Citation Nr: 21016102 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-14 289 DATE: March 19, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran has a chronic disability manifested by fatigue and diagnosed as CFS, a qualifying medically unexplained chronic multisymptom illness (MUCMI) without conclusive pathophysiology or etiology, due to his Persian Gulf service. CONCLUSION OF LAW The criteria for entitlement to service connection for CFS as a qualifying chronic disability under 38 C.F.R. § 3.317 have been met on a presumptive basis as incurred during the Veteran’s Persian Gulf War service. 38 U.S.C. § 1110, 1117, 1131; 38 C.F.R. § 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1989 to June 1993. This matter returns to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board previously remanded this claim for additional development in an October 2019 decision. As will be discussed in more detail below, substantial compliance with the October 2019 directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for CFS is granted. The Veteran contends his CFS was caused by or incurred during his Persian Gulf War service. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a Persian Gulf Veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a MUCMI. 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for six months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a MUCMI such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2)(i). MUCMI has been defined as a “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.” 38 C.F.R. § 3.317 (a)(2)(ii). “Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.” Id. Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a MUCMI that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). Here, the Veteran’s DD-214 reflects active service in the Southwest Asia theater of operations from January 17, 1991 to February 28, 1991 and receipt of the Southwest Asia Service Medal. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). When service connection cannot be established on a presumptive basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). Entitlement to benefits may be found through direct service connection by establishing: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,” also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the relevant evidence of record, upon entrance, the Veteran declined experiencing frequent trouble sleeping and was clinically evaluated as normal. See January 1988 entrance examination. Unfortunately, additional service treatment records (STRs) were unable to be located. See April 2014 Development Letter. In such situations, where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. The Veteran was provided notice and given the opportunity to submit copies of his STRs or provide a location from which they could be obtained. Id. To date, additional STRs have not been provided. The Veteran stated he was deployed in an area that was “stationed extremely close” to the coast of Iraq in an “ocean mine field.” See October 2013 Correspondence. He recalled more than one occasion when “chemical weapons were exploded near our ship” causing the chemical alarms to sound and masks to be used. Id. The Veteran stated that he saw oil wells on fire with the smoke from said fires drifting toward his ship. Id. The Veteran also reported that he served as an electrical engineering officer servicing pipes that were insulated with asbestos. Id. The Veteran stated that he has suffered from sleep disturbances and breathing difficulties for years. Id. The Veteran carries a diagnosis of obstructive sleep apnea (OSA) for which service-connection has already been granted. Following separation, the Veteran continued to report excessive sleepiness. See June 2012 VA treatment records. In 2014, the Veteran reported that he was “doing well” with his CPAP for OSA. See 2014 VA treatment records. During an examination, the Veteran reported that he was an officer during the Gulf War experiencing exposure to smoke, chemical weapons, solvents, and fuel fumes. See May 2014 non-government treatment records. He reported “a lot of trouble” with developing symptoms after he returned from overseas. Id. The Veteran stated that upon return, he sought care for the symptoms, but that his records were lost. Id. Of relevance, the Veteran complained of chronic fatigue during the examination indicating that he did not have this problem before serving overseas from 1990-1992. Id. He was assessed with chronic insomnia. Id. The Veteran returned continuing to report complaints related to his chronic insomnia. See July 2014 non-government treatment records. The provider stated, “I believe that he has Gulf War Syndrome based on the evidence that has been shown [to] me.” Id. In 2016, the Veteran reported using his CPAP but still was tired “often.” See October 2016 VA treatment records. In a separate appointment, the Veteran said that he does not feel like CPAP helps because his sleep is “good” some days and “not so good” other days. See June 2016 non-government treatment records. The Veteran’s chronic insomnia assessment remained with a note “still having some problems with sleep at times.” See June 2016 non-government treatment records. In 2017, the Veteran complained of continued sleep disturbance noting that CPAP has work for only “some of his sleep issues.” See March 2017 non-government treatment records. The Veteran said that he still has times where he is waking up “feeling like he is still in the military.” Id. Chronic insomnia remained a diagnosis with a notation that the Veteran still has some sleep issues as a result of his military experience. Id. In 2018, the Veteran continued to complain of sleep disturbances. See March 2018 non-government treatment records. His assessment of chronic insomnia remained with the provider noting “he still has sleep problems as a result of being in the service.” Id. The Veteran has been afforded multiple VA examinations to determine the nature and etiology of his sleep disorders including CFS and OSA, the first of which occurred in January 2014. During a Gulf War examination, the Veteran was noted to have a diagnosis of CFS. See January 2014 VA examination. The examiner found that of the conditions listed, including CFS, the Veteran did not have a diagnosed illness for which no etiology was established. Id. The examiner reasoned that the Veteran’s CFS is a disability pattern with a clear and specific etiology and diagnosis that is not related to Gulf War service. Id. The examiner found that the Veteran’s fatigue is due to OSA. Id. In a CFS Disability Benefits Questionnaire (DBQ), the examiner found that the Veteran does not have a diagnosis of CFS. See January 2014 CFS DBQ. Rather, the examiner opined that the Veteran developed fatigue during service that is secondary to sleep apnea. Id. In April 2020, a VA examiner opined that the Veteran’s fatigue is at least as likely as not caused by service in Southwest Asia. See April 2020 VA examination. The Veteran reported that he was stationed roughly 20 miles off the coast of Iraq describing oil fires of multiple oil wells along with an unspecified number of oil-filled low-lying areas. Id. He reported that his fatigue began as soon as he left the military. Id. The examiner reasoned that the Veteran reported fatigue upon separation, although he has a diagnosis of OSA which might offer some explanation. Id. The examiner explained, however, OSA represents one of the most prevalent chronic respiratory disorder. Id. Ultimately, the examiner found that the Veteran’s disability pattern is a diagnosable but medically unexplained with an unknown etiology. Id. Thus, the fatigue is presumed to be caused by service in the Southwest Asia theater of operations. Id. Most recently, a CFS DBQ was completed in August 2020 wherein the examiner indicated the Veteran has a diagnosis of CFS. See August 2020 CFS DBQ. The examiner found that the Veteran’s symptoms wax and wane. Id. A private provider opined the Veteran’s chronic fatigue is a MUCMI without a conclusive pathophysiology or etiology. See July 2014 non-government treatment record. The provider reasoned that the Veteran’s disability has existed for 6 months or more and has intermittent episodes of improvement and worsening. Id. The examiner found no affirmative evidence that the Veteran’s CFS was not incurred during service in the Southwest Asia theater of operation, was caused by a supervening condition or event, or a result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. Id. The provider reasoned that the Veteran’s CFS became manifest during service or to a degree of 10 percent or more not later than December 31, 2016 and that CFS cannot be attributed to any known clinical diagnosis. Id. The examiner relied upon the Veteran’s service during the Persian Gulf War where he was on a ship “deluged with smoke” from burning oil wells on a daily basis, “constantly” hit with high winds carrying fine sand particles, and “attacked” with chemical weapons on more than one occasion. Id. He stated that considering the Veteran’s fatigue as definitively connected to OSA would be incorrect because it should be considered on its own merit. Id. Ultimately, the provider opined that the Veteran’s CFS is a diagnosable but medically unexplained MUCMI that is at least 10 percent disabling and can be directly attributed to his service and hazardous environmental exposures during the Gulf War. Id. The Board finds the April 2020 VA examination includes consideration of the Veteran’s medical history and sets forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered together and with the entire evidence of record, the Board finds the examination report adequate for adjudication of the Veteran’s service connection claim because it is based upon an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board finds the competent and credible medical evidence of record indicates the Veteran has been diagnosed with CFS. While the January 2014 VA examiner found that the Veteran did not have a diagnosis of CFS, the April 2020 VA examiner did as well as the August 2020 VA examiner and the 2014 private provider. Thus, at a minimum, the evidence is in equipoise. As such, the Veteran is entitled to resolution of the doubt in his favor. As noted above, service connection is warranted 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 or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. As per the diagnostic criteria, a 10 percent rating for CFS is warranted when symptoms are controlled by continuous medication. 38 C.F.R. § 4.88b, Diagnostic Code 6354. The Veteran’s most recent CFS DBQ indicates he does not take medication for his CFS. The Board finds, however, that the Veteran competently and credibly reported that his CFS symptoms began during service. As part of the 2014 VA examination, the Veteran reported that his fatigue and difficulty sleeping began during service even reporting his symptoms in sick call. The examiner, however, attributed these symptoms only to OSA because a diagnosis of CFS was not found during the examination. Unfortunately, as previously mentioned, the Veteran’s STRs were unable to be located. The Board has no reason to doubt the credibility of the Veteran regarding onset of fatigue. Indeed, the Veteran’s other service-connected conditions related to his Persian Gulf War service had similar symptom onset. Further, even the January 2014 VA examiner indicated the Veteran’s fatigue began during service. Resolving any doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects symptom onset during service in the Southwest Asia theater of operations. The evidence has not shown a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or affirmative evidence that his chronic fatigue syndrome is the result of his own willful misconduct or the abuse of alcohol or drugs. While the 2014 VA examiner attributed the Veteran’s fatigue to his service-connected OSA, the Board finds highly probative the 2014 private provider’s opinion that the Veteran’s fatigue should be considered in its own right. Indeed, the Veteran’s continued complaints of fatigue despite OSA treatment further corroborates the 2014 private provider’s opinion that the Veteran’s fatigue is in and of itself a separate condition. Thus, the Board assigns more probative value to the 2014 private provider’s opinion that the Veteran’s fatigue is not secondary to his OSA. The Board also notes that service connection can be granted on a direct basis based upon the April 2020 VA examiner’s direct nexus opinion that is highly probative as the examiner considered the Veteran’s reports of symptom onset and the circumstances surrounding his service. As service connection is being granted herein on a presumptive basis under 38 C.F.R. § 3.317, the Veteran’s contentions regarding potential herbicide agent exposure need not be addressed. (Continued on the next page)   Based on the above, and resolving all doubt in favor of the Veteran, the Board concludes service connection for CFS is warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.