Citation Nr: 21041380 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-25 860 DATE: July 9, 2021 ORDER Service connection for chronic fatigue is granted. FINDING OF FACT The Veteran's chronic fatigue is proximately due to his service-connected bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy. CONCLUSION OF LAW The criteria for service connection for chronic fatigue as secondary to service-connected bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision, which denied service connection for "chronic fatigue." After remanding this claim for further development in August 2015, the Board denied entitlement to service connection for "chronic fatigue syndrome" in a January 2016 decision, finding that the Veteran did not have a diagnosis of the condition. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in December 2016, the Court set aside the Board's decision and remanded the case for readjudication in compliance with directives in a Joint Motion for Remand (JMR). In the JMR, the parties agreed that the Board erred on three bases. It erred in finding that the Veteran had withdrawn his request for a Board hearing. It was also agreed that the Board failed to ensure that VA satisfied its duty to assist in providing an adequate examination. It was agreed that the report of a September 2015 VA examination for chronic fatigue syndrome was inadequate because the examiner did not sufficiently address the etiology of the Veteran's chronic fatigue in light of the evidence indicating an association between the chronic fatigue and his service-connected disabilities. Last, the parties agreed that the Board failed to provide an adequate statement of reasons or bases because it did not discuss whether the Veteran's original claim for entitlement to service connection for "chronic fatigue" more appropriately should have been construed as a request for an increased or proper rating for his service-connected disabilities under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As to this last item, the Board finds that it has been addressed implicitly by the Board in its August 2015 and October 2019 referrals to the agency of original jurisdiction (AOJ) for adjudication. In August 2015, in its referral, the Board noted correspondence received in August 2015 that raised the issues of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), entitlement to increased disability ratings for all diabetes mellitus, peripheral neuropathy of the lower extremities, and residuals of prostate cancer, and entitlement to service connection to an eye disability due to diabetes. In September 2015, at the same time as the VA examination for chronic fatigue syndrome, the Veteran was afforded examinations for diabetes mellitus, prostate cancer, neuropathy, and eye conditions. In a January 2016 rating decision, the AOJ continued the assigned disability ratings for the Veteran's service-connected disabilities without discussing the symptom of fatigue. It denied service connection for left eye choroidal nevus, and it denied TDIU. The Veteran did not appeal, and the January 2016 rating decision became final. See 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b); 38 C.F.R. § 3.156. In October 2019, noting an April 2019 statement, the Board referred to the AOJ the issue of entitlement to TDIU and increased disability ratings for each of the Veteran's service-connected disabilities. Noting that the Veteran had expressed a desire to file a claim, which must be on a prescribed form, the AOJ sent the Veteran a Request for Application letter and a VA Form 21-8940. See VA 21-8940 and Deferred Rating, received 8/19/2020; Request of Application, received 8/20/2020. The Veteran has not responded. The Board reiterates that it does not have jurisdiction over the assigned evaluations of the Veteran's service-connected disabilities, including TDIU, which currently include: bladder cancer status post bladder and lymph node removal with ileostomy, evaluated as 60 percent disabling effective November 2, 2009; peripheral neuropathy of the right lower extremity associated with diabetes mellitus Type II, evaluated as 40 percent disabling effective October 20, 2017; peripheral neuropathy of the left lower extremity associated with diabetes mellitus Type II, evaluated as 20 percent disabling effective October 20, 2017; erectile dysfunction associated with residuals, prostate cancer status post radical prostatectomy, evaluated as noncompensable effective May 7, 2009, and for which he is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ; residuals, prostate cancer status post radical prostatectomy, evaluated as noncompensable effective May 1, 2010; and scar status post lymph node removal associated with residuals, prostate cancer status post radical prostatectomy, evaluated as noncompensable effective February 28, 2012. The combined disability rating is 90 percent disabling effective October 20, 2017. See Rating Decision-Codesheet, received 11/14/2017. After remand in April 2017, a Board hearing was held in October 2017, and a transcript is of record. In January 2018 and October 2019, the Board remanded the issue of entitlement to service connection for "chronic fatigue, as secondary to service-connected disabilities," for further development, and the case has been returned for appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Aggravation need not be permanent, and objective measurement or numerical quantification is not required to ascertain an increase in disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), it was held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." In Martinez-Boden v. Wilkie, 32 Vet. App. 393, 395 (2020), it was held that the holding in Saunders is not limited to pain, but rather, applies in any case implicating the definition of disability in 38 U.S.C. § 1110. In Wait v. Wilkie, 33 Vet. App. 8, 17 (2020), it was explained that to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to the level to effect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Generally, veterans are presumed to be seeking the maximum benefit allowed by law and regulation, and VA is required to maximize benefits. 38 C.F.R. § 3.155(d)(2); Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019). There is a duty to compensate veterans for all their symptoms under schedular criteria prior to resorting to extraschedular provisions under 38 C.F.R. § 3.321(b). Morgan, 31 Vet. App. at 167. Two mechanisms for doing that are service connection on a secondary basis and utilizing analogous ratings. Id.; see 38 C.F.R. § 4.20. Three factors drive "whether one condition is related closely enough to another to permit rating by analogy: (1) The functions the condition affects; (2) the condition's location on the body; and (3) the similarity of symptoms." Morgan, 31 Vet. App. at 168 (citing Lendenmann v. Principi, 3 Vet. App. 345, 350-51 (1992)). Here, the Veteran seeks service connection for chronic fatigue, contending that, as a symptom of his service-connected disabilities, it is a separate service-connectable disability on a secondary basis. See Statement, received 2/27/2012; Correspondence, received 4/18/2019; Hearing Transcript, received 10/23/2017. The Board concludes that the Veteran's chronic fatigue is proximately due to his service-connected bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.155(d)(2), 3.310; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Wallin v. West, 11 Vet. App. 509, 512 (1998); Martinez-Boden v. Wilkie, 32 Vet. App. 393, 395 (2020); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020); Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019). The Veteran has reported that he worked as a financial planner for 40 years and was forced into retirement in 2009 due to fatigue after being treated for bladder and prostate cancer. He has reported that after sleeping a full night, he became exhausted after being up a couple of hours. He has reported taking naps several times per day of one to two hours such that he slept approximately 14 hours per day. He has reported that treating his sleep apnea with CPAP has not relieved his chronic fatigue. He reported that on good days, he could sit up and read or walk his block. He has reported difficulty walking due to diabetic neuropathy such that he wore gloves and used a cane, wheelchair, or walker to assist with ambulation. See C&P Exam, received 1/22/2020; Hearing Transcript, received 10/23/2017. The Veteran has a substantial medical history of chronic fatigue, starting in 2009 after surgery for bladder and prostate cancer. See C&P Exam, received 1/22/2020. VA medical records show that in May 2009 primary care and preventative care notations recorded extreme fatigue related to surgery and treatment. See CAPRI, received 8/19/2015. During October 2009 VA examinations for diabetes mellitus and genitourinary conditions, the Veteran reported being employed full-time and having missed 19 weeks of work in the previous 12-month period due to surgery and recovery. The examining clinician stated that fatigue was a symptom of the Veteran's diabetic nephropathy as well as being a general symptom due to genitourinary disease. It was opined that weakness or fatigue could result in work problems through increased absenteeism. See VA Examination, received 10/19/2009. In a January 2014 rehabilitation medicine consultation note it was recorded that the Veteran reported episodic and migrating weakness, and it was noted that he might have been experiencing fatigue-associated weakness. The Veteran reported weakness around 2009 that had progressively worsened. A January 2016 Agent Orange Registry Examination report shows general fatigue under review of systems. A March 2016 assessment/plan by Dr. G.G. shows fatigue syndrome on the Veteran's computerized problem list. See CAPRI, received 10/24/2017. The Board finds that the first Wallin element is met because the Veteran's chronic fatigue can be rated by analogy to chronic fatigue syndrome and his impairment rises to the level to affect earning capacity. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Chronic fatigue syndrome is described as debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. 38 C.F.R. § 4.88b, Diagnostic Code 6354. As explained below, the Veteran's symptoms have not been found to meet the diagnostic criteria for chronic fatigue syndrome. Because of the similarity of symptoms resulting in similar impact on bodily function, however, the Veteran's chronic fatigue is analogous to the disability of chronic fatigue syndrome, which is evaluated under 38 C.F.R. § 4.88b, Diagnostic Code 6354. VA amended the criteria for infectious diseases, immune disorders, and nutritional deficiencies effective from August 11, 2019. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 11, 2019. Claims 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 11, 2019, for the purpose of evaluating chronic fatigue syndrome, "the condition will be considered incapacitating only while it requires bed rest and treatment by a physician." 38 C.F.R. § 4.88b, Diagnostic Code 6354, Note. Effective August 11, 2019, "incapacitation exists only when a licensed physician prescribes bed rest and treatment." 38 C.F.R. § 4.88b, Diagnostic Code 6354, Note. The Board finds that the earlier provision under Diagnostic Code 6354 is more favorable to the Veteran. The evidence of record establishes that the Veteran has been under continuous medical care by physicians for his service-connected bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy. Since 2009, he has consistently and continuously reported extreme fatigue and his treatment plans of necessity have incorporated this symptom. The Veteran has reported sleeping 14 hours per day, which includes several hours-long naps during the day. He has reported that his chronic fatigue forced him into retirement. Without assessing the Veteran's actual severity of disability, the Board finds that the Veteran's chronic fatigue is manifested to a compensable degree. That being the case, the Veteran's chronic fatigue can be service-connected. As noted above, in pertinent part, the Veteran is service-connected for bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy. Therefore, the second Wallin element is met. The Board turns its attention to nexus. The Board notes that in its October 2019 remand it found that an October 2018 VA medical opinion was unresponsive to the Board's January 2018 remand directives. A January 2020 VA examining clinician stated that the Veteran's statements concerning experiencing chronic fatigue and having been diagnosed with chronic fatigue syndrome in 2016 by Dr. G.G. were credible as they were supported by the medical record. The clinician, however, opined that it was less likely than not that the Veteran's symptoms met the diagnostic criteria for chronic fatigue syndrome. It was explained that a key diagnostic feature of chronic fatigue syndrome is the absence of medical history or somatic problems prior to the onset of claimed chronic fatigue. In contrast, the Veteran's chronic fatigue manifested after his medical history of surgery for prostate and bladder cancer, thereby eliminating this key diagnostic feature for chronic fatigue syndrome. See C&P Exam, received 1/22/2020. In reference to the single 2016 notation of chronic fatigue syndrome in the Veteran's medical records, the examining clinician opined that it was not indicative of a detailed analysis of diagnostic criteria. The clinician noted that the Veteran had sudden onset of overwhelming fatigue after surgery in December 2008 for bladder and prostate cancer. In terms of exacerbation by excessive physical activity, it was noted that the Veteran was unable to increase physical activity due to multiple factors, including diabetic neuropathy. The clinician reiterated that the onset of the Veteran's fatigue was after major bladder surgery and that the Veteran had multiple factors to cause chronic fatigue. It was concluded that the chronic fatigue as claimed by the Veteran was multifactorial in etiology and was not a diagnosis of chronic fatigue syndrome. Id. It was opined that it was at least as likely as not that the Veteran's subjective chronic fatigue was a symptom of his service-connected disabilities, including Type II diabetes mellitus with bilateral lower extremity peripheral neuropathy, and bladder and prostate cancer. It was explained that the medical literature reports that two-thirds of complaints of chronic fatigue are likely related to medical or psychiatric diagnosis. Id. As this medical opinion is supported by the evidence of record and there is no probative evidence to the contrary, the Board finds that the third Wallin element is met, and service connection for chronic fatigue is warranted. Consequently, the Veteran is more fully compensated on a schedular basis for the severity of his disability caused by his service-connected bladder and prostate cancers, Type II diabetes mellitus, and bilateral lower extremity peripheral neuropathy. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leanne M. Innet, 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.