Citation Nr: 21024961 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-14 773A DATE: April 27, 2021 ORDER Entitlement to service connection for fatigue, to include as a manifestation of chronic fatigue syndrome or an undiagnosed illness, is denied. Entitlement to service connection for headaches as a manifestation of an undiagnosed illness is denied. Entitlement to service connection for joint pain, to include as a manifestation of an undiagnosed illness, is denied. FINDINGS OF FACT 1. A diagnosis of chronic fatigue syndrome has not been rendered during the period on appeal or proximate thereto, and the Veteran’s reported fatigue is attributable to a known etiology and pathophysiology. 2. The Veteran’s headaches are attributable to a known etiology and pathophysiology. 3. The Veteran’s joint pain is attributable to a known etiology and pathophysiology, and the diagnosed joint disabilities manifested more than one year after separation and are not shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for headaches as a manifestation of an undiagnosed illness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for joint pain, to include as a manifestation of an undiagnosed illness, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in June 2018, and the requested opinions were obtained in March 2019 and April 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2018 the Board also denied entitlement to service connection for pancreatic cancer, which the Veteran did not appeal. 38 C.F.R. § 20.1100. As such, that issue is no longer on appeal. The Veteran and his representative were notified in March 2021 that the appeal had been returned to the Board and that they had a period of 90 days to submit additional evidence or argument. To date, neither have elected to submit any further evidence or argument in support of the appeal. As the Veteran and his representative have been afforded the opportunity to submit evidence or argument, the Board will proceed to adjudicate the claim on the merits. 38 C.F.R. § 20.5. Service Connection Generally, to establish service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Finally, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. A claimant’s signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 1. Entitlement to service connection for chronic fatigue syndrome. The Veteran argues that he experiences fatigue as a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, such as chronic fatigue syndrome. The Board notes that the Veteran has qualifying service in Southwest Asia, and therefore service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis. 38 U.S.C. § 101(33); 38 C.F.R. § 3.317(e)(1)–(2). While the Veteran is competent to report that he experiences fatigue, he is not competent to state that he has chronic fatigue syndrome as diagnosing a specific disability requires medical training and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Veteran’s assertions that he has chronic fatigue syndrome specifically are entitled to no probative weight. VA obtained an opinion concerning the Veteran’s reported fatigue in March 2019. The examiner stated that a diagnosis of chronic fatigue syndrome was not warranted in this case. The examiner further explained that chronic fatigue syndrome is a diagnosis of exclusion, meaning that a diagnosis of chronic fatigue syndrome is not appropriate if there is an otherwise identifiable source for the fatigue. To this end, the examiner stated that while the Veteran did have chronic fatigue the fatigue was attributable to his pancreatic cancer, specifically the treatment therefor. The examiner concluded that as the medical evidence of record clearly showed the Veteran’s fatigue was due to his cancer treatment, a diagnosis of chronic fatigue syndrome was not appropriate. There is no evidence that the above examiner was either not competent or credible. Further, the examiner provided a well-reasoned rationale in support of his opinion, which included a discussion of how to diagnose chronic fatigue syndrome, a discussion of other likely causes of the Veteran’s fatigue, and citations medical evidence associated with the file. As such, the Board finds that the opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Private treatment records associated with the file include a July 2011 letter from the Veteran’s private physician which stated that the Veteran experienced on-going fatigue associated with his pancreatic cancer and the associated treatment. None of the other records associated with the file indicate that the Veteran has a diagnosis of chronic fatigue syndrome, or that the Veteran’s fatigue is attributable to a medically unexplained illness or an undiagnosed illness. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s fatigue is a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Both the March 2019 VA examiner and the Veteran’s private physician clearly attributed the Veteran’s fatigue to his pancreatic cancer and its associated treatment, and not to either an unknown cause or a medically unexplained chronic multi-symptom illness. There is no other competent evidence of record indicating that the reported fatigue is attributable to an unknown cause or that the Veteran has a diagnosis of a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome. As such, entitlement to service connection for fatigue as a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. 38 C.F.R. §§ 3.102, 3.317. As noted above, the medical evidence reflects that the Veteran’s fatigue is attributable to his pancreatic cancer. However, service connection for pancreatic cancer was denied in the prior June 2018 Board decision. 38 C.F.R. § 20.1100. As service connection for that disability was denied in the prior Board decision as part of the instant appeal, the Board will not again address whether service connection for pancreatic cancer is warranted here. 38 C.F.R. § 20.1303. The preponderance of the evidence weighs against a finding that the Veteran’s fatigue is a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for headaches. The Veteran has asserted that his headaches are a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. While the Veteran is competent to report lay observable symptoms such as headaches, he is not competent to opine as to their etiology as to do so requires medical training and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. at 435. As such, the Veteran’s assertions that his headaches are due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness are not competent and are entitled to no probative weight. VA obtained an opinion concerning the Veteran’s headaches in April 2013 and March 2019. In April 2013 the examiner stated that the Veteran did not have any disabilities of unknown etiology. The examiner noted that the Veteran reported headaches at the time, but also noted that the Veteran stated that the headaches were associated with his treatment for pancreatic cancer. The March 2019 examiner noted that the Veteran had a diagnosis of migraine headaches, including migraine variants. The examiner then stated that migraine headaches is a disease with a clear and specific etiology, and is not a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. There is no evidence that the above examiners were either not competent or credible. Further, both examiners supported their opinions with well-reasoned rationales that cited to the Veteran’s own statement and the nature of migraine headaches. As such, the Board finds that each respective examination report is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. None of the other medical evidence of record indicates that the Veteran’s headaches are a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s headaches are a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. The only competent and credible evidence of record are the VA examiners’ opinions, which noted that the Veteran reported an onset of headaches associated with his pancreatic cancer treatment and that migraines are a disease with a clear and specific etiology. As such, entitlement to service connection for headaches as a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. 38 C.F.R. §§ 3.102, 3.317. While the medical evidence reflects that the Veteran has migraine headaches, the Veteran was separately denied service connection for migraine headaches in an unappealed April 2013 rating decision. 38 C.F.R. § 20.1103. As such, the Board will not address the question of whether the Veteran’s headaches are causally related to his period of service. Should the Veteran wish to pursue a claim for service connection for migraine headaches, he may file a claim for service connection for migraines using the appropriate form. The preponderance of the evidence weighs against a finding that the Veteran’s headaches are a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. For these reasons, the claim is denied. 3. Entitlement to service connection for joint pain. The Veteran has asserted that he experiences joint pain that is a manifestation of an undiagnosed illness or of a medically unexplained chronic multi-symptom illness. While the Veteran is competent to report lay-observable symptoms such as joint pain, as a lay person he does not have the medical training or knowledge required to provide a competent opinion as to the etiology of the reported joint pain. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. at 435. As such, the Veteran’s statements attributing his joint pain to a medically unexplained chronic multi-symptom illness or an undiagnosed illness are not competent and are entitled to no probative weight. VA obtained medical opinions concerning the etiology of the Veteran’s joint pain in March 2019 and April 2019. Both the March 2019 and April 2019 examiners noted that the Veteran’s joint pain was not attributable to a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Both examiners then explained that the Veteran had degenerative joint disease in his bilateral knees and hips, which was responsible for his joint pain. Both examiners then concluded that the degenerative joint disease was consistent with the natural aging process, and therefore was a diagnosis with a clear and specific etiology and pathophysiology. The April 2019 examiner additionally noted a left knee medial meniscus tear in 2006 but stated that this disability had a clear and specific etiology, explaining that such injuries are common and caused by any activity that involves twisting or rotation of the knee. There is no evidence that the above examiners were either not competent or credible. Further, both examiners supported their opinions with well-reasoned rationales that cited to the medical evidence of record, provided diagnoses underlying the Veteran’s reported symptoms, and opined as to the etiology of the diagnosed disabilities. As such, the Board finds that each respective examination report is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. None of the other medical evidence of record indicates that the reported joint pain is a manifestation of either a medically unexplained chronic multi-symptom illness or an undiagnosed illness. In light of the above, the preponderance of the evidence is against a finding that the Veteran’s joint pain is a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness. Both the March 2019 and April 2019 examiners clearly explained that the reported joint pain was due to degenerative joint disease in the Veteran’s knees and hips, which in turn was due to the natural aging process. As such, entitlement to service connection for joint pain as a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness is not warranted. 38 C.F.R. §§ 3.102, 3.317. Further, the diagnosed knee and hip disabilities are not causally related to the Veteran’s period of service. The Veteran’s service treatment records do not reflect any treatment for knee or hip symptoms or a diagnosis of any hip or knee disability during service. The Veteran’s April 1991 separation examination noted that the Veteran’s knees and hips were normal, and on his separation report of medical history the Veteran denied any current or history of problems with swollen or painful joints, arthritis, or knee issues. Further, both the March 2019 and April 2019 examiners stated that the Veteran’s bilateral hip and knee degenerative joint disease was less likely than not related to his period or service, and instead was more likely due to the natural aging process, noting that the degree of degenerative joint disease present was age appropriate. There is no evidence that either examiner was not competent or credible, and both examiners provided well-reasoned rationales for their opinions concerning the etiology of the disabilities. Therefore, they are entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. There is no other evidence indicating that the Veteran’s knee or hip disabilities are causally related to his period of service. Based on the foregoing, the preponderance of the evidence is against a finding that the diagnosed knee and hip disabilities are causally related to the Veteran’s service. The Veteran’s service treatment records do not reflect any treatment for knee or hip disabilities, the Veteran specifically denied any current or history of joint issues at separation in April 1991, and none of the medical evidence links his diagnosed disabilities to his period of service. As the preponderance of the evidence is against a finding of a nexus, service connection for the diagnosed bilateral hip and knee disabilities is not warranted. 38 C.F.R. §§ 3.102, 3.303. While arthritis is considered a chronic disease for VA purposes, there is no evidence that the Veteran was diagnosed with arthritis in service or that the disability manifested to a compensable degree within one year of separation. Service treatment records are silent for treatment for knee or hip disabilities and the Veteran denied any joint issues at separation. There are no records indicating that the Veteran received treatment for or was diagnosed with arthritis within the one year period following his separation from service. As such, service connection for the bilateral hip and knee disabilities based on the presumption in favor of chronic diseases is not warranted. 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence weighs against a finding that the Veteran’s joint pain is a manifestation of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, or that his bilateral hip disabilities are causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.