Citation Nr: 21031062 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-05 036 DATE: May 20, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran does not have chronic fatigue syndrome. 2. The Veteran's pes planus was noted at the time of his entrance into military service in August 1990, and his pes planus is not shown to have permanently increased in severity beyond its natural progression during his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 2. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to October 1991 and from January 2008 to February 2012. The Veteran served in Afghanistan from May 2010 to October 2011. This appeal came before the Board of Veterans' Appeals (Board) on appeal from November 2015 and May 2017 rating decisions by a Department of Veterans Affairs (VA) Regional office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned. The transcript has been associated to the record. In November 2019, the Board remanded the appeal to the RO for additional development. Specifically, the Board requested to obtain any outstanding service personnel records to determine whether the Veteran served in the Southwest Asia Theater of Operations and for any outstanding medical treatment records. The Board also requested that the Veteran be afforded new VA examinations for chronic fatigue syndrome and for bilateral pes planus. The Board finds that the RO complied with the remand instructions and that the appeal is properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303 (b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1132 (presumption of sound condition). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234; see also 38 U.S.C. § 1132. "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a threshold issue, it is disputed whether the Veteran served in Southwest Asia. The Veteran served in Afghanistan from May 2010 to October 2011. 38 C.F.R. § 3.317 (e) defines the Southwest Asia theater of operations as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. Because the Veteran does not meet the geographical service requirement, he is not eligible to qualify for entitlement to service connection pursuant to 38 C.F.R. § 3.317. 1. Entitlement to service connection for CFS The Veteran contends that he has chronic fatigue syndrome as a result of his service in Afghanistan. He reported that he felt tired all the time during his deployment and that he suffered from insomnia. He also contended that his CFS is secondary to his service-connected post-traumatic stress disorder. The Veteran's service treatment records (STRs) do not indicate that the Veteran suffered from chronic fatigue syndrome. While STRs do indicate that the Veteran suffered from insomnia and sought treatment for it, there is no indication that the insomnia was a manifestation of CFS. There is also a notation in June 2011 that the Veteran was feeling tired or had little energy nearly every day and that he had trouble falling or staying asleep nearly every day. In the October 2012 General Medical Compensation Disability Benefits Questionnaire, there was no indication that the Veteran suffered from CFS. VA treatment records report that the Veteran suffers from insomnia, but do not attribute it to CFS. The insomnia is linked with the Veteran's service-connected psychiatric disorder. There is also an indication that the Veteran experienced fatigue or loss of energy nearly every day, but that it was associated in the Veteran's psychiatric disorder diagnosis. The Veteran was afforded a Gulf War General Medical Examination in March 2016. There was no indication that the Veteran suffered from CFS. In the August 2019 Board hearing, the Veteran reported that while he was deployed to Afghanistan, he was unable to sleep and was always up. He furthered that he was tired a lot since he could not get any sleep. He claimed that the clinicians have attributed the Veteran's insomnia to his PTSD but had not attributed his fatigue to PTSD. He furthered that he had a conversation with his psychiatrist that he had CFS, but he was unsure of whether the psychiatrist put it in the record. The Veteran was afforded a VA examination in January 2020. The examiner indicated that there was no objective evidence to support a diagnosis of CFS. The Veteran reported sudden onset of generalized fatigue and tiredness once his deployment to Afghanistan started in 2010. The Veteran reported that the fatigue and tiredness lasted approximately eight to ten hours per day almost every day. The examiner then reported that the Veteran "does meet the criteria for chronic fatigue syndrome. Symptoms of sleep apneic, fatigue, headaches are more likely than not related to the service-connected PTSD." While the examiner claims that the Veteran does meet the criteria for CFS in this statement, the Board finds that it was a typed mistake and that it meant that the Veteran does not meet the criteria for CFS since earlier in the examination the examiner repeatedly noted that the Veteran did not have a diagnosis of CFS. The examiner further opined that based on the review of the medical record, the Veteran's military service medical records do not support that the currently diagnosed condition related to the Veteran's claimed chronic fatigue syndrome is at least as likely as not related to an in-service injury, event, or disease. Regarding the secondary service connection contention, the examiner opined that the Veteran's claimed chronic fatigue syndrome is less likely than not proximately due to or the result of the Veteran's service-connected PTSD since there is no diagnosis of CFS. Based on the competent and credible evidence of record, the Board finds that the Veteran does not have a clinical diagnosis for CFS for VA purposes. While there is indication that the Veteran suffers from fatigue and tiredness, it is attributed to the Veteran's PTSD. Moreover, while the Veteran reported that his psychiatrist diagnosed him with CFS, there is no medical evidence indicating this. Additionally, because the Veteran does not qualify under 38 C.F.R. § 3.317 as a Persian Gulf Veteran, the presumption does not apply, and the lack of diagnosis cannot be found to warrant service connection. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service or to service-connected PTSD. The Board has considered the Veteran's lay statements regarding his symptomatology. As a lay person, the Veteran is competent to report on that which he has personal knowledge, including symptoms such as fatigue, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, in this case, the medical evidence reveals that the Veteran's fatigue has been related to other disabilities. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Fagan, 573 F.3d at 1282. 2. Entitlement to service connection for bilateral pes planus The Veteran contends that his bilateral pes planus originated during military service. The Veteran's STRs show that his August 1990 entrance physical noted mild pes planus and that the examiner checked the box indicating that the Veteran had an abnormality of the feet. STRs from June 2008, August 2011, and November 2011 include flat foot among the Veteran's listed problems. VA treatment records, including from March 2017, report that the Veteran had pes planus. In the August 2019 Board hearing, the Veteran testified that he was treated for flat feet right as soon as he entered military service. He reported that he was put on profile for flat feet and was given medicine and orthotics to help with arch support. He further reported that he first visited VA in February 2012 to seek treatment for his feet. He was provided memory foam inserts. The Veteran claimed that he never had problem with his feet before he entered military service. The Veteran was afforded a VA examination in January 2020. The examiner diagnosed him with pes planus with a diagnosis date of 1990. The Veteran reported that his bilateral flat feet disorder started prior to service but was aggravated during deployment in Afghanistan. He furthered that his feet would become painful after hikes and from wearing the military boots. The examiner noted that pain was aggravated with prolonged standing, walking, or climbing stairs. The examiner opined that the Veteran's STRs do not support that the currently diagnosed bilateral pes planus is at least as likely as not incurred in or caused by the bilateral pes planus during service. The examiner noted that the notation "pes planos" on the August 1990 enlistment examination, prior to the Veteran's first period of service, showed that the Veteran had bilateral pes planus at that time. The examiner further opined that it was less likely than not that the Veteran's bilateral pes planus was aggravated beyond its natural progression by an in-service injury or event. The examine indicated that the baseline level of severity of the Veteran's bilateral pes planus was reflected in the August 1990 enlistment examination since it showed that the Veteran had mild asymptomatic bilateral pes planus at that time. STRs from December 2007 showed that the Veteran had moderate asymptomatic bilateral pes planus. Additionally, STRs from April 1991 to October 1991 were silent for treatment of bilateral pes planus. The examiner explained that post-service treatment records within one year of discharge from service were silent for any complaint for bilateral pes planus. The separation examination from August 2011 noted normal arch bilateral feet with not complaint for bilateral feet disorder. The examiner concluded that based on the above evidence it was less likely than not that the Veteran's bilateral pes planus was aggravated beyond its natural progression by an in-service injury or event. Laypersons are competent to testify as to their observations and as to some medical matters, including the existence of pes planus. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The question as to whether his pes planus was aggravated by his active service, as opposed to the observation of an existence of pes planus itself, appears to be the type of complex medical matter as to which laypersons are not competent to testify. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not submitted any medical evidence showing that his pes planus was aggravated by his active service, and in fact, he had a normal examination of his feet at his separation physical. The January 2020 VA examiner opined that the Veteran's pes planus pre-existed military service and that it was not aggravated beyond its natural progression by the Veteran's active service. The Board finds this examiner's opinion to be probative as it is evident that he reviewed all of the Veteran's medical treatment records and took into consideration of the Veteran's lay statements. As such, the Board concludes that the Veteran's pes planus, which was noted at service entrance, did not undergo aggravation in service. Accordingly, the criteria for service connection has not been met and the Veteran's service connection claim for bilateral pes planus is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.