Citation Nr: 21030150 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-27 986 DATE: May 18, 2021 ORDER Entitlement to service connection for a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with depressive disorder, is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran has a diagnosed condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms that is etiologically related to a disease, injury, or event in service, or to service-connected PTSD with depressive disorder. CONCLUSION OF LAW The criteria for service connection for a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms, to include as secondary to service-connected PTSD with depressive disorder have not been met. 38 U.S.C. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1968 to November 1970. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In September 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is seeking entitlement to service connection for a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms, to include as secondary to service-connected PTSD with depressive disorder. Specifically, the Veteran asserted that he was infected with scrub typhus during his service in the Republic of Vietnam and that he has since continued to suffer from debilitating residuals including fatigue, weakness, generalized myalgias, arthralgias, and urinary conditions. In a March 2019 determination, the Board denied service connection for residuals of scrub typhus. However, the Board determined at that time that consideration should be given as to whether the Veteran has a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms that is related to service or to his service-connected PTSD with depressive disorder. During his active service in Vietnam, the Veteran was hospitalized from January 2 to January 8, 1970, with symptoms of chills, dizziness, fever, pain, fatigue, loss of appetite for four days, and frontal headache. Multiple blood tests were negative for malaria, and he received a diagnosis of fever of unknown origin, with "Scrub typhus suspected but not proven." He was treated with an antibiotic (tetracycline) and appeared to have responded well without any reappearance of the fever. His November 1970 service discharge Report of Medical Examination noted he reported "my physical condition is good" and that all systems were normal upon clinical evaluation. His weight was recorded at 165 lbs. VA treatment records show the Veteran has consistently complained of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms, without fever, which have been found to have no known infectious etiology, but for which the Veteran contends are alleviated by antibiotics, namely doxycycline. See, generally, March 2014 and March 2015 VA infectious disease outpatient notes. A July 2013 VA medical opinion found that the patient's symptoms are not clinically consistent with sequelae of or ongoing symptoms related to his diagnosis of presumed scrub typhus in January 1970. The examiner noted that scrub typhus is an acute febrile disease caused by rickettsial bacteria called Orientia tsutsugamushi, and that the illness is responsive to treatment with tetracycline. She further noted that medical literature shows that although some patients experience "early relapse" where they get fevers a few days after completing antibiotics before finally improving, or "prolonged convalescence" with some weakness and vague symptoms that can go on for perhaps as long as a few months after treatment, it does not support chronic sequelae lasting decades, any prolonged course of convalescence occurring over decades, or late relapses of infection. The examiner further noted the literature showed reports of some short-term neurologic sequelae, but that such symptoms are not what the Veteran had reported. A September 2018 independent medical expert opinion procured by VA on the Veteran's behalf also found the Veteran's reported symptoms are very unlikely to be caused by a remote infection with scrub typhus. The medical expert explained that illness with the pathogen that causes scrub typhus, Orientia tsutsugamushi, is not known to cause urinary disease, and is not known to live latently in the body or cause spontaneous recurrences. Moreover, the Veteran's infection responded positively to treatment with tetracycline without relapse of fever. Here, the Veteran was reported to have improved after being treated with tetracycline, and his service treatment records show neither "early relapse" nor "prolonged convalescence" as described by the July 2013 VA examiner. To the contrary, he reported in his November 1970 Report of Medical Examination that his physical condition was "good" and was found to be normal in all respects upon clinical examination. In addition, although the Veteran claims he lost approximately 50 lbs. while hospitalized in January 1970 and has never been able to regain that weight, service treatment records show he entered active service at 130 lbs., weighed 150 lbs. at the time he was hospitalized, and 165 lbs. at the time of this service discharge examination. See DD Form 640 entry dated January 2, 1970 (recording weight as 150 lbs.); November 2016 hearing transcript (asserting he weighed 170 lbs. when disease started and 117 lbs. upon discharge from hospital); see also April 1968 service entrance Report of Medical Examination (recording weight as 130 lbs.). This evidence supports the finding that the Veteran's suspected scrub typhus infection was an acute illness that fully resolved by the time he left active service. Although the most probative evidence of record showed that, during the period on appeal, the Veteran has not had any disability that is etiologically related to his in-service suspected scrub typhus infection, the September 2018 independent medical expert opinion also indicated that the Veteran's fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms "are much more likely to be related to underlying musculoskeletal injuries and arthritis coupled with his history of depression and profound trauma sustained during the war." In this regard, the Board notes that the Veteran is service connected for PTSD with depressive disorder, and his service treatment records indicate a February 1969 combat-related injury to his right thumb. As such, the Board requested additional medical opinions on this matter in the March 2019 remand. In a January 2020 Urinary Tract Conditions Disability Benefits Questionnaire (DBQ) opinion, the examiner determined that the Veteran's condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms is less likely than not proximately due to or the result of PTSD with major depressive disorder and moderate alcohol use disorder. With regard to the urinary symptoms described by the Veteran, there is no evidence based on objective testing of any urinary condition. His current examination is normal. His recent urinalysis was negative, as have been all urine analyses and cultures. His recent renal function testing was normal, as has been all prior cultures. His description of his urinary pattern is also normal. On review of the expert medical literature, the examiner found no evidence that would support with 50 percent or greater probability any connection between the Veteran's symptoms of fatigue, weakness, generalized myalgias, and arthralgias; and current urinary status or prior urinary status, based on review of the claims file and computerized patient record system (CPRS) records. In a January 2020 Chronic Fatigue Syndrome (CFS) DBQ opinion, the examiner opined that it is less likely that the Veteran's condition is due to CFS. The onset of the symptoms was gradual, and the Veteran has only 4 of the 6 symptoms required in the VA chronic fatigue template. The Veteran's description of symptoms occurring several times a year, responsive to antibiotics is not consistent with chronic fatigue, which is a constant condition that does not respond to antibiotics. The Veteran does have some neuropsychological symptoms explained by his PTSD, but the examiner is unaware of any expert literature that indicates that CFS is caused by PTSD with major depressive disorder and moderate alcohol use disorder. The examiner concluded that the Veteran's currently-diagnosed disability manifested by flares of fatigue, weakness, generalized myalgia, arthralgias, and urinary conditions are less likely than not to have begun in or otherwise etiologically related to the Veteran's active military service, including any musculoskeletal injuries incurred during combat. The Veteran describes flares of fatigue, weakness, generalized myalgia, arthralgias, and urinary conditions which are less likely than not caused by his service-connected PTSD with depressive disorder or permanently worsened by his service-connected PTSD with depressive disorder. The Veteran does not meet the criteria for a diagnosis of CFS. The psychological symptoms are associated with his service-connected PTSD, but the examiner finds no evidence of a separate diagnosable condition that meets any medical criteria for CFS related to PTSD with 50 percent or greater probability. He also finds no permanent worsening of any diagnosable condition. The Veteran described episodes occurring several times a year that have not changed over time; although, he finds his "energy levels" do not bounce back as easily as when he was younger. The examiner finds no evidence of any permanent worsening. The examiner concluded that it is less likely than not that the claimed disability began in or is otherwise etiologically related to the Veteran's active military service, including any musculoskeletal injuries. The examiner concluded that he did not find such a disability different from his PTSD condition. The Veteran is not service connected for any musculoskeletal injuries, and musculoskeletal injuries do not cause CFS, which, as noted above, is a condition of unknown etiology. In a January 2020 Fibromyalgia DBQ opinion, the examiner determined that the Veteran's condition is less likely than not due to fibromyalgia. The Veteran's description of symptoms occurring several times a year, response to antibiotic is not consistent with fibromyalgia, which is a constant condition that does not respond to antibiotics. Furthermore, the Veteran's examination reveals positive findings in 2 places. The other 5 sites in the fibromyalgia protocol are negative for tenderness. The examiner went on to note that he is unaware of any expert literature that indicates that fibromyalgia is caused by PTSD with major depressive disorder and moderate alcohol use disorder. The examiner went on to opine that the Veteran has flares of fatigue, weakness, generalized myalgia, arthralgias, and urinary symptoms that are less likely than not caused by his service-connected PTSD with depressive disorder or permanently worsened by his service-connected PTSD with depressive disorder. The "flares" of his symptoms are no more likely due to his service-connected PTSD or permanently worsened by his service-connected PTSD than the original claimed diagnosis of fibromyalgia is due to or permanently worsened by his service-connected PTSD. The examiner also concluded that it is less likely than not that the Veteran's claimed disability began in or is otherwise etiologically related to the Veteran's active military service, including any musculoskeletal injuries incurred during combat. The examiner noted antibiotic treatment for a diagnosis of scrub typhus and a diagnosis of a thumb injury and other transient conditions. The Veteran's November 10, 1970, separation SF 88 was reported as normal, and the Veteran reported that his physical condition was good. The examiner finds no evidence in the claims file that would suggest, with 50 percent or greater probability that the Veteran's current claimed disability manifested by the widespread symptoms noted in the VA 21-2507, Compensation and Pension Examination Request, began in or is otherwise etiologically related to the Veteran's active military service, including any musculoskeletal injuries incurred during combat. With regard to granting service connection on a direct or a secondary basis, the Veteran notably has not been assigned a current diagnosis related to his reports of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms. While the Veteran has taken antibiotics, to include doxycycline periodically, the record does not reveal that he has been diagnosed with a chronic disability related to his reports of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms. Historically, symptoms such as pain, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I). The Board notes, however, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment of earning capacity. Here, the Veteran has not established that his reports of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms result in a functional impairment which limited his earning capacity. The January 2020 Urinary Tract Conditions DBQ specifically noted that the Veteran did not now, nor has he ever been diagnosed with a condition of the bladder or urethra of the urinary tract. The Veteran reported that he had previously been prescribed antibiotics by a urologist several times per year but said that he does not want to take antibiotics anymore. He reported that, when he is prescribed antibiotics, his weak flow, dribbling, joint pains, muscle aches, fatigue, malaise, and lack of concentration all go away. These episodes "can be quarterly, biannually or annually" but most often 2 or 3 times per year. He expressed concern that he loses his fitness every time he has an episode. Notably, this DBQ gave no indication that he has a diagnosed disability or symptoms related to an undiagnosed disability that result in functional impairment of earning capacity. Likewise, the January 2020 DBQs for fibromyalgia and CFS also gave no indication that he has a diagnosed disability or symptoms not related to a diagnosed disability that result in functional impairment of earning capacity. The examiner specifically noted that the Veteran's ability to work was not impacted. Consequently, the Board finds that the Veteran has not experienced a current disability for VA purposes related to his reports of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms under both Sanchez-Benitez I and Saunders. The Board has considered the September 2018 independent medical expert opinion that the Veteran's fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms "are much more likely to be related to underlying musculoskeletal injuries and arthritis coupled with his history of depression and profound trauma sustained during the war". In this regard, the Board notes that the Veteran's service treatment records reflect a February 1969 injury to his right thumb, and VA treatment records reflect that he underwent reconstruction to both thumbs in September 2015. However, there is nothing in the record to reflect that this claim was intended to be a claim for service connection for a thumb disability. The Veteran's complaints related to the claim on appeal have included fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms. The Veteran has never asserted that he has a current thumb disability as a result of his active duty and, therefore, the Board finds this is not the claim that is on appeal and should not be addressed in the first instance in this determination. Further, the Board notes that VA treatment records reflect that the Veteran's medical history includes chronic pain in both wrists, knees, shoulder, and neck. See VA treatment record, August 2019. His prior surgical history included a right shoulder arthroscopy in September 2015, reconstruction of both thumbs, arthroscopy surgery of both knees, and bilateral trigger release and palmar fibromatosis excision in September 2014. Id. The January 2020 fibromyalgia DBQ noted that the Veteran had knee problems, which are related to specific knee conditions for which he has had surgery, and neck problems, all of which are due to tightness and muscle strain in both trapezius muscles. With regard to his wrists, neck, knees, and shoulders complaints, the Board finds that the claims file does not contain persuasive medical evidence linking these complaints to service or to a service-connected disability. As noted above, the September 2018 independent medical expert opinion indicated that the Veteran's fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms "are much more likely to be related to underlying musculoskeletal injuries and arthritis coupled with his history of depression and profound trauma sustained during the war". However, the September 2018 medical expert also specifically noted that the timing and mechanism of the Veterans' other injuries (shoulder, knees, neck) are unclear. Due to this uncertainty, the Board does not find that this opinion is sufficient to relate a diagnosed disability to the Veteran's active service. With regard to relating the Veteran's complaints to his service-connected PTSD, the Board notes that, while the September 2018 medical expert related the Veteran's symptoms to his depression and his war-related emotional trauma, she did not give a detailed rationale for linking a separately diagnosed disability to his service-connected PTSD. As such, the Board does not find that this opinion is sufficient to relate a diagnosed disability to the Veteran's service-connected PTSD, By contrast, the medical professional who provided the January 2020 VA opinions reviewed the Veteran's claims file, noted the Veteran's assertions, and offered opinions with supporting explanations as to why, in his medical judgment, the Veteran does not have a diagnosed disability that is related to service or to the Veteran's service-connected PTSD with depressive disorder. As such, the Board places the most significant weight on the January 2020 VA medical opinions, which find against service connection. Thus, the Veteran's claim for service connection for a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms must fail on a direct basis and a secondary basis. The Board notes the Veteran's assertions that he has experienced fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms since his military service. Here, the Veteran's complaints as to duration of symptoms are certainly capable of lay observation. However, the Board finds that diagnosing a disability related to these identified complaints or linking current symptoms to events in service is not possible via lay observation, as the Veteran does not have training in orthopedic or neurological diseases. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current complaints and his service exists. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a condition manifested by symptoms of fatigue, weakness, generalized myalgias, arthralgias, and urinary symptoms, to include as secondary to service-connected PTSD with depressive disorder, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.