Citation Nr: 21029107
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 14-28 423A
DATE: May 12, 2021

ORDER

Entitlement to service connection for a back disability is denied.

Entitlement to service connection for chronic disability manifested by fatigue to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness such as Chronic Fatigue Syndrome (CFS) as a result of Persian Gulf War service, is denied.

FINDINGS OF FACT

1. The Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War.

2. The Veteran's back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, the disability is not otherwise etiologically related to an in-service injury or disease, and it is not secondary to a service-connected disability.

3. The preponderance of the probative evidence shows that the Veteran's symptom of fatigue has been related to other service-connected and non-service-connected disabilities.

4. The Veteran does not have a chronic disability manifested by fatigue attributable to an undiagnosed illness related to his Persian Gulf War service, does not have a diagnosis of CFS, and the preponderance of the evidence is against finding that this symptom began during a period of active service, or is otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. The criteria for service connection for Chronic Fatigue Syndrome or an undiagnosed illness manifested by fatigue are not met. 38 U.S.C. §§ 1110, 1112, 1117, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1987 to September 1991, including service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in December 2013.

The Veteran testified before the undersigned Veterans Law Judge at an August 2018 hearing; a transcript of the hearing is of record.

This case was previously remanded to the AOJ in March 2019, for additional development, and was subsequently returned to the Board.

In a June 2020 rating decision, the AOJ granted service connection for irritable bowel syndrome (IBS), and this issue is no longer in appellate status.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b).

1. Service connection for a back disability

The Veteran contends that his current back disability is secondary to service-connected bilateral ankle disabilities. See his July 2013 claim. Alternatively, he contends that his back disability is due to carrying gear weighing about 100 pounds while walking during Desert Storm, and due to yearly 60-mile hikes in service while carrying all of his gear. See August 2018 Board hearing transcript, March 2021 representative's written brief. The Veteran testified that he did not seek treatment for his back pain in service because he thought they would only give him pain medication, and he just learned to live with the pain. He testified that he had constant pain in his shoulders, arms, hips, low back and thighs for the last three to four years, and intermittent pain for some time before that, but he could not recall when he first noticed it.

In March 2021, his representative noted that the Veteran's military occupational specialty (MOS) was rifleman, and stated that riflemen and infantrymen are known to suffer shoulder, back, knee, and foot disabilities due to the nature of their duties, but are notorious for not complaining or going to sick call for treatment during service. The representative asserted that while the Veteran's fibromyalgia may not have caused his back condition, it very likely masked the symptoms of a back condition due to the severity of pain associated with fibromyalgia. 

The Veteran's DD Form 214 shows that he served in the U.S. Marine Corps from September 1987 to September 1991, his primary military occupational specialty (MOS) was rifleman, and he was awarded the Combat Action Ribbon and Southwest Asia Service Medal. 

The Veteran has a current diagnosis of arthritis and degenerative disc disease of the thoracic spine as evidenced by the December 2013 VA examination. A July 2018 VA X-ray study showed spondylosis and mild disc space narrowing L4-5. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. 

However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with arthritis of the spine until December 2013, decades after his separation from service and decades outside of the applicable presumptive period. A December 2013 private magnetic resonance imaging (MRI) of the lumbar spine showed minimal relative spinal canal narrowing at L4-5, due primarily to facet hypertrophy. A March 2014 private medical record from Dr. G. reflects that the Veteran reported right hip pain since October 2013. Dr. G. opined that the recent lumbar MRI was basically within normal limits.

While the Veteran is competent to report experiencing symptoms of back pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing recurrent back pain in reports of medical history in July 1990, and at separation medical examination in August 1991. He denied any current pain during VA outpatient treatment in April 2013 and October 2013, and did not complain of back pain until December 2013, when he reported having low back pain for several weeks, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  

Further, while the Veteran asserts that the reported symptoms were manifestations of arthritis and degenerative disc disease of the spine, he is not competent to determine that these symptoms were manifestations of arthritis or degenerative disc disease as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

Service connection for a back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's back disability and an in-service injury, event or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303.  

The January 2020 VA examiner opined that the Veteran's back disability is not at least as likely as not related to an in-service injury, event, or disease, including long marches in service while wearing heavy gear. The rationale was that a review of the service treatment records shows no reports of back pain or treatment thereof, and at the time of his separation examination in August 1991, he answered "No" to the question regarding "Recurrent back pain." A review of his VA medical records showed no reports of back pain until March 2014, when he was seen by Physical Therapy and the following was documented: he reported that in October he noticed a gradual onset of right hip pain, and was over 300 pounds and thought it was due to obesity. He had gastric sleeve surgery for weight reduction in January, and had lost 50 pounds, but the pain remained. He also had a history of left lumbar pain which started at the same time and he felt it correlated with his hip pain. He was seeing an outside doctor for treatment of hip and back pain and the provider noted that the MRI showed "mild stenosis at L4-L5" and stated that "I would consider these basically within normal limits." He currently has a diagnosis of disc herniation, facet hypertrophy and central spinal stenosis at L4-5 on MRI in November 2019. The examiner stated that it is unknown what caused the herniation, but it is less likely related to military service due to the time frame that has passed since military service and the herniation. The examiner stated that there is no indication that his current back condition was due to "long road marches in service while carrying heavy gear" because, as noted above, there were no complaints of back pain in service. The first reports of back pain were in late 2013, over 21 years after military discharge, and the Veteran himself reported to his provider that he felt his back pain was related to his hip condition.

The December 2013 and January 2020 VA examiners collectively opined that the back disability is not at least as likely as not proximately due to or aggravated beyond its natural progression by the service-connected bilateral ankle disabilities and fibromyalgia. The combined rationale was that the medical literature does not support a causative correlation between an ankle condition leading to the development of a back condition - degenerative disc disease of the thoracic spine - in the absence of a significantly altered gait, and the Veteran's gait was normal. The January 2020 VA examiner reiterated that the Veteran did not report any back pain until 2013 and felt it was related to his hip condition. Ankle sprains would also not cause disc herniations. The examiner stated that fibromyalgia is not a known cause of lumbar degenerative disc disease or disc herniation, and a nexus cannot be established.

While the Veteran and his representative believe his back disability is related to an in-service injury, event, or disease, including carrying heavy gear in service, or is secondary to service-connected bilateral ankle disabilities, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and 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.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a back disability and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

2. Service connection for Chronic Fatigue Syndrome 

The Veteran contends that he has CFS due to service in SWA, which is manifested by unrefreshing sleep, sore throat, tender lymph nodes, muscle and joint pain, difficulty with memory and concentration, and headaches. See August 2014 substantive appeal, August 2018 Board hearing transcript. At the hearing, he testified that he had sleep impairment and slept only a few hours each night, and sometimes could not sleep at all. He was tired during the day, and sometimes fell asleep in the daytime. He reported that he had been diagnosed with sleep apnea and used a CPAP machine. He also reported vivid dreams and nightmares. He said he never got a good night's sleep.

The representative asserts that the Veteran's fibromyalgia symptoms may have masked the symptoms of CFS. See March 2021 written brief.

Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). For purposes of 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): (a) an undiagnosed illness; or (b) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Such chronic disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1). See also Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (holding that under 38 C.F.R. § 3.317, "an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive"). Conversely, a multi-symptom illness with, at the minimum, both a partially understood etiology and pathophysiology is not a MUCMI. 38 C.F.R. § 3.317 (a)(2)(ii); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018).

Objective indications of a qualifying chronic disability include both signs and symptoms, 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 and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b).  Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995).

Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the SWA theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (c).

Here, the Veteran had active service in SWA from 1990 to 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317 (e). The evidence does not, however, show objective indications of a qualifying chronic disability manifested by fatigue resulting from an undiagnosed illness or a MUCMI (other than the already service-connected fibromyalgia).

The evidence of record, including VA and private medical records and the Veteran's hearing testimony, shows that he has several other current disabilities which impair his sleep and result in fatigue, to include sleep apnea, service-connected fibromyalgia (another MUCMI), service-connected posttraumatic stress disorder (PTSD), insomnia, and frequent nightmares.

The Veteran has provided testimony and reported to several medical providers that his sleep is impaired by pain from orthopedic disabilities, sleep apnea, and frequent nightmares. See, e.g., VA outpatient treatment records dated in October and December 2013 showing that he reported having nightmares for 10 to 15 years, some nights hardly slept at all, and woke up a lot at night due to pain. At the December 2013 VA CFS examination, he reported that he had not been diagnosed with chronic fatigue syndrome. He reported that he had sleep apnea and was on a CPAP, and said the machine had significantly improved his quality of life. He also reported problems with nightmares and possible PTSD, and had been prescribed Trazadone 100 mg to take nightly by the mental health provider.

Governing regulation provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

The current disability rating for service-connected PTSD has been assigned in part based on chronic sleep impairment. See December 2013 rating decision. 

Service-connected fibromyalgia has been rated 40 percent disabling, a rating  assigned for widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel syndrome, depression, anxiety or Raynaud's-like symptoms that are constant, or nearly so, and refractory to therapy. 38 C.F.R. § 4.71a, Diagnostic Code 5025.

The Board previously remanded this case for a VA medical opinion to determine if the Veteran has a chronic disability manifested by fatigue to include as due to an undiagnosed illness or a medically unexplained MUCMI such as CFS. 

The medical evidence of record includes medical evidence weighing in favor of and against the claim. Although a private medical provider, H.J., FNP, diagnosed CFS in an October 2014 treatment note, he did not diagnose this condition in a November 2014 CFS Disability Benefits Questionnaire. Instead, he diagnosed fatigue. In a July 2014 treatment note, H.J. stated that the Veteran had no notable fatigue, but reported having severe fatigue prior to treatment for his sleep apnea. 

The December 2013 VA PTSD examiner indicated that chronic sleep impairment is one of the symptoms of his PTSD. VA outpatient treatment records dated since 2011 are negative for a diagnosis of CFS, and the December 2013 and January 2020 VA examiners opined that the Veteran does not have CFS, or any findings, signs, or symptoms attributable to CFS. 

At the January 2020 VA examination, the Veteran reported that his intermittent fatigue was worse after a bad episode of insomnia which started in his 20s. He reported muscle aches, but the examiner noted that he also had fibromyalgia, insomnia and sleep apnea. The examiner stated that the Veteran had other clinical conditions that may produce similar symptoms and had not been excluded by history, physical examination or laboratory tests, and indicated that the Veteran had low testosterone and a notation of positive rheumatoid factor in 2014.

The January 2020 VA examiner opined that the Veteran did not meet the VA criteria for a diagnosis of CFS, because he did not have an acute onset, no change in his headaches, no non-exudative pharyngitis, no low grade fevers, no worsening fatigue 24 hours after exercise, he did have migratory joint pain but also had a diagnosis of fibromyalgia which can cause these symptoms, he did have sleep disturbances but had also been diagnosed with sleep apnea. He also had a documented history of low testosterone which can also cause fatigue. There is also no documentation from a rheumatologist for an evaluation of CFS. The examiner concluded that a diagnosis of chronic fatigue syndrome was not shown, and a nexus had not been established.

As the Veteran does not have objective indications of a qualifying chronic disability manifested by fatigue that have not already been attributed to other service-connected and non-service-connected conditions, the Board finds that service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted.

The remaining question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The January 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of fatigue, muscle aches, and migratory joint pain, he did not have a diagnosis of CFS, and opined that these symptoms were related to other conditions. While private practitioner H.J., FNP, diagnosed CFS in an October 2014 treatment note, he did not diagnose CFS in a subsequent November 2014 CFS DBQ, and related the Veteran's fatigue to other conditions in his treatment notes. The Board finds that the preponderance of the evidence weighs against finding that the Veteran has a current diagnosis of CFS.

While the Veteran believes he has a current diagnosis of CFS, 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, and 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.

 

For the foregoing reasons, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. L. Wasser, 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.