Citation Nr: 21025954 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-27 367 DATE: April 29, 2021 ORDER Service connection for a disability manifested by fatigue, including chronic fatigue syndrome (CFS) and resulting from an undiagnosed illness, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a chronic disability manifested by fatigue, including CFS, as the result of an undiagnosed illness that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a chronic disability manifested by fatigue, including CFS or resulting from an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to January 1989 and from December 1990 to April 1991. This issue was remanded by the Board in March 2018, March 2020, and January 2021 for further development of the evidence. This has been accomplished and the issue has now been returned for further appellate consideration. Entitlement to service connection for a disability manifested by fatigue, including chronic fatigue syndrome and resulting from an undiagnosed illness The Veteran contends that service connection should be established for a chronic disability manifested by fatigue. He believes that this is the result of his service in the Persian Gulf. The Veteran’s service personnel records reflect Persian Gulf War service. Service connection may be granted to a Persian Gulf War Veteran who exhibits objective indications of a “qualifying chronic disability.” 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 317(a)(1). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multi symptom illness defined by a cluster of signs or symptoms. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). CFS is listed as a medically unexplained chronic multi symptom illness. 38 U.S.C. § 1117(a)(2)(B); 38 C.F.R. § 3.317(a)(2)(B)(1). The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2021. 38 U.S.C. § 1117(a)(1)(B); (b)(2); 38 C.F.R. § 3.317 (a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). 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)(2)(ii)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(2)(ii)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi symptom illness include, but are not limited to, fatigue and muscle and joint pain. 38 U.S.C. §§ 1117(g)(1), (4), (5); 38 C.F.R. § 3.317(b)(1), (4), (5). Entitlement to service connection is possible for both (1) chronic fatigue syndrome as a medically unexplained chronic multi symptom illness defined by a cluster of signs or symptoms and (2) fatigue as a signs or symptom which may be a manifestation of undiagnosed illness or a chronic multi symptom illness. Review of the Veteran’s service treatment records (STRs) shows that in March 1991, the Veteran reported having had symptoms of fever, fatigue, weight loss, or yellow jaundice. The report of examination at that time showed no chronic disability manifested by fatigue. Post-service medical evidence shows that the Veteran had complaints of multiple disabilities, including fatigue all of the time, in November 2004. An examination was conducted by VA in January 2015. The Veteran reported having a history of being tired easily and not having the “energy to do much,” which affected his day to day activities. On physical examination, the Veteran did not have any findings, signs, or symptoms attributable to CFS. The examiner indicated that the Veteran had a diagnosis of CFS and fatigue. The examiner also provided as remarks that the Veteran was claiming a disability pattern related to CFS and reported tiredness and fatigue. However, he had a diagnosable chronic multi symptom illness with a partially explained etiology. The examiner explained the Veteran had multiple psychiatric conditions to include posttraumatic stress disorder (PTSD) and depression. Insomnia was a significant contributor to fatigue. The examiner noted that the Veteran’s STRs were silent for any complaint of fatigue or signs or symptoms related to fatigue, and the lab work reviewed showed his blood count was unremarkable. Therefore, the examiner opined that it was less likely as not that the Veteran’s claimed fatigue was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. On examination by VA to evaluate the Veteran’s fibromyalgia in December 2016 the Veteran had complaints of fatigue. After examination by VA in November 2019, the examiner was requested to render an opinion regarding whether the Veteran’s claimed fatigue was a disability in and of itself or whether it was a manifestation of another underlying disability or disabilities such as fibromyalgia. In addition, the examiner was requested to opine regarding whether any disability manifested by fatigue, if other than due to another disorder, was at least as likely as not otherwise etiologically related to service, including environmental exposures while serving in Southwest Asia, vaccines, or lay reports of service onset. The examiner rendered an opinion that the claimed condition was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The rationale was that the symptoms were subjective only, and that there was no objective evidence of CFS diagnosed to date. The examiner explained that “Fatigue in and of itself [was] a symptom not a specific medical condition,” and that fatigue could be due to many medical conditions including insomnia, depression, or obstructive sleep apnea (OSA). The examiner noted that the Veteran had OSA. It was concluded that “A nexus to any of the above situations has not been established as no diagnosis of CFS exists.” Another pertinent VA medical opinion was obtained in in June 2020. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that fatigue was a symptom and not a diagnosis. An examination was conducted by VA in January 2021. After examination and review of the record, the examiner stated that there is no evidence of CFS diagnosed to date, including in the STRs which were silent for chronic fatigue while in service. The examiner noted that the Veteran was service-connected for major depressive disorder as well as fibromyalgia. It was opined that fatigue was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The rationale was that fatigue in and of itself was a symptom and not a specific medical condition; it could be due to many medical conditions including insomnia and depression. The examiner stated that the Veteran had claimed a disability related to CFS and reported tiredness and fatigue, but he had been diagnosed as chronic multi symptom illness with a partially explained etiology. The examiner noted also that the Veteran was service-connected for fibromyalgia, for which fatigue was a symptom of, and he also had multiple psychiatric conditions to include PTSD and depression. The examiner noted that insomnia was a significant contributor to fatigue, and that depression and other psychological conditions could produce fatigue. The examiner stated the Veteran’s STRs were silent for CFS in service and he did not meet the VA requirements for a current diagnosis of CFS. Therefore, the examiner concluded, “A nexus is not established as there is no chronic diagnoses of chronic fatigue syndrome.” The Board finds that a chronic disability manifested by fatigue, including CFS, was not shown as chronic in service, has not been manifested to a compensable degree subsequent to service, and has not been found to be attributed to service. While the Veteran is competent to report having experienced symptoms of fatigue since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a separate chronic disability manifested by fatigue, including CFS. The Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that Veteran does not have a current diagnosis related to a chronic disability manifested by fatigue and does not have a current diagnosis of CFS. The Board acknowledges that during the January 2015 VA examination, it was indicated that the Veteran had a diagnosis of CFS and fatigue. However, that diagnosis appears to have been made based on the history reported by the Veteran during the examination. Significantly, on physical examination, the January 2015 VA examiner indicated the Veteran did not have any findings, signs, or symptoms attributable to CFS. In the examiner’s remarks and medical opinion, the examiner also did not indicate that there was an actual diagnosis of CFS or fatigue, but instead noted that the Veteran had claimed a disability pattern related to CFS and reported having tiredness and fatigue. Moreover, the available treatment records and subsequent VA examination reports do not show that the Veteran has been given a diagnosis of CFS or a chronic disability manifested by fatigue. Therefore, the Board does not find that the Veteran has a current basis for the establishment of service connection for fatigue, including CFS. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a chronic disability manifested by fatigue, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.