Citation Nr: 21013260 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-56 615 DATE: March 9, 2021 ORDER Entitlement to service connection chronic fatigue syndrome, to include as secondary to a service-connected disability, or as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is denied. REMANDED Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for esophageal disability (GERD and Hiatal Hernia) is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran does not have a current diagnosis of chronic fatigue syndrome, and his symptoms of fatigue are attributed to nonservice-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (a), 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Chronic fatigue syndrome The Veteran asserts that he experiences chronic fatigue due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117 as a result of his active duty service in the in Southwest Asia theater of operations. In the alternative, the Veteran asserts his chronic fatigue syndrome is due to central sleep apnea or his posttraumatic stress disorder (PTSD). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a 'qualifying chronic disability' that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. 38 U.S.C. § 1117(a)(1)(B); (b)(2); 38 C.F.R. § 3.317 (a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). Objective indications of chronic disability include both “signs” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic Multi-Symptom illness include, but are not limited to, fatigue, headache and muscle and joint pain. 38 U.S.C. § 1117 (g)(1), (4), (5); 38 C.F.R. § 3.317 (b)(1), (4), (5). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or his symptom of chronic fatigue is an undiagnosed illness pursuant to 38 C.F.R. § 3.317. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and his symptom of chronic fatigue is attributed to nonservice-connected disorders. After evaluating the Veteran and reviewing the electronic claims file, a June 2014 VA examiner determined that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. The examiner provided the opinion that the Veteran’s chronic fatigue is related to his obstructive sleep apnea. He also explained that the Veteran is moderately overweight. The Board finds that the VA examiner’s opinion is probative as to the issue of whether the Veteran has a current diagnosis of chronic fatigue syndrome and his symptoms of chronic fatigue or tiredness is attributable to known diagnoses as he provided a clear explanation based on the evidence of record and general medical knowledge. After evaluating the Veteran and reviewing the electronic claims file, an August 2014 VA examiner also determined the Veteran’s chronic fatigue was related to his obstructive sleep apnea. The Veteran submitted a sleep apnea Disability Benefits Questionnaire (DBQ) in March 2015. Dr. D.B. diagnosed the Veteran with central sleep apnea with a diagnosis date of 2005. Dr. D.B. stated the Veteran’s sleep apnea caused difficulty sleeping, chronic fatigue, and stopping of breathing at night. The Veteran is competent to report that he experiences fatigue and excessive tiredness, but is not competent as a lay person to diagnose chronic fatigue syndrome or attribute to an undiagnosed illness related to his active duty service in the in Southwest Asia theater of operations during the Persian Gulf War. The diagnosis of chronic fatigue syndrome and/or the etiology of chronic fatigue is medically complex and requires special medical knowledge and expertise. The medical opinion, which is competent and based on an adequate examination and rationale, is entitled to probative weight and outweighs the Veteran’s statements. While the Veteran’s representative points out the Veteran has a diagnosis of central sleep apnea, not obstructive sleep apnea, the March 2015 sleep apnea (DBQ) completed by Dr. R.B. confirms the Veteran’s central sleep apnea causes his chronic fatigue. In any case, the Veteran is not service connected for any type of sleep apnea and secondary service connection is not available. Further, as the Veteran is not shown to have a current diagnosis of chronic fatigue syndrome, secondary service connection to his service-connected PTSD is also not available. In conclusion, the preponderance of the evidence shows that the Veteran has not been diagnosed with chronic fatigue syndrome, and his chronic fatigue is a symptom of one or more nonservice-connected disorders. Accordingly, entitlement to service connection for chronic fatigue syndrome is denied. REASONS FOR REMAND 1. Bilateral foot disability The Veteran seeks entitlement to service connection for a bilateral foot disability. The Veteran was provided a VA examination as to his bilateral foot condition in June 2014. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The June 2014 VA examination relating to the Veteran’s bilateral foot disability is inadequate for decision-making purposes because the examination report is inconsistent with the May 2015 examination by Dr. B.C. Upon physical examination, the June 2014 VA examiner noted the Veteran had bilateral pes planus. However, the May 2015 examination by Dr. B.C. found no evidence of flat feet. The Veteran asserts he has suffered from bilateral foot pain since, and he does not have bilateral pes planus. The Veteran’s service treatment records from October 1988 show complaints and treatment for left foot pain with edema and painful range of motion. The Veteran was assessed with a left foot strain/sprain in November 1988, which caused difficulty standing and walking. As the June 2014 VA examination and the May 2015 examination by Dr. B.C. are in conflict as to the Veteran’s bilateral foot diagnosis, there is not adequate information for decision-making purposes. The Veteran must be provided a new VA examination to address the nature of the Veteran’s current bilateral foot disability, and whether it is related to an in-service event, injury, or disease, including the Veteran’s complaints of foot pain in service. 2. GERD Regarding the Veteran’s claims for entitlement to service connection for GERD, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an esophageal examination. Here, a May 2015 outpatient note from Dr. B.J. contains an assessment of esophageal reflux. Additionally, the Veteran’s service treatment records reflect the Veteran was treated for abdominal pain in service in May 1991 and was diagnosed with gastroesophageal reflux in October 1991. Furthermore, the Veteran has stated that he has had GERD since service. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot disability. (a.) For any diagnosed bilateral foot disability, provide an opinion as to whether it is at least as likely as not it is related to the Veteran’s service, to include his complaints and treatment for foot pain in service. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his gastroesophageal disability. (a.) For any diagnosed gastroesophageal disability, provide an opinion as to whether it is at least as likely as not it is related to the Veteran’s service, to include his complaints and treatment for gastroesophageal reflux in service. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.