Citation Nr: 21025784 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-04 820 DATE: April 29, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) (to include as secondary to a medically unexplained chronic multisymptom illness [MUCMI] attributable to Persian Gulf War service) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) (to include as secondary to posttraumatic stress disorder [PTSD] or a medically unexplained chronic multisymptom illness attributable to Persian Gulf War service) is remanded. Entitlement to service connection for arteriosclerosis obliterans is remanded. FINDING OF FACT The evidence of record establishes that the Veteran has never been diagnosed with chronic fatigue syndrome. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue syndrome (to include as secondary to a medically unexplained chronic multisymptom illness attributable to Persian Gulf War service) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1985 to April 1986, and then again from November 1990 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued August 2013 and May 2014 by Department of Veterans Affairs (VA) Regional Offices (RO). By way of background, these claims on appeal were previously before the Board on March 22, 2019 and October 26, 2020, each of which times the claims were remanded. The Veteran was issued with a Supplemental Statement of the Case (SSOC) on February 17, 2021. The Board reasserts jurisdiction accordingly. For the reasons to be recounted below, the Board concludes that the Veteran has been afforded substantial compliance with remand directives pertaining to the claim for service connection for CFS only. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On the other hand, the Veteran has not been afforded substantial compliance with respect to the claims for service connection for OSA or for arteriosclerosis obliterans; therefore, these claims are remanded. See id. Service Connection 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 may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law provides compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A “Persian Gulf Veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2(i). Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability 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, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term “objective indications of chronic disability” includes 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). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest). Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis. 38 C.F.R. § 3.317(a)(2)(i)(B)(3). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for chronic fatigue syndrome (CFS) (to include as secondary to a medically unexplained chronic multisymptom illness [MUCMI] attributable to Persian Gulf War service) is denied. The Board has fully and sympathetically reviewed the entire evidence of record, including but not limited to the Veteran’s complete service treatment records and all relevant post-service medical records. The Veteran has also submitted to updated VA examinations since the most recent remand, which have fully considered the Veteran’s theories of secondary service connection and all applicable presumptions arising from his verified service in the Southwest Asia theater of operations. See generally 38 C.F.R. § 3.317, supra; Stegall v. West, supra; C&P Exams (Jan. 14, 2021) (rec’d Jan. 18, 2021). The Board cannot escape the conclusion that the Veteran has never been diagnosed with CFS during the pendency of the appeal. See C&P Exam ( Jan. 14, 2021 ), supra, at Question No. 1A (responding “No” to “Does the Veteran currently have chronic fatigue syndrome [CFS]?); C&P Exam ( Dec. 14, 2015 ), at Question No. 1 (responding “No” to “Does the Veteran now have or has/she ever been diagnosed with chronic fatigue syndrome?”); see also C&P Exam ( Jan. 14, 2021 ), supra, at Question No. 3A (responding “No” to “Does the Veteran now have or has the Veteran had any findings, signs and symptoms attributable to chronic fatigue syndrome?”). As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to…filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has submitted to VA examinations before and after the most recent remand, and all examiners have concluded that no diagnosis of CFS is warranted. The Board acknowledges the United States Court of Appeals for Veteran’s Claims (Court)’s holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of chronic fatigue syndrome. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In addition, the record does not reflect, and the Veteran has not alleged, that he suffers from impairment of earning capacity due to his claimed chronic fatigue syndrome that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609 (Aug. 26, 2020). Therefore, as the evidence of record shows that the Veteran does not have a current CFS disorder, the Board concludes that service connection is not warranted and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). In the instant case, the Board finds that the Veteran is competent to report his symptoms of fatigue. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. 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 which shows that he does not have a current diagnosis of chronic fatigue syndrome. The Board further concludes that as the Veteran has been afforded every opportunity to substantiate his relevant diagnoses, he has been afforded substantial compliance with the previous remand directives. See Stegall, supra; Dyment v. West, 13 Vet. App. 141, 146-7 (1999); 38 U.S.C. § 5103A(b); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for CFS (both including as claimed as secondary to service-connected PTSD, or otherwise due to service—including Persian Gulf War service), and for these reasons, these two claims each must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 2. Entitlement to service connection for obstructive sleep apnea (OSA) (to include as secondary to posttraumatic stress disorder [PTSD] or a medically unexplained chronic multisymptom illness [MUCMI] attributable to Persian Gulf War service) is remanded. The record reflects that the Veteran has a current diagnosis of obstructive sleep apnea, and an already service-connected diagnosis of PTSD as well. However, as of the Board’s prior remand, the medical opinions obtained only addressed whether PTSD was causing PSA—not whether PTSD was alternatively aggravating OSA beyond its natural progression. On this basis, the Veteran’s claim was duly remanded. Updated VA examinations were administered in January 2021, and these reports have been associated with the claims file. See C&P Exams (Jan. 14, 2021) (rec’d Jan. 18, 2021). However, the Board concludes that the January 2021 examination is inadequate. The most recent opinion of record appears to cite that “The Veteran was not diagnosed with sleep apnea until after separation from service” as the only evidence as to why service connection for OSA is not warranted. See C&P Exam ( Jan. 14, 2021 ), at Question No. 3b-c. To the extent that this examiner appears to have relied on an absence of a sleep apnea diagnosis in service, medical opinions that rely solely on absence of evidence from the record are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of an in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). Regardless, the January 2021 VA examiner’s opinion is also not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion”). Finally, the Board also notes that the Veteran has contended that his diagnosed obstructive sleep apnea may be attributable to his service-connected traumatic brain injury. See NOD (rec’d May 15, 2014 ). The Veteran offers a specific medical study in potential support of his offered theory. Meanwhile, the Veteran’s traumatic brain injury was only recently granted service connection, albeit effective December 28, 2010. See Rating Decision (Feb. 17, 2021). There is no medical opinion of record opining whether it is at least 50 percent likely that the Veteran’s OSA is secondary to his service-connected TBI. For these reasons, a remand is required to fully address the Veteran’s contentions. 3. Entitlement to service connection for arteriosclerosis obliterans is remanded. The Board concludes that a remand is required as to the Veteran’s claim for service connection for arteriosclerosis obliterans. The most recent VA examination of record, which was performed in January 2021, simply opines that the Veteran’s disorder is less than 50 percent likely attributable to service because “[The] Veteran was diagnosed with peripheral vascular disease in 2012, [but he] left active duty [in] 1991. Therefore, there was no peripheral vascular disease with residuals diagnosed during service.” See C&P Exam ( Jan. 14, 2021 ), at Question No. 3b-c. To the extent that this examiner appears to have relied on an absence of a peripheral vascular disease diagnosis in service, medical opinions that rely solely on absence of evidence from the record are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of an in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). Regardless, the January 2021 VA examiner’s opinion is also not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion”). Accordingly, an addendum opinion is required. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal, namely for sleep apnea (to include as secondary to PTSD and/or TBI) and a peripheral vascular disorder (claimed as arteriosclerosis obliterans). After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the VA examiner of record who performed examinations on January 14, 2021; or, if they are unavailable, to a similarly qualified VA examiner. The examiner must provide an addendum opinion as to service connection for obstructive sleep apnea that specifically indicates the relevance, or lack thereof, of the Veteran’s service-connected traumatic brain injury, a specific study referenced in the Veteran’s May 2014 Notice of Disagreement, and whether those results would change any conclusions from those rendered in January 2021. The need for further in-person examination is left to the discretion of the examiner. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence, the VA examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is related to his service? (b.) Is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea was caused or aggravated (worsened beyond natural progress) by his service-connected PTSD with traumatic brain injury? In providing the requested opinion, the examiner is advised that the term “at least as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that is medically sound to find in favor of causation as to find against causation. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings must be indicated in the report. The Board also asks that the examiner consider the medical literature cited to in the May 2014 Notice of Disagreement when making his/her opinion. 3. Obtain addendum opinions regarding the etiology of all diagnosed vascular diseases from, if possible, the medical professional who performed the January 2021 VA examination. A new examination of the Veteran is not required unless the medical professional designated to provide the below opinions finds one is necessary. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, the medical professional is requested to provide the following opinions: (a.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s peripheral vascular disease and residuals began during, are etiologically related to his active duty service, to include as due to exposure to toxins in the Southwest Asia Theater of Operations. Why or why not? (b.) If the answer to subpart (a) is in the affirmative, i. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran experiences fatigue which is caused by peripheral vascular disease (to include surgical intervention). Why or why not? ii. Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran experiences fatigue which is aggravated by peripheral vascular disease (to include surgical intervention). Why or why not? A complete rationale for each opinion is required. Citation to accepted medical literature and principles (or lack thereof) would be of great assistance to the Board. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.