Citation Nr: 21022683 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-42 649A DATE: April 19, 2021 ORDER Service connection for a chronic fatigue syndrome is denied. FINDING OF FACT The record is devoid of any competent evidence establishing the claimed disability. CONCLUSION OF LAW The criteria for service connection for a chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from July 1988 to December 2000, to include her service in the Southwest Asia during the Gulf War. In an August 2015 rating decision, the Regional Office (RO) denied her claim for service connection for a chronic fatigue syndrome (CFS). The Veteran appealed. In February 2017, the Veteran testified at the Board’s hearing, a transcript of which is of record. In December 2018, the Board denied the claim, due to the absence of any competent evidence establishing the existence of the claimed disability. The Veteran then appealed the Board’s decision to the U.S. Court of Appeals for the Veterans’ Claims (Court). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the Board’s decision for further development. Per JMPR, the parties agreed that the VA’s duty to assist the Veteran in obtaining her private medical treatment records may remain unfulfilled but was not adequately addressed by the Board. In October 2020, the Board remanded the claim to the RO to assist the Veteran with obtaining any of her outstanding medical treatment records potentially relevant to her claim. On October 29, 2020, the RO notified the Veteran that in order to assist her in obtaining her private treatment records, she needs to fill out, sign, and return the enclosed VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information. On December 11, 2020, absent any reply, the RO issued a notice advising the Veteran’s that the RO has obtained her VA treatment records and further reiterating the actions she needs to take in order for the RO to obtain on her behalf any private medical treatment records. On December 31, 2020, the RO received the Veteran’s statement (VA Form 21-4138) that she attempted on her own to retrieve her private treatment records, but her provider said that her records are in storage and it is not timely for him to locate them. The Veteran must fully cooperate with the VA’s reasonable efforts to obtain records from non-Federal agency or department custodians, to include providing necessary authorization for the release of medical records in a form acceptable to the person, company, agency, or other custodian holding the records. 38 C.F.R. § 3.159(c)(1). For the VA efforts to be deemed reasonable, VA generally must make two attempts. Id. As such, given that the RO contacted the Veteran twice in its attempts to secure the necessary authorization and release forms and further given her response that her private provider is unable to furnish the requested records, the Board finds that any further attempts to assist the Veteran in obtaining her private medical treatment records would be futile and thus VA had satisfied its duty to assist her to that end. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)-(d). No further unfulfilled VA’s duty has been expressly raised by the Veteran or reasonably raised by the evidence of record. Moving on to the merits of the claim, the Board has found that service connection for a CFS was not warranted in this case, as was explained by the Board in its December 2018 decision. In sum, establishing an entitlement to service connection, among other fundamental legal criteria, requires the competent evidence of record to show the existence of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a proof of the claimed disability, there is no valid claim for service connection. Id. Upon reviewing all evidence record viewed afresh and in light of newly submitted evidence, the Board has found that service connection for a CFS still must be denied. In her December 2020 statement, the Veteran states that VA already has the findings and medical records of a CFS through the VA Hospital. The Veteran explains that her CFS has been listed in the eBenefits section under her rated disabilities for years and she is not sure why it is just showing that her CFS is not service connected, as it is related to environmental hazards in the Gulf War, and she served during the Gulf War. The VA’s eBenefits disabilities section lists all historical claims to have ever been filed, to include both granted and denied claims. The fact that CFS is listed under disabilities in eBenefits simply means that the Veteran has previously claimed service connection for a CFS, which was denied. This is why it is listed as not service connected. The mere listing of the previously claimed CFS only shows that the Veteran claimed to have CFS, it does not establish that medical evidence has found that she has or ever had a CFS, an existence of which must be shown by the competent evidence of record. Ultimately, the competent evidence of record fails to show the existence of CFS. The Veteran is not shown to have specialized knowledge, training, or experience in such fields as medicine, epidemiology, or pathophysiology. As such, she lacks the competency to diagnose medical disabilities, although she may competently report the symptoms she experiences and a diagnosis rendered by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such lay reports may warrant further development but on their own are insufficient to establish the basis for service connection and must be corroborated by competent medical evidence. Competent medical evidence means the evidence provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions; statements conveying sound medical principles found in medical treatises; and statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a). The Board has carefully considered the February 2017 hearing transcript reflecting the Veteran’s statement that she was diagnosed with a CFS by her private provider in 2007 as well as by a VA doctor sometime between 2012 and 2014. However, a July 2015 VA examination report reflects a medical opinion that the Veteran had never been diagnosed with CFS. On examination, the examiner further found no clinically significant findings, signs, or symptoms attributable to CFS. Upon considering the associated symptoms reported by the Veteran, namely, tiredness and sluggishness due to her sleep problems, the examiner opines that the Veteran’s underlying sleep problems and the secondary symptoms of tiredness and sluggishness are attributable to her service-connected anxiety disorder. Otherwise, the medical evidence altogether fails to corroborate the Veteran’s report of having the symptoms of CFS or having been diagnosed with CFS. It is noted that a diagnosis of CFS requires more than just a showing of fatigue, which may be attributable to a number of disabilities. Rather, a series of symptoms are required to establish a diagnosis of CFS. Of note, the Veteran’s August 2015 Notice of Disagreement reflects her unequivocal statement that her CFS is secondary to her service-connected anxiety disorder, suggesting that she believes that her fatigue is related to her psychiatric disability. In an April 2021 Appellate Brief, the Veteran’s representative submitted hyperlinks (https://www.nap.edu/resource/19012/MECFS_ProposedDiagnosticCriteria.jpg) and (https://www.aafp.org/afp/2012/1015/p741.html), contending that the Veteran does have symptoms of CFS. However, the first referenced link is to a single-page flyer published by the Institute of Medicine (IOM), Proposed Diagnostic Criteria. Given that the diagnostic criteria listed in the flyer is proposed rather than the actual currently existing criteria accepted by any medical authority, the Board finds that this particular evidence has no probative value here at this time. Should the diagnostic criteria change in the future, the Veteran may submit a supplemental claim. Meanwhile, the Board may not accept any proposed fact as the actual fact. The second referenced link is to a medical article by Joseph R. Yancey and Sarah M. Thomas, Chronic Fatigue Syndrome: Diagnosis and Treatment, 86:8 Am. Fam. Physician, 741-746 (Oct. 15, 2012). The authors explain that the Centers for Disease Control and Prevention sets the criteria for chronic fatigue syndrome, to include severe fatigue lasting longer than six months, as well as presence of at least four of the following physical symptoms: post-exertional malaise; unrefreshing sleep; impaired memory or concentration; muscle pain; polyarthralgia; sore throat; tender lymph nodes; or new headaches. Of particular note, the article further states that CFS “is a clinical diagnosis that can be made only when other disease processes are excluded.” The authors reiterate that “CFS is a clinical diagnosis that can be made only when other etiologies of fatigue have been excluded.” The authors go on explaining that all criteria for CFS must be met before a clinical diagnosis may be rendered and patients with an established medical condition known to produce chronic fatigue should be excluded for any further consideration for CFS. As such, this medical literature fully supports rather than in any way undermines the VA examiner’s negative medical opinion. More specifically, per article, the CFS diagnosis requires at least four of the listed symptoms to be present and not attributable to any other pathophysiology known to produce those symptoms, namely, post-exertional malaise; unrefreshing sleep; impaired memory or concentration; muscle pain; polyarthralgia; sore throat; tender lymph nodes; or new headaches. The Veteran sleep problems and her impaired memory or concentration are attributable to her service-connected anxiety disorder, while her muscle pain and polyarthralgia are attributable to her service-connected fibromyalgia. Given that the reported symptoms are clearly attributable to specific pathophysiologies productive of fatigue, while CFS may be clinically diagnosed only when all other etiologies productive of the same symptoms have been ruled out, the Board finds no deficiencies in the VA examiner’s opinion. Of note, the JMR also identified no flaw in the examination report, choosing to attack the Board decision only for not obtaining records which are unobtainable, rather than questioning the actual medical evidence. Further, the record reflects that the Veteran’s symptomatology is already comprehensively covered by the ratings for her psychiatric disorder at 70 percent and fibromyalgia at 40 percent. As such, the Board further finds that a re-examination (which may be warranted in some cases upon receipt of new medical evidence) is highly unlikely to reasonably substantiate the Veteran’s claim in this case or otherwise yield any additional benefit. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board acknowledges the representative’s discussion of a total disability due to individual unemployability (TDIU) rating, which is not on review in this appeal and thus the Board has no jurisdiction to decide here. The only issue in this appeal is whether the Veteran has been clinically diagnosed with a CFS at some point. (Continued on the next page)   Ultimately, the Veteran’s service treatment records do not reflect any complaints, treatment, or diagnosis of CFS. Her post-service treatment records, to include the most recent VA treatment records through February 2021, do not show any past or current diagnosis of CFS. The symptoms reported by the Veteran have been attributed to etiologies other than CFS, while the medical evidence of record fails to corroborate her reports of having been diagnosed with CFS. As such, the Board has no factual basis to find the existence of the claimed disability, which is the fundamental legal requirement for establishing an entitlement to service connection here. As noted, the Veteran lacks the medical training or expertise to clinically diagnose CFS. Accordingly, service connection for chronic fatigue syndrome is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.