Citation Nr: 21014591 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-02 712A DATE: March 15, 2021 ORDER Service connection for a disability manifested by chronic fatigue is granted. FINDING OF FACT The weight of the evidence reflects that the Veteran’s fatigue disability had its onset during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria to establish service connection for fatigue are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to April 1974 and from August 1974 to January 1975. The Veteran was ordered to report for active duty for training (ACDUTRA) on August 15, 1978 for 12 days. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2016, the Veteran testified before a Veterans Law Judge who had a hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. Normally, the Veteran would be offered another hearing, but given the complete grant of benefits sought in the decision herein, there is no prejudice to proceeding with the appeal. This matter was most recently before the Board in February 2019. At that time, the Board remanded the issue in order, in part, to have VA schedule the Veteran to determine the nature and extent of any currently diagnosed disability manifested by fatigue. VA examiners examined the Veteran in October 2019 and July 2020. Thus, the requested development has been accomplished, and the matter has returned to the Board for further appellate consideration. The Veteran seeks service connection for a disability manifested by fatigue, notably chronic fatigue immune deficiency syndrome. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” Id. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). There is a clear distinction between individuals who serve on active duty and those who only serve on ACDUTRA or inactive duty for training (INACDUTRA). An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and be entitled to disability compensation benefits. In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that the placement of the burden of proof on the Veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C. § 101 (22), (24); 38 C.F.R. § 3.6 (a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing INACDUTRA. Id.; see also 38 U.S.C. §§ 106, 1110, 1131; 38 C.F.R. § 3.303 (a). There are several small exceptions carved out for heart attacks and strokes that occur during a period of inactive duty for training. ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6 (c). To establish status as a “Veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Further, the burden to establish “Veteran” status for a claim based on a period of ACDUTRA is on the appellant. Paulson; Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The Veteran, who holds a bachelor’s degree in nursing, contends that she contracted a viral disease in August 1978 while serving on active duty for training at Fort Pickett, Virginia. She opined that this illness developed over time into a chronic fatigue immune deficiency syndrome. Hearing Transcript (T.) at page 24)). The Veteran’s service treatment records (STRs) dating from her period of ACDUTRA include, in pertinent part, an October 1974 report showing that she complained of having a sore throat for the previous five (5) days with records showing many ear, nose and throat complaints. The examining clinician entered an assessment of viral throat 5 days with records showing bad ear, nose and throat and an assessment of acute respiratory distress. An August 1978 reserve periodic examination report reflects that all of the Veteran’s systems were evaluated as “normal.” There were no complaints or clinical findings referable to fatigue. On a September 1992 Report of Medical History, the Veteran reported that she was in general good health. She reported, in part, having had a mononucleosis-like illness in 1979, ear nose and throat trouble and sinusitis. In February 2019, the Board remanded the claim for an additional VA examination and noted that the two previous VA examinations, performed in November 2016 and July 2017, were inadequate because the examiners has failed to fully consider and address the accounts of record that the Veteran has given about the process of the claimed disease. VA reexamined the Veteran in October 2019 and July 2020. In support of the claim is an October 2019 VA examiner’s opinion. The VA examiner diagnosed the Veteran with chronic fatigue. The VA examiner opined that according to the Veteran’s statement, and also in reviewing the medical records, that there was a notation that the Veteran had been seen for several upper respiratory tract infections. The etiology of fatigue can be many, according to the examiner. The examiner opined that it appeared that the Veteran’s endometriosis, history of infectious mononucleosis with multiple sore throats, and upper respiratory tract infections were the most plausible reasons for her underlying fatigue. The October 2019 VA examiner’s opinion is supported by the Veteran’s STRs which show that she received treatment during service for an upper respiratory tract infection and a history of an infectious mononucleosis. His opinion is also supported by an April 2016 letter, authored by the Veteran’s private physician, wherein he acknowledged that she was dealing with the effects of chronic fatigue and suggested, having reviewed her accounts, that her illness may be attributable to her service. Evidence against the claim includes a July 2020 VA examiner’s conclusion that there was insufficient objective evidence for a diagnosis of chronic fatigue syndrome based on VA criteria. The VA examiner reasoned that he had reviewed the Veteran’s medical records and there was no documentation to support the diagnosis of chronic fatigue immune deficiency syndrome. The examiner referenced May 1983, May 1988 and August 1992 Reports of Medical History which were devoid of any symptoms of fatigue or difficulty concentrating, and stated that the Veteran was in general good health, respectively. According to the July 2020 examiner, there was no documentation that listed the diagnosis of chronic fatigue immune deficiency in the Veteran’s private and VA medical records. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s current chronic fatigue is the result of a viral disease contracted during her period of ACDUTRA. The medical opinions of record are in equipoise as to whether the Veteran currently has a chronic fatigue disability that is related to her period of ACDUTRA. In such a case, reasonable doubt must be resolved in favor of the Veteran. Moreover, as the Veteran has had medical training, she is a nurse, the Board finds her statements credible as to the symptomatology she has reported having throughout the years. As such, the evidence demonstrates the Veteran currently has a chronic fatigue disability that is the result of her inservice her viral infection and history of mononucleosis during ACDUTRA, the Board will resolve reasonable doubt in the Veteran’s favor, and grant service connection for chronic fatigue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.