Citation Nr: 21029561 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-00 531 DATE: May 13, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for bilateral restless leg syndrome (RLS), to include as secondary to PTSD, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea was not incurred in or due to his time in service, nor proximately due to or aggravated by his service-connected PTSD. 2. The Veteran does not have CFS. 3. The Veteran's RLS was not incurred in or due to his time in service, nor proximately due to or aggravated by his service-connected PTSD. 4. The evidence does not demonstrate that the Veteran was unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. § 3.303, 3.310, 3.317. 3. The criteria for entitlement to service connection for RLS, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to June 1994, including service in Iraq. The Veteran received the Bronze Star during service. The Veteran appeals a December 2014 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Des Moines, Iowa. These issues were previously before the Board of Veterans' Appeals (Board) in May 2019, and were remanded for further development, which has been completed. The Veteran had a Board hearing before the undersigned in November 2018. A transcript is included in the claims folder. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must 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. 38 C.F.R. § 3.310 (a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested 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. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317 (a)(2)(i). The term MUCMI refers to 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. 38 C.F.R. § 3.317 (a)(2)(ii). Examples of MUCMIs include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317 (a)(2)(B). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for sleep apnea, to include as secondary to PTSD The Veteran is seeking a separate, compensable rating for sleep apnea, as secondary to PTSD. See November 2018 Hearing Transcript. The Veteran first underwent a VA examination for a sleep disorder in October 2015. The examiner noted that the Veteran did not currently have any findings, signs, or symptoms attributable to sleep apnea, providing evidence against this claim. In August 2020, the Veteran underwent another VA examination for his sleep disorder. The examiner noted the Veteran was not diagnosed with sleep apnea until May 2018, as his polysomnograms were normal until then. Moreover, the examiner opined that it is less likely than not that obstructive sleep apnea was proximately due to or aggravated by PTSD. In reaching their rationale, the examiner noted medical literature is silent for a causal relationship that PTSD causes sleep apnea to develop. Furthermore, the examiner also considered the medical treatise submitted by the Veteran's representative. The examiner highlighted that the study provided suggests using a specific screening tool to evaluate for possible sleep apnea in veterans with PTSD and therefore does not support a causal relationship with PTSD and sleep apnea. Additionally, and in support of his contention, the Veteran's representative submitted citations to prior Board decisions in which service connection had been established for sleep apnea as secondary to PTSD. The Board notes that while prior Board decisions that granted other veterans service connection for sleep apnea as secondary to PTSD, each Board decision is based on a review of the evidence in that individual veteran's appeal and not controlled by the Board's findings in other cases. Therefore, after reviewing the available evidence of record, the preponderance of the evidence is against the claim for entitlement to service connection for sleep apnea, to include as due to PTSD. 2. Entitlement to service connection for chronic fatigue syndrome The Veteran's service personnel records show he received a Southwest Asia Service Medal and served in Iraq. He is, therefore, considered a Persian Gulf veteran. 38 C.F.R. § 3.317 (e). Accordingly, the remaining question before the Board is whether the Veteran displayed objective indications of CFS and, if so, whether it manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more. For VA purposes, a diagnosis of CFS 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; (viii) migratory joint pains; (ix) neuropsychologic symptoms; (x) sleep disturbance. Based on a comprehensive review of the record, the Board finds that the preponderance of the evidence is against the claim. The evidence against the claim includes the Veteran's service treatment records, which do not document objective indications of CFS, and March 2013 and August 2020 VA examination reports. Both examiners determined the Veteran did not have CFS. Furthermore, both examiners noted the Veteran does not have debilitating fatigue that reduces daily activity level to less than 50 percent of pre-illness level. However, the March 2013 examiner found the Veteran has had some symptoms attributable to CFS such as migratory joint pains and sleep disturbance. Moreover, the March 2013 examiner found it is less likely than not that the claimed CFS is proximately due to or caused by illness or injury while on active duty. As for the August 2020 VA examiner, no additional symptoms were noted that would be considered attributable to CFS. The examiner noted that fibromyalgia is outside the scope of this examination. However, the Veteran is already service connected for fibromyalgia as due to an environmental hazard in Gular War and an undiagnosed illness. The evidence in favor of the claim includes numerous VA treatment records noting treatment for chronic fatigue and the occasional treatment for CFS. See August 2013 Primary Care Outpatient Note; August 2013 Mental Health Outpatient Note; November 2014 Psychology Note; August 2016 Primary Care Outpatient Note; January 2019 Primary Care Outpatient Note. However, these VA treatment records appear to be based on the Veteran's subjective reports of chronic fatigue and CFS. No diagnosis, for VA purposes, can be shown based on a review of the treatment records. Therefore, the Board places a greater probative weight on the March 2013 and August 2020 VA examination reports that the Veteran does not have CFS. 3. Entitlement to service connection for restless leg syndrome, to include as secondary to PTSD The Veteran contends his RLS is due to active service, to include as secondary to his service-connected PTSD. The Veteran has undergone many VA examinations for his RLS. A December 2014 VA examiner addressed whether the Veteran's RLS is due to the prescription of pyridostigmine bromine while on active duty. The examiner opined that the Veteran's RLS is less likely than not incurred in or caused by an in-service injury, event, or illness. In reaching their rationale, the examiner noted that pyridostigmine bromide is an acetylcholinesterase inhibitor and is used to treat muscle weakness in people with myasthenia gravis and to combat the effects of curariform drug toxicity. Furthermore, pyridostigmine bromide has been FDA approved for military use during combat situations as an agent to be given prior to exposure to the nerve agent Soman in order to increase survival. While muscle spasm is a known side effect, it is dose limited and resolves once the medication has been discontinued. In October 2015, the same VA examiner opined that the Veteran's RLS is less likely as not caused by or a result of PTSD. The most consistently implicated central nervous system alteration in patient with restless leg is reduced central iron stores, dopaminergic systems, circadian physiology, thalamic function, and other neurotransmitters. Furthermore, the examiner noted there is limited data to suggest any mental health condition is associated with RLS. In August 2020, another opinion was obtained for the Veteran's RLS. The August 2020 examiner opined that it is less likely than not that RLS is proximately due to or the result of PTSD. Furthermore, it is less likely than not that RLS is aggravated beyond its natural progression by PTSD, including medications such as selective serotonin reuptake inhibitors (SSRIs). In reaching their rationale, the examiner noted that the medical literature is silent for a causal relationship that PTSD would permanently alter the pathophysiology of RLS or cause RLS to develop. A February 2016 private medical opinion was submitted in support of the Veteran's claim. The physician opined that the Veteran's RLS and periodic limb movement disorder is caused by SSRIs used to treat PTSD. However, the physician then stated that prior use of SSRIs likely exacerbated symptoms. Therefore, while supportive of the claim, the Board assigns this private medical opinion little probative weight because it is contradictory, vague, and does not provide the degree of certainty required for persuasive nexus evidence in this case. The record also shows that the Veteran and/or his representative filed with VA several articles or treatises. One treatise addressed RLS and noted that it is prevalent in military Veterans with PTSD and sleep disturbances. See January 2018 Journal of Trauma and Treatment. Another article covered the diagnosis and management of sleep disorders in PTSD. See December 2017 Primary Care Companion for CNS Disorders. Specifically, the December 2017 article noted that SSRIs can cause or exacerbate periodic leg movement disorders. In this appeal, however, the Board finds that the articles and treatises submitted by the Veteran and his representative only contain generic information. This evidence is therefore only entitled to limited probative value, as it is not supported by any definitive or concrete medical opinions. Therefore, after reviewing the available evidence of record, the preponderance of the evidence is against the claim for entitlement to service connection for RLS, to include as due to PTSD. 4. Entitlement to a TDIU The Veteran asserts, that his service-connected disabilities prevented substantial employment. Specifically, the Veteran seeks entitlement to a TDIU from August 2012 to April 2015 and from September 2016 to March 2019. In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Furthermore, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16 (b). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. In this appeal, the Veteran is service connected for the following disabilities: PTSD, rated as 50 percent disabling; Irritable bowel syndrome, rated as 30 percent disabling; Tinnitus, rated as 10 percent disabling; Fibromyalgia, rated as 10 percent disabling; Bilateral hearing loss, rated as noncompensable; Hypertension, rated as noncompensable; and Erectile dysfunction associated with PTSD, rated as noncompensable. Overall, the Veteran's combined evaluation for compensation is 70 percent from April 27, 2012, and therefore he meets the schedular criteria under 38 C.F.R. § 4.16 (a). The Veteran has been working for 3M as an industrial customer specialist since March 2019 and is allowed frequent breaks to cope with his sleep disorders and fibromyalgia. See October 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran previously worked as a sales manager with KCI USA Inc. from February 2009 to July 2012 and with UnitedHealth Group from April 2015 to March 2018 as a Manager of Network Contracting. See February 2013 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; September 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. UnitedHealth was unable to disclose the reason for the Veteran's termination of employment while KCI stated a reduction in force was the reason for him leaving. See January 2013 and September 2020 VA Forms 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. KCI noted that the Veteran reached out to their accomodation department with his PTSD and other illnesses. See October 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. As for UnitedHealth, the Veteran took a leave of absence under the Family and Medical Leave Act (FMLA) starting in September 2016 and later began Long Term Disability until March 2018, when the Veteran was terminated. See February 2018 UnitedHealth Group Letter. UnitedHealth Group stated that the Veteran's Long Term Disability was applied under the Mental Disorders Limitation because the Veteran's PTSD is considered a mental disorder. See April 2017 Benefits Administrators Letter. However, the information in the Veteran's file only noted that he was disabled by one or more conditions, including PTSD. Id. The limited evidence available regarding the Veteran's reason for termination and leaving his employment with UnitedHealth remains speculative. (Continued on the next page) Overall, the Board finds that the Veteran's ability to work was impacted by his service-connected disabilities, but not to the extent that he was unable to obtain or maintain substantially gainful employment. The Board understands that the Veteran is significantly impacted by his service-connected disabilities, as this is reflected by the fact that he is currently in receipt of a 70 percent combined disability rating (a significant disability rating). If he was not impacted, there would be no basis for a compensable rating, let alone TDIU. The Veteran's disabilities will cause the Veteran problems, such as the ones cited above, but these problems do not suggest that the Veteran can not work in any occupation. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a TDIU is denied. See 38 U.S.C. § 5107. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.