Citation Nr: 21012126 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-26 828 DATE: March 3, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in November 2016 for further development. It denied the claim in a December 2017 decision. In an August 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR), vacated the Board’s December 2017 decision, and remanded the matter for further action consistent with the terms of the JMR. In March 2019 and August 2020, the Board remanded the case for further development. The Veteran testified at a hearing before the undersigned in August 2016; a transcript of the hearing is of record.   Entitlement to service connection for chronic fatigue syndrome is remanded. The Board regrets the delay in rendering a decision on this claim, but finds that it must remand the matter again for a new medical opinion, as the September 2020 VA medical opinion does not adequately address the Board’s prior remand directives and the issues presented. In its August 2020 remand, the Board instructed that a new VA medical opinion must be obtained that explains why other conditions may have caused the Veteran’s fatigue rather than CFS (if the opinion so found) and which accounts for his report that a CPAP machine to treat his apnea did not alleviate his fatigue. The September 2020 VA medical opinion concludes that the Veteran’s fatigue does not meet the criteria for chronic fatigue syndrome. In support of that finding, the examiner stated, in part, that the Veteran’s fatigue is more likely secondary to obesity, diabetes, posttraumatic stress disorder (PTSD), anxiety, and obstructive sleep apnea, which are common causes of fatigue. With regard to obstructive sleep apnea, the examiner stated that the Veteran continued to have fatigue even with treatment with a CPAP due to noncompliance with using the CPAP. With regard to the examiner’s statement that the Veteran had other conditions that more likely caused his fatigue because they are common causes of fatigue, that observation does not explain why the Veteran’s fatigue is therefore more likely related to those conditions than to chronic fatigue syndrome. Significantly, the examiner attributes the Veteran’s fatigue to lack of compliance with CPAP use, but the VA treatment records show that he has in fact been compliant with using his CPAP. While records dated in May 2012 and September 2015 reflect noncompliance, more recent records dated since at least 2018 show that the Veteran regularly uses a CPAP machine. See, e.g., October 22, 2018 CAPRI (“Patient compliant with CPAP at home”); October 08, 2019 CAPRI (“CPAP -using regularly”). The Board also notes that the examiner’s attribution of the Veteran’s fatigue to noncompliance with the CPAP implies that the other conditions listed by the examiner as common causes of fatigue, such as PTSD and diabetes, were not contributing factors to the Veteran’s fatigue. Otherwise, it may be that notwithstanding compliance with prescribed CPAP usage, his fatigue persisted because of these other conditions. But the examiner did not say that, or explain why those conditions more likely caused the Veteran’s fatigue as opposed to chronic fatigue syndrome or an undiagnosed illness. Accordingly, the Board must remand for a new medical opinion that adequately addresses the above issues. The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since October 2020. 2. Arrange for a new VA medical opinion as to whether the Veteran has a diagnosis of chronic fatigue syndrome (CFS) based on the criteria set forth in 38 C.F.R. § 4.88a. If the examiner finds that another condition (or conditions) is more likely responsible for the Veteran’s fatigue, the examiner must explain why the fatigue is more likely due to that condition (or conditions) as opposed to being a manifestation of CFS. If the examiner finds that the Veteran’s obstructive sleep apnea causes his fatigue, the examiner must account for the fact that the Veteran’s fatigue has persisted notwithstanding compliance with CPAP usage. While earlier records reflect noncompliance, more recent records dated since at least 2018 show that he regularly uses his CPAP. (Continued on next page)   The examiner must also address whether at least six of the ten listed conditions for a diagnosis of CFS under §4.88a are present in the Veteran’s case. For example, the examiner should state whether the Veteran has had nonexudative pharyngitis or palpable or tender cervical or axillary lymph nodes. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.