Citation Nr: 21041274 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-26 514 DATE: July 8, 2021 ORDER Entitlement to service connection for a disability manifested by fatigue, characterized as chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or medically unexplained chronic multi-system illness as a result of Persian Gulf War service is denied. FINDING OF FACT The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome (CFS); he has not been diagnosed with CFS; no generalized fatigue is diagnosed; and his fatigue symptoms have been attributed to known diagnosed conditions, including service-connected posttraumatic stress disorder (PTSD) and gastrointestinal reflux disease (GERD), and non-service connected obstructive sleep apnea and obesity. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by fatigue, characterized as chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or medically unexplained chronic multi-system illness as a result of Persian Gulf War service, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision code sheet issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in January 2021 to obtain an addendum medical opinion. The RO obtained an addendum medical opinion in March 2021. As such, a review of the record shows substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that after the RO issued an April Supplemental Statement of the Case (SSOC), a May 2021 VA examination assessing the Veteran's service-connected posttraumatic stress disorder (PTSD) with sleep impairment was associated with the claims file; however, it is duplicative of evidence already of record concerning the Veteran's PTSD as it relates to the issue on appeal. Therefore, remand for initial consideration of the evidence by the RO and issuance of an SSOC is not warranted. 38 C.F.R. §§ 19.31, 19.37(b). Entitlement to service connection for a disability manifested by fatigue, characterized as CFS, to include as due to an undiagnosed illness or medically unexplained chronic multi-system illness as a result of Persian Gulf War service. The Veteran seeks service connection for a disability manifested by fatigue. See April 2011 VA Form 21-526. Specifically, the Veteran contends that he has been experiencing CFS since leaving the Gulf War era. See November 2020 Statement in Support of Claim. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period, and 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(a)(1). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) 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; (2) 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 (3) 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. 38 C.F.R. § 3.317(c). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). The evidence of record demonstrates the Veteran served in Southwest Asia during his active duty service. Therefore, he is a Persian Gulf veteran for these purposes. See 38 C.F.R. § 3.317(e)(1). As noted, the Veteran contends that he has CFS related to his service in the Gulf War. See November 2020 Statement in Support of Claim. The evidence does not, however, show objective indications of a qualifying chronic disability. In that regard, the Veteran was afforded a Gulf War VA examination in April 2012. The Veteran reported that his fatigue symptoms were, in part, due to a poor sleep pattern; he awakened during the night, sometimes due to his acid reflux; unable to get back to sleep for a period of time; and feels fatigued every morning due to stiffness. See April 2012 VA examination. The VA examiner concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome; did not have an unexplained pattern of disability; and his complaints were less likely as not related to a specific exposure event experienced in Southwest Asia. Id. The VA examiner noted the Veteran's conditions had a specific diagnosis. Id. The VA examiner explained that the Veteran has posttraumatic stress disorder (PTSD) with episodes of hypervigilance when he awakens at night; and has documented gastrointestinal reflux disease (GERD) which the Veteran stated caused him discomfort and interfered with sleep causing him to awaken frequently. Id. The VA examiner further noted the Veteran's history of poor sleep was the most likely cause of the Veteran's fatigue during the day. Id. In August 2011, the Veteran was afforded a VA PTSD examination. The Veteran reported his PTSD symptoms result in sleep disruption and fatigue. See August 2011 VA examination. The Veteran reported difficulty falling or staying asleep. Id. The VA examiner noted chronic sleep impairment as a symptom of the Veteran's PTSD. Id. In June 2018, the Veteran was afforded a VA PTSD examination where he reported problems staying asleep, sleep disturbance, and chronic sleep impairment symptoms. See June 2018 VA examination. Chronic sleep impairment was noted to be a symptom of the Veteran's PTSD. Id. In a January 2020 Panel Decision, the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the issue on appeal in order to obtain a new VA examination considering whether the Veteran's fatigue should be considered a qualifying chronic disability under 38 U.S.C. § 1117. The Court noted the April 2012 VA examiner did not answer whether both the etiology and pathophysiology of the Veteran's fatigue were known. Pursuant to the Court's January 2020 Panel Decision, the remanded the issue on appeal in June 2020. The Veteran was afforded a CFS VA examination in October 2020. The Veteran reported that after leaving the Gulf War he started feeling tired, muscle aches in both arms and legs, and low energy. See October 2020 VA examination. The VA examiner concluded that the Veteran's symptoms did not meet the required criteria to warrant a diagnosis of CFS at that time. Id. Consequently, the VA examiner did not provide an opinion as to whether the Veteran's fatigue was related to his active duty service. Additionally, the VA examiner did not provide an adequate opinion addressing whether the Veteran's complaints of fatigue otherwise represented a disability pattern consistent with an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness, a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or a disease with a clear and specific diagnosis, etiology, and pathophysiology. Therefore, in January 2021, the Board found the October 2020 VA examination inadequate for decision making purposes and remanded for another opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Stewart v. Wilkie, 30 Vet. App. 383, 392 (2018). An addendum opinion was obtained in March 2021. The VA examiner noted review of the Veteran's medical records. See March 2021 VA examination. The VA examiner concluded that the Veteran's fatigue is a disease with a clear and specific diagnosis, etiology, and pathophysiology. Id. The VA examiner explained that CFS is a diagnosis of exclusion and that the Veteran has obstructive sleep apnea and is obese. Id. The VA examiner noted that the Veteran's obstructive sleep apnea and obesity are the most likely cause of his fatigue and they cannot be excluded from the differential diagnosis. Id. The VA examiner found no evidence to support the exclusionary diagnosis of CFS and therefore concluded that the Veteran did not have CFS. Id. The VA examiner also noted that it would not be possible to correlate the condition to his service or any possible exposure event. Id. The VA examiner further stated that obstructive sleep apnea is due to the Veteran's obesity obstruction of the upper airways during sleep; obesity is due to diet, lifestyle, habits, genetic predisposition, inactivity/lack of exercise; and there was no evidence that any exposure caused the Veteran to gain weight and thereby obstructive sleep apnea. Id. In light of the above, the Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 5107(b). The probative evidence of record shows that the Veteran's reports of fatigue and related symptoms have been attributed to known diagnosed conditions, including his service-connected PTSD and GERD that caused chronic sleep impairment, and non-service-connected obstructive sleep apnea and obesity. As such, the Veteran's fatigue is being contemplated and compensated as part of his rating for PTSD and GERD associated with his PTSD. In this regard, medical records and VA examiners have consistently found sleep disturbances to part of his PTSD symptoms. The Board finds this medical evidence to be probative and distinguishes this situation from that of Mittleider v. West, 11 Vet. App. 181, 182 (1998) (stating that when it is not possible to separate the effects of a service-connected and non-service-connected disability, such signs and symptoms should be attributed to the service-connected disability). Additionally, the record demonstrates that the Veteran's fatigue has been associated with the non-service-connected obstructive sleep apnea and obesity. As noted, the March 2021 VA examiner did not find that the Veteran's obstructive sleep apnea or obesity are related to his active duty service. Therefore, the Board finds the Veteran does not have a current diagnosis for CFS that is related to his active duty service. The Board acknowledges the Veteran's statements; however, to the extent the Veteran asserts that he has a diagnosis of CFS related to his Gulf War service, the Board notes that he has not been shown to have the medical training necessary to be deemed competent to diagnose such condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, the Veteran, nor his representative, have provided any competent evidence diagnosing the Veteran with CFS. The Board finds most probative the opinions provided by the March 2021 VA examiner that determined that the Veteran does not have a current diagnosis for CFS and that his fatigue symptoms have a clear and specific diagnosis, etiology, and pathophysiology, to include service-connected and non-service-connected disabilities. Therefore, the Veteran does not have an undiagnosed disability or a medically unexplained chronic multi-symptom illness pursuant to 38 C.F.R. § 3.317. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The most probative evidence of record demonstrates the Veteran does not have a current diagnosis for CFS at any time during, or proximate to the claim. See 38 C.F.R. §§ 3.304(f), 4.125(a). Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.