Citation Nr: 21040266 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-28 292 DATE: July 2, 2021 ORDER Service connection for chronic fatigue syndrome (CFS) and its residuals is granted. Service connection for a disorder manifested by dizziness is denied. Service connection for a disorder manifested by mental confusion is denied. REMANDED Total disability based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active duty from July 1989 to July 1992, to include service in Southwest Asia from January 1991 to May 1991. 2. The medical evidence is in a state of relative equipoise regarding whether service relates to objective symptoms of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) causing CFS, lack of concentration, and memory loss. 3. Chronic disorders causing dizziness and mental confusion are not shown. CONCLUSIONS OF LAW 1. CFS and its residuals were incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310, 3.317. 2. A disorder manifested by dizziness was not incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. A disorder manifested by mental confusion was not incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This case has been subject to multiple actions by the Board and by the U.S. Court of Appeals for Veterans Claims (Court). Most recently, in January 2019, the Board denied the claims. The Veteran appealed the decision to the Court. In October 2020, the Court vacated the decision and remanded the claims for additional consideration. The case is again before the Board for appellate review. Service connection The Veteran claims that he incurred CFS and disorders manifested by dizziness and mental confusion while serving in Southwest Asia during the Persian Gulf War. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a MUCMI that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War (PGW), or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). CFS and its Residuals As to a current disorder, the Veteran was diagnosed with CFS in 2012. Therefore, the first element of service connection is met. As to an in-service incurrence, service treatment records are absent of any complaints, diagnoses, or treatment for CFS and its residuals. Specifically, the Veteran sought treatment for foot pain and an infected finger, among others, but did not report CFS or symptoms of CFS. However, personnel records reflect that he served in Southwest Asia from January 1991 to May 1991. Therefore, he served in the Southwest Asia Theater during the PGW. Further, he is competent to report exposure to things such as smoke, dust, and haze, as that is something that may be perceived by use of his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the above, the second element of direct service connection is met. As to nexus, a May 2014 VA examiner opined that, based on the Veteran's complaints and treatment of fatigue, he did not have a diagnosable but medically unexplained chronic multisystem illness of unknown etiology. This evidence weighs against the claim. However, other opinions tend to support the claim. In a March 2011 VA examination, the examiner opined that while the Veteran did not have CFS, he did have fatigue due to an undiagnosed illness. This evidence weighs in support of the claim. In an April 2012 VA examination, the examiner opined that the Veteran had a MUCMI causing chronic daily fatigue, memory, and attention issues. This evidence weighs in support of the claim. Further, in a December 2019 private opinion, the clinician wrote that the Veteran had participated in a study showing that Gulf War illness is due to mitochondrial damage which leads to multiple symptoms spanning from fatigue, cognitive challenges, muscle problems, and exercise intolerance. This evidence weighs in support of the claim. In sum, the Board cannot find that a preponderance of the evidence is against the claim. Indeed, the evidence is in a state of relative equipoise. As such, the Board will grant the Veteran the benefit of the doubt and find that CFS and its residuals were incurred as a result of PGW service. Dizziness and Mental Confusion The Veteran asserts that dizziness and mental confusion are due to service. However, in order to grant service connection, the evidence must first demonstrate the existence of the claimed disability. Here, the evidence includes the Veteran's medical history, to include medical records from VA and private treatment providers, detailing the treatment for many other ailments. The treatment providers routinely listed the Veteran's ongoing health concerns; however, no mention of dizziness or mental confusion was ever made. The Veteran has denied dizziness on multiple occasions. And in a March 2012 VA examination, the examiner wrote that the Veteran did not have a disorder manifested by mental confusion. The Veteran submitted a study showing brain damage among PGW veterans. However, as he has not been diagnosed with a disorder manifested by dizziness and/or mental confusion, the medical evidence does not support the claim of service connection. The Board has considered the Veteran's assertions that these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to offer etiologies of these complaints. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the claims of entitlement to service connection for dizziness and mental confusion are denied. REASONS FOR REMAND The Veteran's combined disability rating is 10 percent. He does not currently meet the schedular criteria for TDIU. As the assignment of a rating for CFS and its residuals is pending, the claim of entitlement to TDIU is remanded pending the adjudication of the severity of CFS and its residuals. (Continued on the next page) The matter is REMANDED for the following actions: After assigning the initial rating for CFS and residuals, readjudicate the issue of entitlement to a TDIU. If in order, then return the issue to the Board. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.