Citation Nr: 21041655 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-28 610A DATE: July 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder, is denied. Entitlement to service connection for chronic fatigue disorder, to include as secondary to an acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of an acquired psychiatric disorder other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder. 2. The preponderance of the evidence is against finding the Veteran has had a diagnosis of chronic fatigue syndrome at any time during the appeal period. 3. The preponderance of the evidence is against finding that the Veteran has an undiagnosed illness manifested by fatigue or a diagnosed illness with an unexplained etiology. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than an unspecified trauma and stressor-related disorder, are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for chronic fatigue syndrome, to include as related to Gulf War syndrome, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 2007 to May 2008, including service in Iraq and prior service in the reserves, with inactive duty for training from January 10, 2005, to June 15, 2005. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In January 2018, a video hearing was held before the undersigned. A transcript of that hearing is of record. This claim was previously before the Board in April 2020, at which time it was remanded for further development. The Board notes that the issue on appeal was characterized as entitlement to service connection for posttraumatic stress disorder (PTSD). However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). SERVICE CONNECTION Service connection may be granted for a 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 (a). Service connection is granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Entitlement to service connection for an acquired psychiatric disorder other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder Service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304 (f) (2016). 38 C.F.R. § 4.125 currently requires a diagnosis of PTSD using the criteria in the 5th edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). When the claimed PTSD stressor is physical or sexual assault in service, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from other sources may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA will submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault has occurred. 38 C.F.R. § 3.304 (f)(4). Additionally, a medical opinion may be used to corroborate a personal-assault stressor. Menegassi v. Shinseki, 683 F.3d 1379 (Fed. Cir. 2011). Entitlement to service connection for an acquired psychiatric disorder, other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder, must be denied. The Veteran received a VA PTSD examination in May 2020 and the examiner concluded that the Veteran did not have a diagnosis of PTSD that conformed to DSM-V criteria. Rather, the Veteran was diagnosed with an unspecified trauma and stressor-related disorder. In previous examinations, the Veteran had been diagnosed with insomnia and an alcohol use disorder, for which he had been previously rated. The examiner noted the Veteran reported being fired on and there were not many times on the road where he did not hear artillery fire, and found that the stressor was adequate to support a diagnosis of PTSD and was related to his fear of hostile military or terrorist activity. However, while the examiner indicated that the experienced trauma in service, he described trauma related symptoms that did not fit the full criteria for PTSD. The Veteran received a new VA PTSD examination in March 2021 and the examiner again concluded that the Veteran did not have a diagnosis of PTSD that conformed to DSM-V criteria. His symptoms did not meet the diagnostic criteria for PTSD, and he continued to have a diagnosis of an unspecified trauma and stressor-related disorder. The Board finds the May 2020 and March 2021 VA examinations highly probative and concludes that there is no current acquired psychiatric disorder, other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for acquired psychiatric disorder, other than an unspecified trauma and stressor-related disorder or the previously diagnosed and rated insomnia disorder with alcohol use disorder, is not warranted. Entitlement to service connection for chronic fatigue disorder, to include as secondary to an acquired psychiatric disorder Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War. Among the requirements are that there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest during either active service in the Southwest Asia theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2016. 38 C.F.R. § 3.317 (a)(i). By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (Aug. 3, 1998) (cited at 63 Fed. Reg. 56,703 (Oct. 22, 1998)). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of 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. 38 C.F.R. § 3.317 (a)(3). For purposes of this section, 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. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). To qualify for compensation under above-indicated provisions, "Persian Gulf Veteran" is defined as "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 (d)(1). "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. 38 C.F.R. § 3.317 (d)(2). Compensation shall not be paid under this section 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). During service, the Veteran indicated that he had frequent trouble sleeping, as his sleep schedule had reversed from normal working hours due to working the graveyard shift. On a March 2008 Report of Medical Assessment, the Veteran indicated that he experienced sleeplessness but did not seek treatment. The Veteran received a VA General Medical Examination in February 2009 and stated that he had chronic fatigue due to sleeplessness that was related to his military service. The examiner found that the Veteran had a serious sleep disorder, not respiratory in nature, and concluded that it was due to PTSD. At the January 2018 Board hearing, the Veteran's representative asserted that the Veteran complained about sleeplessness and fatigue in service. Despite not having a diagnosis, he exhibited symptoms during service, and they persisted following separation. The Veteran testified that he worked the graveyard shift during service, which usually was from midnight until 11am. Upon separation, the Veteran would not sleep full hours and awaken and not feel rested. Pursuant to the April 2020 Board remand, the Veteran received a VA Chronic Fatigue Syndrome examination in May 2020 and the examiner found that he did not have a diagnosis of chronic fatigue syndrome. The Veteran stated that he averaged three to four hours of sleep per night, and his sleeping pattern changed following returning from service in 2008. The examiner found that the Veteran did not fit the diagnostic criteria for chronic fatigue syndrome. Rather his symptoms were more suggestive of insomnia, for which service connection was granted in February 2020. (Continued on the next page) 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). Moreover, his complaint of chronic fatigue has been identified as a symptom of his service-connected insomnia and not an undiagnosed illness. While the Veteran believes he has a current diagnosis of chronic fatigue syndrome, he is not competent to provide a diagnosis in this case. The issue 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, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and finds that service connection for chronic fatigue syndrome is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.