Citation Nr: 21039861 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-14 152A DATE: July 1, 2021 ORDER Service connection for chronic fatigue syndrome is granted. REMANDED Service connection for a cervical spine disability remanded. An initial disability rating in excess of 10 percent for arthritis of the thoracolumbar spine prior to December 19, 2019, and in excess of 20 percent since that date, is remanded. An initial compensable disability rating for dyschromia prior to December 19, 2019, and in excess of 30 percent since that date, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran had active service in the Southwest Asia theater of operations and his chronic fatigue syndrome has not been attributed to a conclusive pathophysiology or etiology, is of a compensable degree, and has been present for at least six months. CONCLUSION OF LAW The criteria for service connection for chronic fatigue syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to December 1987 and January 1989 to February 1996 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2015 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In July 2020, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. As discussed at the July 2020 hearing, the claim for a TDIU has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Service connection for chronic fatigue syndrome is granted. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, service connection may be established for qualifying chronic disabilities if there is evidence that the claimant is a "Persian Gulf veteran" who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and (ii) 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 qualifying "chronic disability" includes an undiagnosed illness, or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology. Disabilities that have existed for six months or more, and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. Compensation shall not be paid pursuant to 38 C.F.R. § 3.317(a) if there is affirmative evidence that a chronic disability: (1) was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; (2) 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 and the onset of the illness; or (3) is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Here, the Board finds that the Veteran is entitled to service connection for his chronic fatigue syndrome by application of 38 C.F.R. § 3.317. As 38 C.F.R. § 3.317 contains multiple provisions, the Board will address the components of the regulation separately. First, the Board finds the Veteran qualifies as a "Persian Gulf Veteran." A Persian Gulf Veteran is a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes 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. The Veteran's service separation document (DD Form 214) shows that he had service in Southwest Asia from December 1990 to May 1991, and his service personnel records specifically document service in Saudi Arabia during this time. The Veteran also has a "qualifying chronic disability," namely, chronic fatigue syndrome. See September 2016 private medical report and November 2016 Disability Benefits Questionnaire (DBQ). The November 2016 DBQ clearly indicates that the requirements for establishing a diagnosis of chronic fatigue syndrome pursuant to 38 C.F.R. § 4.88a have been met. Chronic fatigue syndrome is specifically included as an example of a medically unexplained chronic multisymptom illness (MUCMI), and, as indicated by the 2016 private medical reports, the etiology and pathophysiology of the Veteran's chronic fatigue syndrome are inconclusive. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (holding that an illness is a MUCMI where either the etiology or the pathophysiology of the illness is inconclusive and is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.) To the extent a January 2017 VA examiner found that current chronic fatigue syndrome was not diagnosed in or since service, that report is not persuasive. See McLain v. Nicholson, 21 Vet. App. 319 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). There are also "objective indications" of the Veteran's chronic fatigue syndrome. Objective indications of a chronic disability include 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. Signs or symptoms that may be manifestations of a medically unexplained chronic multisymptom illness may include fatigue. 38 C.F.R. § 3.317(b). Objective evidence of chronic fatigue syndrome documented by the November 2016 DBQ includes palpable or tender cervical or axillary lymph nodes, in addition to clinical evidence of fatigue. The Veteran's undiagnosed illnesses also meets the six-month "chronicity requirement" of the regulation. The November 2016 DBQ examiner noted in the September 2016 narrative report the Veteran has experienced chronic fatigue since his service in the Southwest Asia Theater of operations, and that his fatigue is constant. Further, the Veteran's chronic fatigue syndrome is compensable to a "degree of at least 10 percent." Pursuant to 38 C.F.R. § 4.88b, Diagnostic Code 6354, a 10 percent rating for chronic fatigue syndrome may be assigned for symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. Higher ratings are assigned for longer periods of incapacitation. The November 2016 DBQ indicates that the Veteran's symptoms wax and wane and result in periods of incapacitation lasting at least two weeks but less than four weeks. Finally, there is no evidence showing that the Veteran's chronic fatigue syndrome was caused by a supervening condition or event, willful misconduct, or the abuse of alcohol or drugs. Thus, resolving any doubt in his favor, the claim for service connection must be granted. REASONS FOR REMAND 1. Service connection for a cervical spine disability remanded. 2. An initial disability rating in excess of 10 percent for arthritis of the thoracolumbar spine prior to December 19, 2019, and in excess of 20 percent since that date, is remanded. 3. An initial compensable disability rating for dyschromia prior to December 19, 2019, and in excess of 30 percent since that date, is remanded. 4. A TDIU is remanded. The claims remaining on appeal must be remanded in order to ensure that the Veteran is afforded due process. Specifically, in February 2021, the Board sent the Veteran a letter asking him whether he waived his right to have the case remanded to the VA Regional Office for the initial review of pertinent evidence, including VA treatment records, that were associated with the claims file by VA since the VA Regional Office's last readjudication of the claims. In February 2021, the Veteran responded, stating that he declined to waive initial VA Regional Office review, and asking the Board to remand his case to the VA Regional Office for review of the evidence. As such, the claims must be remanded for this purpose. Additionally, the claim for service connection for a cervical spine disability must be remanded for a further medical opinion. While a VA examination was conducted in January 2017, the examiner predicated his negative nexus opinion on the lack of a "specific diagnosis" related to the cervical spine in the service treatment records. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A further opinion, accounting for the Veteran's reported symptoms in service, must be obtained. The claim for a higher rating for dyschromia, a skin disability, must also be remanded for further medical findings. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims such as this, pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. Under the version of the regulations in effect prior to an August 13, 2018 revision, higher ratings may be assigned based on the frequency of systemic therapy, however, systemic therapy was not defined. Consistent with the Court's decision in Burton v. Wilkie, 30 Vet. App. 286 (2018), a remand is required to obtain evidence regarding whether the Veteran's topical Cortisone treatment, documented on VA examination in May 2015, may be considered systemic therapy. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his cervical spine disability. A rationale must be provided for all conclusions reached. While a medical opinion is required, you are asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) Opine on whether it is at least as likely as not that the current cervical spine disability began during any period of active service or is related to an in-service injury, event, or disease, to include the Veteran's reports of persistent neck pain since the early 1990s. (B.) Opine on whether the cervical spine disability constitutes an "undiagnosed illness" or a "medically unexplained chronic multisystem illness." 2. Afford the Veteran a VA examination to ascertain the current severity of his dyschromia, in accordance with the applicable worksheet for rating the disability. Regarding the topical Cortisone used to treat the disability, as noted on VA examination in May 2015, as well as for any other current treatment, the examiner is asked to address the following, and provide a rationale for all opinions: (A.) State whether topical Cortisone, or any other treatment utilized by the Veteran, operates by affecting the body as a whole in treating his dyschromia, e.g., whether it is "systemic therapy". (B.) Opine on whether topical Cortisone, or any other current treatment utilized by the Veteran, is "like" a corticosteroid or other immunosuppressive drug. (C.) Obtain and document for the record the onset of use, and duration of use, of topical Cortisone or any other treatment the Veteran has required for dyschromia throughout the course of the appeal. 3. In accordance with the Veteran's February 2021 request, readjudicate the claims remaining on appeal, considering all evidence added to the claims file since the November 2019 and January 2020 Supplemental Statements of the Case. If the benefits sought are not granted, provide the Veteran and his attorney with an updated Supplemental Statement of the Case. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.