Citation Nr: 21041778 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-13 409 DATE: July 10, 2021 ORDER Entitlement to service connection for cardiovascular disease (claimed as hypertension) is granted. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, hypertension had its onset within one year of separation from service. 2. The Veteran does not have a diagnosis of chronic fatigue syndrome, and his fatigue symptoms are not due to an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cardiovascular disease (claimed as hypertension) have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to June 1981 and from February 1982 to August 1995. In May 2021, the Veteran and his spouse testified at a virtual hearing before the undersigned. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War to a degree of 10 percent or more. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a 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). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). 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). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 3.317(b). For purposes of section 3.317, 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. 32.317(a)(4). 1. Entitlement to service connection for cardiovascular disease (claimed as hypertension) The Veteran has a current diagnosis of hypertension that he asserts began within one year of his separation from active duty. During the May 2021 virtual Board hearing, the Veteran testified that within three months of his August 1995 retirement he went to take a Department of Transportation (DOT) physical. At that time, he was told that his cholesterol and blood pressure were high, and they referred him to his primary care physician. The Veteran stated that his physician put him on blood pressure medication for a year and when he went back the second year to take his annual DOT physical, he was again informed that his blood pressure was really high. He testified that he returned to his treating physician and his blood pressure medication was adjusted to control and treat it. A review of the claims file shows that while there are no treatment records from 1995, the treatment records that are available note a long history of chronic hypertension that has been treated with medication. Given the current diagnosis of hypertension, clinical records showing a long history of hypertension, and the Veteran's testimony at the May 2021 Board hearing regarding onset within three months of his retirement from active duty, the Board finds that viewing the evidence in the light most favorable to the Veteran, service connection is warranted for his hypertension disability. 2. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness The Veteran contends that service connection is warranted for chronic fatigue syndrome. Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A review of the Veteran's service treatment records (STRs) shows no evidence of treatment for or a diagnosis of chronic fatigue syndrome. Post-service treatment records do not show a diagnosis of chronic fatigue syndrome. At the May 2021 virtual Board hearing, the Veteran reported feeling tired since service, but it wasn't until around 2003 that he was told that he had a lung issue that interrupted his sleep at night. The Veteran also acknowledged that he has not been diagnosed with chronic fatigue syndrome and that his physicians have told him that his fatigue is due to his sleep apnea and respiratory problems. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, while a lay person may be competent to report symptoms of fatigue, they are not competent to diagnose chronic fatigue syndrome. The diagnosis of chronic fatigue syndrome requires greater medical knowledge and testing to determine a diagnosis, which the Veteran has not shown he possesses. Accordingly, the Veteran is not competent to establish a diagnosis for his claimed chronic fatigue syndrome. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because the Veteran is a Persian Gulf Veteran, however, service connection may alternatively be established for a chronic disability resulting from an undiagnosed illness under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board notes that while the Veteran has reported symptoms of fatigue, it has not been confirmed as a chronic disability on physical examination. Furthermore, the Veteran has associated his fatigue with his service-connected interstitial lung disease disability and his non-service connected sleep apnea. Accordingly, as there are no objective indications of a qualifying chronic disability for which service connection may be granted, service connection for chronic fatigue syndrome cannot be granted under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The record does not demonstrate that the Veteran has been diagnosed with chronic fatigue syndrome. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for chronic fatigue syndrome must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for chronic fatigue syndrome, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.