Citation Nr: 21024565 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-28 657A DATE: April 23, 2021 ORDER New and material evidence to reopen the claim of entitlement to service connection for fatigue, has been received. Entitlement to service connection for chronic fatigue syndrome, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. FINDINGS OF FACT 1. November 2006 and March 2008 RO decisions denied service connection for fatigue on the basis that there was no evidence that fatigue that was related to service. A 2. The evidence received since the March 2008 RO decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for fatigue. 3. The preponderance of the evidence weighs against a finding that the Veteran has chronic fatigue syndrome at this time. CONCLUSIONS OF LAW 1. The November 2006 and March 2008 RO decision that denied service connection for fatigue is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103. 2. New and material evidence has been received since the March 2008 RO denial of service connection for fatigue, and that claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for chronic fatigue syndrome, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from December 1981 to May 1991 with service in with service in Southwest Asia. His decorations for his active duty service include a Combat Action Ribbon. This matter is on appeal from a July 2016 rating decision. In February 2021, the Veteran testified at a Virtual Hearing with the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence Claim The Veteran most recently filed a request to reopen his claim for entitlement to service connection for fatigue in May 2016. At the time of his last final denial, evidence of record included service treatment records (STRs), lay statements, and VA and private treatment records. Since the last final denial, evidence added to the record includes additional statements from the Veteran, hearing testimony, additional VA treatment records, and records from the Social Security Administration. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for fatigue is reopened. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air 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 not later than December 31, 2011. 38 C.F.R. § 3.317 (a)(1). The Veteran claims that he has chronic fatigue syndrome that is related to his service. The service treatment records are void of findings, complaints, symptoms, or any diagnosis related to fatigue. Post-service VA treatment records include additional complaints of fatigue. A March 2019 hematology and oncology report indicates a complaint of chronic fatigue, an assessment that includes pernicious anemia, and recommendation for the Veteran to continue receiving monthly B12 shots. On May 2017 VA chronic fatigue syndrome Disability Benefits Questionnaire examination the Veteran presented with a history of anemia with underlying severe thrombocytopenia and chronic leukopenia. He required multiple blood transfusions and a platelet transfusion. In May 2017, the Veteran received emergency room care and was given a B12 injection. Based on a thorough review of the claims file and an examination of the Veteran, the examiner opined that there was insufficient evidence to support any current diagnosis of chronic fatigue syndrome. The examiner further opined that the Veteran’s subjective symptoms of fatigue were more plausibly explained by his chronic anemia and that there was no current diagnosis for the claimed disability. In February 2021, the Veteran testified that he first noticed symptoms of fatigue in 2004 and received a B12 shot every two weeks to help with fatigue. The Veteran further testified that he had not been diagnosed with chronic fatigue. The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran has had any diagnosed chronic fatigue syndrome during or since the Veteran’s active service. As the competent medical evidence does not show diagnosis of, or disability related to chronic fatigue syndrome, service connection is denied. See Brammer, supra; see also McClain, supra; Romanowsky, supra; Saunders, supra. There is no indication that any subjective complaints of fatigue result in functional impairment of earning capacity. See Hunt, supra; Saunders, supra; Wait, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of chronic fatigue syndrome and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. Therefore, service connection for chronic fatigue syndrome is not warranted. To the extent that the Veteran’s symptoms of fatigue are related to anemia, a December 2017 rating decision confirmed and continued a previous denial of service connection for pernicious anemia. Therefore, anemia may not serve as a predicate service-connected disability upon which to base this claim, and any claim based on “secondary” service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). (Continued on the next page)   The Board has taken the contention that the Veteran has chronic fatigue syndrome that is related to his service, seriously. Although the Veteran might believe that he has chronic fatigue syndrome that is etiologically related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that he has a current diagnosis of chronic fatigue syndrome. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the existence of a current diagnosis of chronic fatigue syndrome, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has chronic fatigue syndrome that is related to his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.