolved,” the examiner appears to answer the question in the affirmative: that the Veteran has, at the time of the September 2020 opinion, a diagnosis of CFS which had not resolved. However, the examiner goes on to state that the Veteran “[s]till [had] multiple complaints,” implying that it is the Veteran’s complaints which had not resolved, rather than there being an unresolved diagnosis of CFS. This is not responsive to the question posed, however. To represent substantial compliance with the Board’s August 2020 remand directives in this context, any opinion obtained must be responsive to the question(s) posed. Moreover, the examiner’s opinion reflects the application of an improper standard. Generally, in determining questions of fact, the analysis to be applied in the adjudication of a claim for benefits is whether it is “at least as likely as not” (i.e. a probability of at least 50 percent) that something is the case. In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. This standard is referred to as the “equipoise” standard. The September 2020 examiner stated that “[o]ther conditions cannot be ruled out, thus no diagnosis of CFS.” In support of this, the examiner stated that the Veteran had “multiple symptoms which could be chronic fatigue, but similar symptoms occur in the other issues that she has.” The examiner went on to explain: “Her symptoms are somewhat generalized and could be due to other multiple other conditions including [posttraumatic stress disorder], . . . anxiety, depression. She has multiple other medical issues which can produce similar symptoms which include anxiety, depression, headaches, PTSD. While the veteran does report symptoms that could be CFS, there are other diagnoses which could also cause these conditions. Thus, no diagnosis is warranted since these other conditions cannot be ruled out entirely.” In this case, the equipoise standard does not require that other causes of the Veteran’s symptoms (claimed as CFS) be ruled out “entirely.” The question is whether the Veteran’s claimed symptoms, at any point during the period on appeal, are at least as likely as not to represent a manifestation of CFS sufficient to warrant a diagnosis of same. The examiner also stated that some of the Veteran’s symptoms were “potentiated” (i.e. increased in power, effect, or likelihood) by medications she took to treat her service-connected posttraumatic stress disorder (PTSD). Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected, to include disabilities which are the result of side effects of medication used to treat a service-connected disability. See e.g. 62 FR 65207. Thus, further development is required to address whether the Veteran’s fatigue symptoms represent a disability caused or aggravated by medication used to treat her PTSD and not already contemplated by the rating criteria for PTSD. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the September 2020 opinion. If the September 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. After reviewing the evidence, the examiner should provide opinions to the following: (a.) Has chronic fatigue syndrome been diagnosed at any time since the filing of the claim in September 2009? (b.) If so, is it at least as likely as not (i.e., a 50 percent or greater probability) that the disability was incurred in service or is otherwise to the Veteran’s active service or any incident therein? (c.) Are the Veteran’s symptoms, claimed as chronic fatigue syndrome, proximately due to, or aggravated (i.e. increased in severity) beyond their natural progression by a service-connected disability, to include being side effects of medication used to treat a service-connected disability. If the examiner finds there has been aggravation, they should provide an opinion as to the degree of disability over and above the degree of disability existing prior to the aggravation (i.e., please identify the baseline level of disability). A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In rendering the requested opinions, the examiner must discuss the lay contentions regarding the onset of the Veteran’s fatigue symptoms. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner’s knowledge, the limits of medical knowledge in general; or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.