Citation Nr: 21026145 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-03 151 DATE: April 29, 2021 ORDER Service connection for chronic fatigue syndrome (CFS) is denied. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability related to a diagnosis of CFS, the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim, and his symptoms of fatigue have been attributed to known clinical diagnoses with at least partially understood etiology and pathophysiology. CONCLUSION OF LAW The criteria for service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to August 1991 and March 1993 to July 1995, to include service in Southwest Asia during the Persian Gulf War. He is the recipient of numerous awards and decorations, to include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2017 and January 2020, the Board remanded the claim on appeal, as well as a claim for service connection for multiple joint pain, to include a bilateral hand disorder. While on remand, a November 2020 rating decision granted service connection for fibromyalgia. As such represents a full grant of the benefits sought with respect to the issue of entitlement to service connection for multiple joint pain, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining claim now returns to the Board for further appellate review. Entitlement to service connection for CFS. The Veteran contends he has CFS that is directly related to his service. Specifically, during his October 2016 Board hearing, the Veteran testified that he experienced fatigue, a feeling of being drained all the time, and daytime tiredness since he returned from serving in Southwest Asia during the Persian Gulf War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the 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 not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Service connection may also be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. § Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In the instant case, the record reflects that the Veteran served in Southwest Asia from during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claim. In this regard, a chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a 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 Veteran’s service treatment records (STRs) reflect that, in his March 1995 Persian Gulf Illness Screen, he reported that he was feeling sick and tired all of the time for a duration of 3 years and had fatigue and sleep disturbance. An assessment of fatigue and insomnia were noted. In his May 1995 Report of Medical History, the Veteran reported frequent trouble sleeping, which the examiner noted was complicated with his depression. At an August 2010 VA examination, the examiner noted the Veteran’s reports of developing fatigue after returning from Southwest Asia in the early 1990s, but observed that he went to work with no loss of work due to fatigue and did not nap during the day. She concluded that the Veteran did not have CFS. In October 2017, the Veteran underwent another VA examination, at which time, he reported that he noticed he was more tired all the time and had midafternoon fatigue. However, he also reported he worked 40 to 50 hours per week and, even with his sluggishness, he can still push through and complete work physical tasks. The Veteran further stated changing his diet and losing 70 pounds had helped substantially, and doing cardiovascular work outs or walking made him feel better. It was also noted that he had been a daily smoker for 30 years. The examiner opined the Veteran did not meet the criteria for CFS, but instead found that his tiredness was due to a vigorous work schedule and normal life stressors. In a May 2019 addendum opinion, the same examiner essentially reiterated his October 2017 opinion. In a March 2020 opinion, the October 2017/May 2019 examiner found the Veteran’s symptoms of chronic fatigue represented a “medically unexplained chronic multi-symptom illness.” However, he provided no rationale for such opinion. In an August 2020 opinion, the examiner reiterated his previous March 2020 opinion, but additionally stated that no rationale was needed under the Gulf War criteria. However, as he did not identify the presence of objective indications of chronic disability or address whether such condition met the 6-month period of chronicity, which are required under 38 C.F.R. § 3.317, another addendum opinion was obtained in October 2020. At such time, the examiner stated the Veteran’s fatigue, while not completely meeting chronic fatigue guidelines for treatment, does exist as a form of tiredness via history, and has been present over six months, overlapping with his multiple joint pains. In this regard, he noted that the Veteran complained of fatigue and joint pain in March 1995 in a Gulf War Illness Screen and has continued to state he suffers from these same problems after service. Thus, the examiner found that, due to a lack of specific diagnosis of the Veteran’s joints, negative x-rays, history of fatigue-like symptoms and general arthralgias that do not seem to lapse over time, the overall picture is one of overlapping symptoms creating an unexplained condition. However, in November 2020, the Veteran underwent another VA examination with a different VA examiner. As a result of this examination the Veteran was diagnosed with fibromyalgia and, as mentioned supra, service connection was awarded for such disability. However, specific to the Veteran’s claim for CFS, the examiner opined that he does not meet the criteria for such a diagnosis. In this regard, she noted that he had somatic symptoms of fatigue that is common with sleep impairment related to periods of awakening with witnessed apnea events by his spouse, posttraumatic stress disorder (PTSD), chronic obstructive pulmonary disease (COPD), insomnia, and fibromyalgia, and daily stressors and family dynamics. The examiner observed that the Veteran had been placed on disability for COPD, which has been known to result in fatigue related to exertional shortness of breath. Further, she indicated that he has PTSD with nightmares, which awaken him during the night, which disrupts his sleep, and was diagnosed with insomnia as early as 1995. The examiner also noted that the Veteran had daily stressors such as work and family dynamics, and fatigue is considered a somatic symptom of fibromyalgia. Furthermore, she found that his fatigue was not overwhelming as he has been able to function in occupations of carpentry and pipeline with moderate to strenuous activities for many years prior to being awarded disability based on COPD in February 2019. Finally, the examiner observed that the Veteran had not been diagnosed with CFS by any of his treatment providers. Upon review, the Board affords the November 2020 VA examiner’s opinion highly probative as to whether the Veteran has a current disability of CFS or symptoms of fatigue that constitute a chronic disability due to an undiagnosed illness or medically unexplained chronic multi-symptom illness. In this regard, such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Specifically, she provided detailed analyses in support of her opinion, addressed the criteria necessary for a diagnosis of CFS, and attributed the Veteran’s symptoms to known clinical diagnoses with at least partially understood etiology and pathophysiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Furthermore, the November 2020 VA examiner’s opinion is consistent with the remainder of the evidence of record, to include the Veteran’s STRs that suggest his complaints of fatigue were related to a psychiatric disability (which was later service-connected as PTSD), the lack of a diagnosis of CFS by any other examiner or treatment provider, and the attribution of his complaints of fatigue to other diagnosed disorders, his work schedule, and/or life stressors. Furthermore, the Board finds that such determination is likewise consistent with the October 2020 VA examiner’s opinion in that he also found that the Veteran’s joint pain and fatigue resulted in an unexplained condition, which was service-connected as fibromyalgia and, per Diagnostic Code 5025, fully contemplates associated fatigue. Furthermore, while the Veteran is competent to report fatigue, he is not competent to diagnose CFS, or associate or disassociate such disorder from another medical condition as he, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of CFS, and the etiology of his reported fatigue involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran’s opinion as to the etiology of reported fatigue is not competent evidence and, consequently, is afforded no probative weight. Consequently, the Board finds the evidence does not establish a clinical diagnosis of CFS during the pendency of the appeal or prior to the Veteran’s filing of a claim. Furthermore, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a chronic disability due to an undiagnosed illness or medically unexplained chronic multi-symptom illness as his symptoms of fatigue have been attributed to known clinical diagnoses with at least partially understood etiology and pathophysiology. Thus, service connection for CFS is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for CFS. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.