Citation Nr: 21015348 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-41 353A DATE: March 17, 2021 ORDER The petition to reopen the previously denied claim for service connection for sinus disability is granted. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a respiratory condition (other than OSA) to include sinusitis and rhinitis is remanded. FINDINGS OF FACT 1. An unappealed June 2008 rating decision denied service connection for sinusitis; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had CFS, or any related disability, at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying the claim for service connection for sinus disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 2. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.88A. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to January 1990 (Active Duty Training) and from November 1990 to July 1991 (active duty) with Southwest Asia (SWA) service in Kuwait between March and May 1991. The Veteran is a Persian Gulf veteran. 38 C.F.R. § 3.317(e)(1), (2). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the issues for additional development. The Board finds that there has been substantial compliance with the Board’s prior remand directives as to the matters adjudicated in this decision, but not as to those matters discussed in the remand portion of the decision below. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for sinusitis. The Veteran seeks service connection for sinusitis. He contends that he has experienced chronic sinus symptoms (e.g. difficulty breathing, sleep problems, dark discharge from his nose) since separation from service. He believes his symptoms manifest as CFS and are due to exposure to contaminants while serving in support of the Gulf War in Southwest Asia. The Board concludes that a June 2008 rating decision denying the claim for service connection for sinusitis is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A June 2008 rating decision denied the claim for service connection for sinusitis because the evidence did not show a clinically diagnosed sinus disability. The RO found that the Veteran’s service treatment records (STRs) were absent of any diagnosis or treatment for a chronic sinus condition; noted that the Veteran’s separation examination in 1991 included a normal clinical evaluation of the sinuses. A July 2008 letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.1103. In September 2011, the Veteran submitted a claim for service connection for sinus condition. As a claim for service connection for sinus condition had been previously adjudicated, the claim was construed as a request to reopen the previously denied claim. A June 2013 rating decision denied the claim. This appeal arises from the Veteran’s disagreement with the June 2013 rating decision. See Notice of Disagreement (NOD) (July 2013). At the time of the June 2008 prior final disallowance, the evidence of record did not show the presence of a current sinus disability. Evidentiary submissions received since the June 2008 prior final disallowance includes new and material evidence. Specifically, an August 2012 VA allergy clinic note reflects that the Veteran was seen for sinus complaints, rhinitis and sinusitis, that had been present for over 20 years and that he underwent a sinus CT, which disclosed “bilateral concha bullosaw/hypertrophy of nasal mucosa.” The assessment was chronic rhinitis and sinusitis. See CAPRI (August 2020). This evidence was not previously before adjudicators and tends to cure a prior evidentiary defect. Therefore, this evidence is new and material to the claim. Accordingly, the petition to reopen is granted. 2. Entitlement to service connection for chronic fatigue syndrome (CFS). The Veteran is claiming service connection for CFS. He submitted statements that he experiences symptoms of fatigue that began in service and are the result of exposure to toxins from “burn pits” while serving in support of the Gulf War in Southwest Asia. See VA 21-4138 (August 2012). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38U.S.C.§ 1117; 38C.F.R.§ 3.317(a)(1). A qualifying chronic disability includes a medically unexplained chronic multi symptom illness such as chronic fatigue syndrome. 38C.F.R.§ 3.317(a)(2). A diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38C.F.R.§ 4.88A. The Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Initially, the Board recognizes that a March 2011 VA examination listed CFS as a diagnosis. However, as previously noted by the May 2018 Board decision, it was “unclear whether the examiner considered the VA regulations above when he rendered the diagnosis.” See BVA Remand (May 2018). The Board remanded the matter in May 2018 to assess whether the Veteran manifested with CFS as defined by VA regulation under 38 C.F.R.§ 3.88 and, if so, whether such disability is manifested by a degree of 10 percent or more under VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. An October 2019 VA examination assessed the Veteran’s reported CFS symptomatology. See C&P Exam (September 2019). The examiner, upon review of the Veteran’s medical records and lay statements, concluded that the Veteran did not meet the criteria for CFS as per 38 C.F.R. § 4.87A. The Veteran reported experiencing debilitating fatigue after returning from Desert Storm in 1991. Fatigue was reported after exercise with additional symptoms of trouble staying asleep, generalized muscle aches and weakness, trouble concentrating, headache, and poor memory. The examiner noted that the Veteran reported reduced activity level to less than 50 percent of pre-illness level. Incapacitation for reported CFS symptoms was negative. A July 2020 VA opinion found that the Veteran did not meet the diagnostic criteria for CFS. See C&P Exam (July 2020). The examiner’s rationale noted that CFS is a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology and review of the Veteran’s case file does not support a diagnosis of chronic fatigue syndrome (CFS). He added that CFS is a diagnosis of exclusion after all other clinical conditions that may produce similar symptoms based on history, physical examination, and laboratory tests have been ruled out. He concluded that the Veteran’s case file “shows multiple other etiologies that may produce the symptoms the Veteran reported on the CFS DBQ including schizoaffective disorder, PTSD, OSA and obesity.” The examiner found that the Veteran’s symptoms were based on several diagnosable diseases and that the etiology of his reported symptoms was at least partially understood in regard to etiology and pathophysiology. While the March 2011 VA examiner noted ‘CFS’ as a diagnosis, this finding appears to be based on the Veteran’s self-reported medical history and does not consider current CFS diagnostic criteria set out at 38 C.F.R. § 4.88A. The October 2019 examination and July 2020 addendum opinion reviewed the Veteran’s symptoms and based the rule-out of CFS based on 38 C.F.R. § 4.88A and diagnostic criteria in accordance with the DSM-V. Consequently, the Board gives more probative weight to the findings of the October 2019 and July 2020 VA examiners. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current diagnosis of CFS, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of diagnostic criteria found in the DSM-V. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The findings of the 2019 examination are consistent with the clinical records that span from before the appeal period through the present. With a few notable exceptions, the Veteran consistently denied fatigue with his primary care physician. At no point in the record is there evidence of a diagnosis of chronic fatigue until the Veteran reported symptoms at a June 2011 VA compensation examination. The Board has considered 38 C.F.R. § 3.317 which allows for presumptive service connection of qualifying chronic disability resulting from either an undiagnosed illness or a MUCMI. The regulations define a MUCMI as “diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Here, the Veteran’s symptoms were not found to be meet the diagnostic criteria for CFS; furthermore, the pathophysiology and etiology of his reported symptoms were at least partially understood (e.g., schizoaffective disorder, PTSD, OSA and obesity) as per the VA examiners. As such, the Board finds that service connection for reported CFS symptoms as an MUCMI is not warranted. In the absence of proof of a present disorder, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As there is no diagnosis of chronic fatigue syndrome, the claim for service connection must be denied. Further, even if the symptom of fatigue, absent a diagnosis of CFS, constituted a disability for VA purposes, the Veteran is service-connected for PTSD, which is shown to include fatigue as a symptom, and which is already rated at 50 percent. It is noted that, in a July 2008 statement, the Veteran reported fatigue as a symptom of his mental disorder. He also reported fatigability at his February 2002 VA mental disorder examination in connection with his mental health problems. A veteran may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The exception is where a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for a respiratory condition (other than OSA) to include asthma, sinusitis and rhinitis is remanded. Issues: 1-3: The Veteran contends that he has respiratory disorders to include sinusitis and OSA, due his SWA service. Specifically, the Veteran attributes his respiratory problems to his exposure to fumes from oil fires in Saudi Arabia. He also asserts that his respiratory problems and sleep problems began right after he returned from Saudi Arabia. The Veteran’s respiratory disability symptoms were assessed during October 2019 and July 2020 VA examinations. See C&P Exam (October 2019); see C&P Exam (July 2020). Diagnoses of asthma, OSA, sinusitis, and rhinitis were identified. The examiner provided negative etiology opinions finding the Veteran’s respiratory disabilities were less likely than not etiologically due to claimed in-service injury, event, or disease. Regarding OSA, the associated VA medical opinion (VAMO) reflects that it is a disease with a clear and specific etiology and diagnosis, and that it is less likely than not likely that the sleep apnea is related to the Veteran’s SWA. The rationale was that (1) the literature supports OSA as a structural upper airway obstruction during sleep, (2) risk factors for OSA include obesity, gender, age and upper airway crowding such as enlarged tonsils, (3) the absence of documented signs, symptoms, complaints, consistent with a diagnosis of OSA during service, and (4) the 20 years intervening the Veteran’s SWA service on findings for OSA. This opinion is inadequate as to the question of direct service connection because, first, it relied on the absence of literature to support the conclusion without discussing facts specific to the Veteran. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran’s condition or individual circumstances is inadequate). Second, it relied on the absence of documented in-service findings when service connection may be established for disabilty shown after service when there is a medically sound basis for attributing such disability to service. See 3.303(d). See also, Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As to sinusitis, the VAMO is similarly inadequate insofar as it relied on the absence of in-service findings to support the negative conclusion reached as to the question of direct service connection. Give the above, remand is necessary to decide the appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to address the nature and etiology of the Veteran’s respiratory conditions to include OSA, asthma, sinusitis, and rhinitis). Obtain a detailed history as to the onset, progression, and severity of his claimed conditions—differentiating where appropriate. The examiner should address the following: (a.) Identify each respiratory disorder shown (e.g. OSA, asthma, sinusitis, rhinitis, etc.) (b.) For each condition shown, indicate whether it is at least as likely as not (50 percent or better probability) (i) had its onset during active service, or (ii) is otherwise related to in-service injury or disease to include environmental toxin exposure (e.g. burn pits) during the Veteran’s SWA service. Note (1): An adequate medical opinion may not be predicated solely on the absence of documented in-service diagnosis, complaints, or treatment. Note (2): If another etiology is the more likely cause, the clinician must identify the etiology (cause) and provide a complete explanation of his or her reasoning. Note (3): The clinician is not required to accept the Veteran’s theory that his military service caused his reported symptoms/disorders, or that he had symptoms associated with the disability during or following military service, but he/she must provide an explanation for rejecting any history provided (e.g. it is incongruous with the medically accepted understanding of the development of the disorder, or it is incongruous with other medical history or clinical findings, or it is implausible based on medical history, symptoms, or knowledge). Explain. 2. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.