Citation Nr: 21030044 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-45 063 DATE: May 17, 2021 ORDER Entitlement to service connection for fatigue is denied. REMANDED Entitlement to service connection for osteoarthritis, to include joint pain, is remanded. FINDING OF FACT A chronic disability manifested as fatigue was not shown in service, and the Veteran's current symptomatology of fatigue is not shown to be related to service. CONCLUSION OF LAW The criteria for service connection for fatigue are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1976 to February 1980, and from October 1982 to March 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of a department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran's claims were before the Board in September 2019 and were remanded for additional development. As to the Veteran's claim for entitlement to service connection for fatigue the Board finds the prior remand directives have been substantially complied with and the claim is again before the Board. As discussed below, as to the Veteran's claim for entitlement to service connection for osteoarthritis to include joint pain the Board finds the prior remand directives have not been substantially complied with, and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for fatigue is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). 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. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that he has chronic fatigue related to service. The question for the Board is whether the Veteran has a current fatigue disability that began during service or is at least as likely as not caused by an in service injury or disease. The Veteran has a current diagnosis of fatigue related to sleep apnea. The Veteran's service treatment records (STRs) are silent regarding any diagnosis, or treatment for a chronic fatigue disability. Notably, the Veteran was seen in May 1979 and January 1984 with symptoms that included "malaise" and "tired." Each STR notes an assessment of viral syndrome. Treatment records note rest and fluids were recommended and the Veteran was to return for care in a week if the symptoms persisted. The August 1982 and March 1988 reports of medical examination noted a normal clinical evaluation. On August 1982 and March 1988 reports of medical history, the Veteran denied any symptomology relating to fatigue. Based on the Veteran's statements and treatment records the Board finds several in-service instances of fatigue, but that residual symptoms and limitations of function were not present at the time of discharge. An April 2016 treatment record notes daytime fatigue associated with obstructive sleep apnea. It was noted that the Veteran did not wear a CPAP machine, and did not want to wear a CPAP machine. The Veteran declined a referral to the sleep study clinic for additional evaluation and treatment. A July 2016 treatment record notes the Veteran reported experiencing fatigue. A March 2018 treatment record notes daytime fatigue associated with the Veteran's diagnosed obstructive sleep apnea. On a March 2020 chronic fatigue syndrome Disability Benefits Questionnaire (DBQ), it was noted that the Veteran did not have a diagnosis of chronic fatigue syndrome. It was noted that the Veteran had a history of fatigue due to sleep apnea. The examiner opined that it was less likely than not that the Veteran's fatigue had its onset in or was otherwise related to his active service. The examiner noted the Veteran's fatigue was related to his sleep apnea. The examiner noted an extensive review of the Veteran's VA treatment records and in-service treatment. The examiner acknowledged the May 1979 and January 1984 STRs which noted tiredness and malaise. The examiner also noted that the Veteran's fatigue was unrelated to osteoarthritis, and noted that fatigue was a common symptom of sleep apnea. The Veteran contends that his current symptom of fatigue is etiologically related to his service. The Veteran contends that his symptoms of fatigue are related to pain and his service. It is not in dispute that the Veteran currently reports experiencing fatigue. His STRs show that he was treated for symptoms of "tired" and "malaise." However, such symptoms were associated with viral syndromes, and did not demonstrate a chronic disability of fatigue. Further, at separation in March 1988 clinical evaluation of the Veteran was normal and he denied any ongoing symptomology relating to fatigue. The Board has considered the Veteran's representative's general contentions that service connection is warranted. Additionally, the representative contends the prior VA examination was inadequate. The Board notes that the representative is not a competent authority to determine what information may be found probative to a competent examiner. The Board has considered the Veteran's and his representative's contentions; however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. The Veteran's statements regarding his observable current symptoms and in-service events are credible. The Veteran is competent to report his ongoing symptoms of fatigue. However, whether or not the Veteran's current symptom of fatigue is related to his service is a medical question, beyond the scope of common knowledge or capable of resolution based on lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical textual evidence or a medical opinion in support of his claim. While the Veteran is competent to report symptoms that he has experienced, he does not cite to supporting medical evidence that his current symptom of fatigue is related to treatment in service for viral syndromes. While the Board has no reason to question the credibility of the Veteran's belief that his current symptom of fatigue is related to service, as a layperson he is not competent to determine a nexus between a current symptom and the symptom he experienced in service. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection is warranted for fatigue. The Board concludes that service connection for fatigue on a direct basis is not warranted as the Veteran's current fatigue was not caused by service. The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent (medical) evidence in the record regarding the etiology of the Veteran's fatigue consists of the March 2020 medical opinion and is against the Veteran's claim. The provider acknowledged the Veteran's STRs, and opined that it was less likely than not that the Veteran's current symptom of fatigue was related to his service. The provider expressed familiarity with the accurate factual record, and explained the rationale for the conclusions reached. The provider also identified another, non-service-related cause of the Veteran's symptom of fatigue. Namely, the provider noted that the Veteran's symptom of fatigue was related to his non-service-connected sleep apnea. The Board finds the opinion to be probative evidence in this matter. As such the Board finds that the Veteran's current fatigue is less likely than not related to active service. The Board notes that at separation in March 1988 on the report of medical examination clinical evaluation was normal and on the report of medical history the Veteran denied any symptomology related to fatigue. The Board has considered the Veteran's lay statements however, the Board gives more probative weight to the competent and credible medical evidence especially the March 2020 VA examination. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and the appeal in this matter must be denied. In conclusion, the Board finds that the weight of competent and credible evidence is against the Veteran's claim for service connection for fatigue. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND Entitlement to service connection for osteoarthritis, to include joint pain, is remanded. The Veteran contends that service connection is warranted for osteoarthritis, to include joint pain. The Board finds that further development of the matter is necessary for proper adjudication of this claim. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for additional development and to obtain a supplemental VA examination. As part of the prior remand the Veteran was afforded a VA examination in February 2020 and the examiner found that the Veteran's degenerative arthritis of the spine, bilateral hands and bilateral knees was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner failed to fully address the Veteran's lay statements of record and fully address direct and presumptive service connection. In June 2017 correspondence, the Veteran reported that his joint pain "started soon after I was discharged and has continually gotten worse through the years." See June 2017 VA Form 9. Notably, the Veteran's onset of symptoms and continuity has yet to be adequately considered by a medical professional. Accordingly, a new medical opinion which considers the Veteran's lay statements is necessary. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. As such the Board finds that a remand is warranted for a supplemental VA opinion. The matter is REMANDED for the following action: Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the etiology of the Veteran's osteoarthritis. Upon review of the record (to include the Veteran's statement related to the onset of his symptoms and continuity of such symptoms), the clinician should respond to the following: (a.) Identify the likely etiology for the Veteran's osteoarthritis. Is it at least as likely as not (a 50 percent probability or greater) that the disability was caused by service? The opinion and rationale must specifically address the Veteran's contentions that his osteoarthritis was due to climbing up and down ladders, and that he began to experience symptoms shortly after service. (b.) If it is determined that the Veteran's osteoarthritis is unrelated to service, identify the etiology considered more likely, and explain why that is so. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the February 2020 VA examination noting that the Veteran's degenerative arthritis of the spine, bilateral hands and bilateral knees was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Further, attention is invited to the Veteran's lay statements noting that his joint pain began soon after service and has continued since worsening over time. K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.