Citation Nr: 21027705 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-23 790 DATE: May 6, 2021 ORDER Service connection for chronic fatigue syndrome, including as due to an undiagnosed illness, is denied. REMANDED The issue of entitlement to service connection for multiple joint pain, including as due to an undiagnosed illness, is remanded. VETERAN'S CONTENTIONS The Veteran contends that he has chronic fatigue as a result of exposure to environmental hazards during his Gulf War service. Alternatively, the Veteran contends that his chronic fatigue syndrome is related to an undiagnosed illness. FINDING OF FACT The Veteran experiences fatigue associated with his service-connected schizophrenia and service-connected obstructive sleep apnea. The diagnostic criteria for a separate and distinct fatigue disorder, including chronic fatigue syndrome, are not met. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1112, 1117, 1118, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to November 1981 and from December 1990 to May 1991. He also had service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in July 2018 and a transcript of the hearing has been associated with the claims file. In February 2021 the RO granted service connection for schizophrenia, service connection for obstructive sleep apnea, service connection for folliculitis, and entitlement to a total disability rating based on individual unemployability (TDIU). The Board finds that there is no present case or controversy for the Board to adjudicate with regard to the aforementioned claims and the Board will not further address these issues at the present time. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. In making the above determination, with regard to the claim for service connection for schizophrenia, the Board notes that an examiner determined that the anxiety, depression, excessive worry, and adjustment disorder documented in the Veteran's service treatment records (STRs) were the initial manifestations of the Veteran's diagnosed schizophrenia. The examiner also considered the Veteran's post-service psychiatric diagnoses and determined that the Veteran's chronic symptoms were best explained by a diagnosis of schizophrenia. As such, the grant of service connection for schizophrenia is deemed a full grant of the benefit sought on appeal. With regard to the claim for service connection for shortness of breath and service connection for chest pain, a VA examiner considered the inability to breathe due to anxiety/pulmonary embolism documented in the Veterans STRs, but determined that the Veteran's shortness of breath and chest pain were consistent with the effects of the Veteran's acquired psychiatric disorder. The examiner also determined that the Veteran did not have diagnoses of coronary artery disease or hypertension. As these symptoms have been determined to be associated with the now service-connected schizophrenia, those claims are also considered to be fully resolved. Lastly, with regard to service connection for folliculitis (claimed as chronic infections), a VA examiner noted the Veteran's prescription and his statements regarding his folliculitis infection getting into his eyes but indicated that there was no evidence to suggest folliculitis would cause an eye infection. As such, the grant of service connection for folliculitis is considered to be a full grant of the benefit sought on appeal. Entitlement to service connection for chronic fatigue, including as due to an undiagnosed illness To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Pursuant to 38 C.F.R. § 3.303(b) when a chronic condition is present, a claimant may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases also may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, on or after August 2, 1990. 38 U.S.C. § 1110. Service connection may also 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 prior to December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder); and (3) a 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). In claims based on undiagnosed illness, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 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. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2), (5). For VA purposes, a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a. The threshold question that must be addressed in this case is whether the Veteran has a current disability of chronic fatigue syndrome. After a review of the evidence of record, the Board finds that the preponderance of the evidence establishes that the Veteran has not been diagnosed during the course of the appeal with the medically unexplained chronic multisymptom illness of chronic fatigue syndrome. 38 C.F.R. §§ 3.303, 3.317(a)(2), 4.88a. The diagnostic criteria for a separate and distinct fatigue-related disorder also are not met. As such, service connection must be denied. In this regard, during the appeal period, the Veteran was afforded VA examinations for chronic fatigue syndrome, undiagnosed illness/medically unexplained chronic multi-symptom illness, mental health conditions, and obstructive sleep apnea. During a January 2021 VA Acquired Psychiatric Disorder examination, the examiner indicated that fatigue was a symptom at least as likely as not consistent with the effects of the Veteran's acquired psychiatric disorder. The examiner reasoned that the Veteran most likely experiences fatigue related to symptoms of chronic sleep difficulties and high anxiety associated with his acquired psychiatric disorder. During a February 2021 VA Chronic Fatigue Syndrome examination, the examiner determined that the Veteran did not have a current diagnosis of chronic fatigue syndrome. The examiner further indicated that the disability pattern of an undiagnosed illness; diagnosable but medically unexplained chronic multi-symptom illness of unknow etiology; or diagnosable chronic multi-symptom illness with a partially explained etiology did not apply. The examiner indicated that the Veteran's fatigue and sleepiness symptoms were due to obstructive sleep apnea. Consistent with the February 2021 VA examiner's opinion, during a February 2021 VA Sleep Apnea examination, an examiner indicated that persistent daytime hypersomnolence was a symptom of the Veteran's obstructive sleep apnea. Upon consideration of all the evidence, the Board finds that the Veteran does not currently have chronic fatigue syndrome, or a separate fatigue-related disorder that is distinct from the fatigue associated with his mental health condition and/or obstructive sleep apnea. The Board acknowledges the Veteran's competent and credible report of fatigue. However, as a lay person, he is not able to diagnose himself with chronic fatigue syndrome. Although the Veteran reported fatigue, the medical evidence of record demonstrates that his fatigue is associated with his service-connected mental health condition and/or obstructive sleep apnea, rather than a distinct fatigue-related disability. Notably, the Veteran is already being compensated for his fatigue as a sign or symptom associated with the aforementioned service-connected disabilities. See 38 C.F.R. § 4.71a, Diagnostic Code 9201 and 38 C.F.R. § 4.97, Diagnostic Code 6847. In the absence of evidence of a current disability for which service connection may be granted, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for chronic fatigue syndrome is denied. REASONS FOR REMAND Entitlement to service connection for multiple joint pain, including as due to an undiagnosed illness, is remanded. The Veteran contends that he has multiple joint pain related to an undiagnosed illness or a result of exposure to environmental hazards during his Gulf War service. Alternatively, the Veteran contends that he has low back pain as a result of trucking and hauling fuel during service. In this regard, the Veteran's service treatment records (STRs) document a report of recurrent back pain and low back syndrome in November 1988; arthralgia since returning from the Persian Gulf in December 1993; shoulder pain in April 1996; chronic hip pain and chronic elbow pain in February 1994; joint pain, including right elbow, right hip, and right knee, for several years in February 1994; and history of low back pain in July 1994. However, to date, the AOJ has not made a formal finding regarding the character of the Veteran's Army National Guard or Army Reserve service, to include the exact dates of his active duty, ACDUTRA, and inactive duty, INACDUTRA, periods of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6(a), (d). In order to adequately address the Veteran's claim, a remand is necessary to verify his Army Reserve service and/or Army National Guard service and to determine the exact dates of ACDUTRA and/or INACDUTRA periods of service; particularly, his period of service from 1988 to 1996 given the foregoing evidence, which documents that the Veteran complained of joint pain. The Board notes that the March 2019 Board remand specifically requested this information and a remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding treatment records. 2. Verify the Veteran's periods of service in the Army National Guard, to include a list of his dates of ACDUTRA and INACDUTRA service. The AOJ should document all efforts made to do so. If the dates cannot be verified, the claims file should be annotated to reflect such, and the Veteran and his representative notified of such. The Board is particularly interested in the Veteran's service from 1988 to 1996. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.