Citation Nr: 21030805 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-25 805 DATE: May 19, 2021 ORDER Service connection for chronic fatigue syndrome (CFS) is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran suffers from CFS. CONCLUSION OF LAW The criteria for service connection for CFS, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from February 2001 to February 2005 and June 2007 to June 2008, including service in Iraq. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in January 2019 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and 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, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Irritable bowel syndrome; Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term medically unexplained chronic multi-symptom illness means 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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 chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia 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 event 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). The United States Court of Appeals for the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). CFS The Veteran seeks service connection for CFS. In support, he reported that his CFS was caused due to his service-connected disabilities. See BVA hearing transcript (October 2018). The Board finds that service connection is not warranted for CFS. In January 2019 the Board remanded this issue with instructions for the examiner to diagnose all fatigue conditions present and to provide an opinion if they are related or caused by his service or his service-connected disabilities. In March 2021, the Veteran was provided a VA examination and the examiner stated that the Veteran does not meet the criteria for a CFS diagnosis. See VA medical examination (March 2021). The rationale was that the Veteran has fatigue as symptom of his PTSD with insomnia and obstructive sleep apnea. His claimed fatigue is not a separate diagnosis or disability, rather, it is a symptom of his PTSD and sleep apnea. Id. The Board finds that the preponderance of the evidence shows that the Veteran does not suffer from CFS. The Board further finds that there is no evidence that CFS occurred in or was caused by or aggravated by service or his service-connected disabilities. Moreover, there is no evidence of recurrent problems or symptoms, functional impairment or a diagnosis that can suggest a condition is present. Additionally, the Board finds the VA examiner's opinion cogent, well-reasoned, and probative of the matter. In short, the evidence does not show that the Veteran suffers from CFS and his fatigue is part of his service-connected PTSD. While the Board acknowledges the Veteran's contention that he has CFS, the Board finds that the Veteran is not competent to diagnose himself with this disability absent consistent medical evidence supporting the claimed diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, service connection is not warranted. In light of the forgoing, the Board finds that in light of the findings and conclusions set forth in the March 2021 VA examination, and the absence of medical and lay evidence suggesting CFS, to be persuasive and of the greatest probative value. In sum, the evidence shows that the Veteran does not have CFS, thus service connection is not warranted. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for CFS. As such, service connection is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.