Citation Nr: 21031878 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-15 908A DATE: May 24, 2021 ORDER Service connection for disability manifested by chronic fatigue is denied. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a disability manifested by chronic fatigue, and the record does not contain a diagnosis of disability proximate to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for fatigue have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.1. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1973 to December 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ), and a transcript of the hearing is of record. The Veteran was notified in a March 2018 letter that the VLJ who conducted the November 2017 hearing was no longer employed by the Board and that the Veteran had a right to another hearing. However, he responded in April 2018 that he did not wish to testify at an additional hearing. In July 2018 and July 2020, the Board remanded the case for additional development; it now returns for further appellate review. As an initial matter, this appeal originally included a claim of service connection for an acquired psychiatric disorder. In a January 2021 rating decision, the RO granted service connection for depressive disorder, unspecified with anxious distress. As such constitutes a full grant of the benefit sought on appeal, the issue is no longer on appeal before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for disability manifested by chronic fatigue. The Veteran contends that he has a current disability manifested by chronic fatigue related to service. Alternative, he asserts such disability is secondary to a service-connected disability. In a December 2011 statement, the Veteran reported that he has suffered from fatigue since he was hospitalized at Myrtle Beach Air Force Base (AFB) in August 1974. In a January 2012 statement, the Veteran reported that he suffers from fatigue due to his bilateral tinnitus, bilateral hearing loss, and sleep apnea. In an August 2012 statement, the Veteran stated that his sleep apnea has caused him to suffer from fatigue on a daily basis. In an August 2014 statement, the Veteran stated that he suffered from sleep apnea, which causes fatigue. At the November 2017 Board hearing, the Veteran also asserted that his fatigue was related to his sleep apnea. Preliminarily, the Board notes that the Veteran is in receipt of service connection for bilateral tinnitus, but he is not currently service-connected for bilateral hearing loss or sleep apnea. In a December 2011 buddy statement, a coworker of the Veteran mentioned that he noticed the Veteran would sit down at work and fall asleep because of the lack of sleep he was getting. Looking at the Veteran's service treatment records (STRs), an August 1974 treatment record notes that the Veteran had a sore throat, cough, and general malaise; the examiner diagnosed viral pharyngitis. The STRs are otherwise silent for any complaint, diagnosis, or treatment referable to fatigue during the Veteran's active service. In a March 3, 2009, private treatment record, the Veteran complained of daytime somnolence, snoring, and fatigue. In an undated private treatment record, the Veteran complained of daytime somnolence, and the examiner sent the Veteran for a sleep study. In a March 10, 2009, private sleep study, the examiner noted that the Veteran had morning headaches and fatigue with a stated four hours of sleep per night during the week and five hours of sleep on weekends. In a December 2009 private treatment record, the Veteran reported that he felt very tired, and he was reported to have a diagnosis of obstructive sleep apnea. In a July 2019 VA examination for sleep apnea, the VA examiner noted that the Veteran's signs and symptoms of sleep apnea included persistent daytime hypersomnolence. In a December 2020 VA examination related to the Veteran's claimed fatigue, the Veteran reported that, in 1974, he was hospitalized with a viral infection and deviated septum, and he had a sinus infection complicated by tiredness and falling asleep during the daytime. He noted that he still has problems with fatigue and falling asleep during the daytime. However, the VA examiner found that the Veteran did not have chronic fatigue syndrome. The VA examiner stated that, for the claimant's claimed condition of chronic fatigue, there is no diagnosis because there are no findings, signs, and/or symptoms to support a diagnosis. In a related medical opinion, the December 2020 VA examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the Veteran has no symptoms, diagnosis, or treatment for chronic fatigue syndrome. The Veteran's STRs and treatment records are quiet for symptoms, diagnosis, or treatment for chronic fatigue syndrome. The VA examiner explained that the Veteran has fatigue that is a symptom, but he has no diagnosis of chronic fatigue. The Veteran has complained of fatigue, but such fatigue is in association with other problems, such as sleep apnea, heart disease, elevated body mass index, and medication. Concerning the Veteran's assertions of secondary service connection for fatigue due to tinnitus, the December 2020 VA examiner found that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected tinnitus. The VA examiner observed that Veteran has had episodes of fatigue off and on for years, but he has not had consistent fatigue. Such episodes of fatigue are usually associated with other problems, such as sleep apnea, heart disease, or recovering from hospital stay. He was never treated or diagnosed with chronic fatigue while in service; he has no symptoms, diagnosis, or treatment of a chronic fatigue syndrome in his VA medical records. He has symptoms of fatigue associated with his sleep apnea, ischemic heart disease, and diabetes. The VA examiner also noted that there are no findings in records or in medical literature that associated fatigue related to tinnitus. Thus, the VA examiner determined that the Veteran's claimed condition of chronic fatigue is less likely than not due to his service-connected disabilities, including his tinnitus. As shown above, the evidence of record from the period on appeal does not include a diagnosis of chronic fatigue or chronic fatigue syndrome. When fatigue is acknowledged in the Veteran's medical records, it is usually mentioned as a symptom of sleep apnea, not a chronic condition in and of itself. Likewise, the December 2020 VA examiner noted that the Veteran's fatigue is not a consistent disability or disorder but rather a symptom associated with another condition. Therefore, the Board finds that the Veteran does not have a current disability of fatigue or chronic fatigue for purposes of VA service connection. 38 C.F.R. § 3.303(d). The Board acknowledges that, in an August 2006 private treatment record, the examiner stated that the Veteran had chronic fatigue. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In the instant case, the Veteran did not submit the current claim at issue until January 2012. Thus, the August 2006 private treatment note that mentions chronic fatigue was from more than five years prior to the current appeal. The probative evidence of record fails to demonstrate a current disability of chronic fatigue or chronic fatigue syndrome at any point during the pendency of the claim. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of such disability. In this regard, the Veteran has not identified or submitted any treatment records reflecting a diagnosis of chronic fatigue subject to service connection at any point during or recent to the appeal period. In sum, the Board finds that service connection for fatigue cannot be established as the Veteran does not have a current diagnosis of such a chronic disability during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of chronic fatigue prior to his filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. The Board affords great probative weight to the December 2020 VA examiner's opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and the relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Notably, there is no medical opinion to the contrary. In this regard, the Board has considered the Veteran's statements that he has a chronic fatigue disorder that is caused by or related to his active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the nature and diagnosis of his claimed fatigue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such a disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and diagnosis of his claimed fatigue are not competent evidence and, consequently, are afforded no probative weight. (Continued on the next page) In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.