Citation Nr: 21041556 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-14 359 DATE: July 9, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome, claimed as Gulf War syndrome, is denied. FINDING OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has an undiagnosed illness manifested by fatigue or a diagnosed illness with an unexplained etiology. 2. The preponderance of the evidence of record is against finding that the Veteran has had chronic fatigue syndrome at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness and/or exposure to environmental hazards in Southwest Asia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had two periods of active military service from September 1976 to March 1982 and from February 1988 to April 1993. He also had service in Southwest Asia from September 1990 to March 1991. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a January 2013 rating decision in which the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for chronic fatigue syndrome, claimed as undiagnosed Gulf War syndrome. The Board notes that the Veteran testified at a video Board hearing in September 2018 with a Veterans Law Judge other than the undersigned. A transcript of this hearing is of record. The Veterans Law Judge who conducted that hearing is no longer available to participate in the adjudication of the Veteran's appeal. In October 2020 and May 2021, the Veteran was given another opportunity to appear at a hearing before a Veterans Law Judge who would adjudicate his appeal. The Veteran did not respond to either notice; therefore, he is considered to have waived his right to testify before another Veterans Law Judge. The Board will proceed with the adjudication of the present appeal. 1. Entitlement to Service Connection to Chronic Fatigue Syndrome, Claimed as Gulf War Syndrome In May 2012, the Veteran filed a claim for entitlement to service connection for undiagnosed Gulf War syndrome with symptoms including fatigue, frequent headaches, joint pain, and trouble sleeping. He stated that he has had these symptoms since the Gulf War and contended that they are due to his service in Southwest Asia. In January 2013, the AOJ denied service connection for chronic fatigue syndrome. Throughout the period on appeal, however, the AOJ has granted service connection for headaches in May 2013, left and right knee strains in December 2019, degenerative joint disease of the left and right hips in July 2020, and sleep apnea in March 2021. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. A veteran of the Persian Gulf War may be entitled to service connection on a presumptive basis for objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms. 38 U.S.C. § 1117(a)(2)(B). An undiagnosed illness is one which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis, while a medically unexplained chronic multi-symptom illness must lack "conclusive pathophysiology or etiology." 38 C.F.R. § 3.317(a)(2)(ii). Chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome qualify per se as medically unexplained chronic multi-symptom illnesses. Atencio v. O'Rourke, 30 Vet. App. 74, 81 (2018). The disability must manifest either during active service in Southwest Asia during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2021. 38 C.F.R. § 3.317; Atencio, 30 Vet. App. at 80. Here, the Veteran had active service in Southwest Asia from September 1990 to March 1991. He is therefore considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The evidence does not, however, show objective indications of a qualifying chronic disability. The Veteran had two adequate Department of Veterans Affairs (VA) examinations for chronic fatigue syndrome in October 2012 and March 2021, as well as a Gulf War examination in October 2012. None of these examinations found evidence supporting either a diagnosis of chronic fatigue syndrome or the presence of an undiagnosed illness manifested by chronic fatigue. During the Veteran's October 2012 VA examinations, she noted headaches, chronic fatigue, and sleep disturbances. The examiner concluded that the Veteran's history is not suggestive of chronic fatigue syndrome, nor does he have an undiagnosed illness for which no etiology has been established. She rationalized that the Veteran's headaches are due to stress and that his insomnia is due to his right hip pain. Although a March 2020 VA examination was completed, the Board noted in the December 2020 Remand that the examiner did not sufficiently explain why the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. As such, little probative value is accorded to this examination. The examiner who performed the March 2021 VA examination found no evidence supporting a diagnosis of chronic fatigue syndrome or any objective indications of an undiagnosed illness manifested by chronic fatigue. While the Veteran endorsed headaches, sleep disturbances, joint pain, and generalized muscle aches, the examiner attributed these symptoms to the Veteran's other service-connected disabilities, including headaches/cephalgia, sleep apnea, and back, knee, and hip disabilities. Moreover, the examiner noted that the Veteran's recent diagnosis of sleep apnea can account for his fatigue and need for frequent naps. In other words, the symptoms endorsed by the Veteran are symptoms of his other service-connected disabilities instead of symptoms of chronic fatigue syndrome or an undiagnosed illness. In a June 2021 statement, the Veteran's representative contended that the March 2021 VA examination was inadequate under Stegall v. West, 11 Vet. App. 268, 271 (1998). He asserted that the March 2021 VA examiner did not substantially comply with the Board's December 2020 remand directives because she did not specifically discuss the etiology of the Veteran's undiagnosed pain and cramps of the triceps and biceps. The Board disagrees. The December 2020 remand directives instructed the examiner to consider certain symptoms, including "generalized muscle aches or weakness (of the bilateral calf muscles, hamstrings, triceps and biceps." While the examiner who rendered the March 2021 medical opinion did not mention the Veteran's tricep and bicep pain by name, she did discuss his migratory and generalized muscle aches and weakness in her opinion. Thus, the Board concludes that there was substantial compliance with the December 2020 remand directives, and another remand is not required. Stegall, 11 Vet. App. at 271. The Board notes the February 2013 private medical opinion from Dr. J.K. in which he noted that the Veteran appears to have a chronic multi-symptom disorder that was not present prior to the Gulf War. However, as the examiner who rendered the March 2021 opinion explained, Dr. J.K. did not review any of the Veteran's records or make a formal diagnosis. Therefore, Dr. J.K.'s medical opinion is purely speculative, and the Board consequently affords more probative value to the October 2012 and March 2021 VA examinations. Thus, the Board concludes that the Veteran does not have objective indications of a qualifying chronic disability. Service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. Nor does the Veteran meet the requirements for direct service connection under 38 C.F.R. § 3.303 or secondary service connection under 38 C.F.R. § 3.310 because he does not have a current diagnosis of chronic fatigue syndrome. As noted above, neither the October 2012 nor the March 2021 VA examiner found evidence supporting a diagnosis of chronic fatigue syndrome. Furthermore, the Board's review of the Veteran's private and VA treatment records reveals no diagnosis or treatment for chronic fatigue syndrome. Thus, 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). (Continued on the next page) The Board acknowledges the Veteran's competent and credible reports of fatigue, frequent headaches, joint pain, and trouble sleeping that began while he was in Southwest Asia. The Board recognizes that he reported being a certified EMT some years ago at his BVA hearing. However, the Veteran is not competent to provide a diagnosis in this case. Chronic fatigue syndrome is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran himself testified that he had "limited medical experience." Consequently, the Board gives more probative weight to the competent medical evidence. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.