Citation Nr: 21042368 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 13-11 727 DATE: July 12, 2021 ORDER Entitlement to service connection, to include on a secondary basis, for chronic fatigue syndrome is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for a respiratory disorder (claimed as emphysema, chronic obstructive pulmonary disorder (COPD), and recurrent pneumonia, to include as due to asbestos exposure, is remanded. Entitlement to service connection for restless leg syndrome, right leg, is remanded. Entitlement to service connection for restless leg syndrome, left leg, is remanded. Entitlement to a disability rating in excess of 10 percent for left eye retinal pigment epithelium mottling, para retinal telangiectasia prior to September 26, 2018 is remanded. Entitlement to a disability rating in excess of 30 percent for left eye retinal pigment epithelium mottling, para retinal telangiectasia from September 26, 2018 is remanded. FINDING OF FACT The evidence of record is insufficient to support a diagnosis of chronic fatigue syndrome, which could be attributed to active service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection, to include on a secondary basis, for chronic fatigue syndrome are not met. U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1972 to December 1981 and from September 1984 to November 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and March 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in March 2018. In a September 2019 rating decision, the RO assigned a 30 percent disability rating for left eye retinal pigment epithelium mottling, para retinal telangiectasia from September 26, 2018. As the rating periods regarding the Veteran's left eye disability prior to September 26, 2018 and from September 26, 2018 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The March 2018 Board decision also remanded the matters of service connection for right and left knee disorders for further development. In the September 2019 rating decision, the RO granted service connection for right and left knee patellofemoral syndrome with degenerative arthritis. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board's October 2018 remand directed the RO to obtain any outstanding VA and private treatment records and afford the Veteran VA examinations for his claimed bilateral restless leg syndrome, respiratory disorder, chronic fatigue syndrome, and his increased rating claim for left eye disability. The Board finds that there has been substantial compliance with its October 2018 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). 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. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, secondary service connection may be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or aggravated beyond its natural progression, by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A permanent worsening is not required, as secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Entitlement to service connection, to include on a secondary basis, for chronic fatigue syndrome The Veteran seeks service connection for chronic fatigue syndrome, which he contends is caused or aggravated by his service-connected coronary artery disease. Upon review of the relevant evidence, the Board finds that service connection for a disability manifested by chronic fatigue is not warranted. As the April 2011 VA heart examination noted that the Veteran's reports of chronic fatigue are due to his service-connected coronary artery disease and an August 2012 VA treatment record listed chronic fatigue syndrome under the Veteran's medical history, the Board remanded the matter in March 2018 to obtain a VA medical opinion clarifying whether the Veteran has a separate diagnosis of chronic fatigue syndrome or if his reported chronic fatigue is a symptom of his service-connected coronary artery disease. The October 2018 VA examiner found no pathology to render a diagnosis of chronic fatigue syndrome. The examiner addressed the numerous references in the Veteran's post-service treatment records of "chronic fatigue," stating that these references are not clinical references or evaluations for chronic fatigue syndrome. The examiner found that no separate diagnosis of chronic fatigue syndrome is warranted, as the Veteran's reported chronic fatigue is a symptom attributed to his service-connected coronary artery disease, as well as a symptom of his diabetes, COPD, obesity, sleep apnea, and restless leg syndrome. Here, the probative medical evidence of record shows that the Veteran's claimed chronic fatigue is merely a symptom of his service-connected coronary artery disease, as well as other non-service-connected disabilities, rather than a separate, diagnosed disability. Therefore, the Veteran has no current disability for which service connection may be granted. Where the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim of service connection for a disability manifested by chronic fatigue. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for a respiratory disorder (claimed as emphysema, COPD, and recurrent pneumonia, to include as due to asbestos exposure, is remanded. The Veteran asserts that his claimed respiratory disorder is caused or aggravated by his service-connected coronary artery disease. Pursuant to the Board's March 2018 remand, the Veteran underwent a VA respiratory examination in October 2018. The examiner diagnosed the Veteran with emphysema and COPD. While the examiner noted a 2009 episode of pneumonia, it is unclear from the VA examination report as to whether the Veteran continues to experience recurrent pneumonia past 2009. A remand is necessary to obtain clarification on this matter. Further, while the medical opinion provider addressed the causation component of secondary service connection as to the Veteran's emphysema and COPD, he did not offer an adequate opinion as to the aggravation component. On the contrary, the examiner's opinion as to aggravation was conclusory in nature and lacking adequate rationale. Secondary service connection is warranted for "any incremental increase in disability, any additional impairment of earning capacity, in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). A permanent worsening is not required. As the October 2018 VA opinion did not address whether the Veteran's service-connected coronary artery disease brought upon any incremental increase in disability or any additional impairment of earning capacity as to the Veteran's diagnosed emphysema and COPD, the Board finds the October 2018 opinion to be inadequate. On remand, an addendum opinion should be obtained with complete rationale as to whether the Veteran's COPD and emphysema is caused or aggravated by his service-connected coronary artery disease. 2. Entitlement to service connection for restless leg syndrome, right leg, is remanded. 3. Entitlement to service connection for restless leg syndrome, left leg, is remanded. Pursuant to the Board's March 2018 remand, the Veteran was afforded a VA examination for his claimed restless leg syndrome, right leg and left leg, in October 2018. The Veteran reported that his restless leg syndrome began during cold weather training exercises in England during the 1980s. The examiner provided a negative nexus medical opinion as to direct service connection, stating that "there are no confirmed supporting literature that shows a link between cold weather exposure and restless leg syndrome." However, in the Veteran's May 2021 Appellate Brief, his representative cites to two medical articles in his support of his claim that address the relationship between prolonged exposure to the cold and factors that may trigger or worsen restless leg syndrome. Therefore, the Board finds that a remand is necessary so that a VA medical opinion may be obtained after a review of these newly associated medical articles by Mount Sinai Health and the Sleep Disorder Services Clinic of New York to clarify whether the Veteran's bilateral restless leg syndrome was caused by exposure to cold weather during active service. 4. Entitlement to a disability rating in excess of 10 percent for left eye retinal pigment epithelium mottling, para retinal telangiectasia prior to September 26, 2018 is remanded. 5. Entitlement to a disability rating in excess of 30 percent for left eye retinal pigment epithelium mottling, para retinal telangiectasia from September 26, 2018 is remanded. The Veteran underwent VA eye examinations in September 2009 and September 2018. Under the regulations in effect prior to May 13, 2018, which are applicable in this case, the results of visual field testing must be recorded on a standard Goldmann chart and the chart must be included with the examination report. See 38 C.F.R. § 4.77. The Veteran's disability is manifested by visual field impairment; therefore, the results of any visual field testing are vital in adjudicating his claim for an increased rating. As the Veteran's claims file does not contain the Goldmann visual field chart from his September 2009 VA examination, a remand is necessary to obtain this chart. The September 2018 VA also diagnosed the Veteran with bilateral dermatochalasis and bilateral cataracts, which she indicated causes a decrease in the Veteran's visual acuity and a visual field defect. The examiner did not offer an opinion as to whether the Veteran's bilateral dermatochalasis and bilateral cataracts are symptoms of the Veteran's service-connected left eye retinal pigment epithelium mottling or are separate diagnoses that may be proximately due or aggravated beyond normal progression by the Veteran's service-connected left eye retinal pigman epithelium mottling. As such, a remand is warranted to obtain an addendum VA medical opinion. The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Obtain the Goldmann visual field chart from the September 2009 VA examination and associate it with the Veteran's claims file. 3. Thereafter, return the claims file to the examiner who performed the October 2018 VA respiratory examination, if available, otherwise, to an appropriate medical professional, to obtain an addendum opinion regarding the etiology of the Veteran's diagnosed COPD and emphysema, as well as clarification as to whether the Veteran continues to experience recurrent pneumonia. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinions expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: a. Does the Veteran have a current diagnosis of recurrent pneumonia? If so, is it at least as likely as not that the Veteran's pneumonia had its onset in service or is otherwise directly related to service? b. If not, is the Veteran's recurrent pneumonia at least as likely as not proximately due to or caused by his service-connected coronary artery disease? c. If not, has the Veteran's recurrent pneumonia undergone any incremental increase in disability, regardless of its permanence, due to his service-connected coronary artery disease? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. d. Is the Veteran's COPD and/or emphysema at least as likely as not proximately due to or caused by his service-connected coronary artery disease? e. If not, has the Veteran's COPD and/or emphysema undergone any incremental increase in disability, regardless of its permanence, due to his service-connected coronary artery disease? If the requested opinions cannot be provided without a new examination, one should be scheduled. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 4. Return the claims file to the examiner who performed the October 2018 VA central nervous system examination, if available, otherwise to an appropriate medical professional, to obtain an addendum opinion regarding the etiology of the Veteran's bilateral restless leg syndrome. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: Is it at least as likely as not that the Veteran's restless leg syndrome, right leg and/or left leg, had its onset in service or is otherwise directly related to service? In rendering the requested opinion, the medical opinion provider should address the two medical articles by Mount Sinai Health and the Sleep Disorder Services Clinic of New York cited to by the Veteran's representative in the May 2021 Appellate Brief regarding the relationship between cold weather exposure and restless leg syndrome. If the requested opinion cannot be provided without a new examination, one should be scheduled. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 5. Return the claims file to the optometrist who performed the September 2018 VA eye examination, if available, otherwise, to an appropriate medical professional, to obtain an addendum opinion regarding the etiology of the Veteran's diagnosed bilateral dermatochalasis and bilateral cataracts. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the VA medical opinion provider is then requested to respond to the following: a. Are any of the diagnoses made during the September 2018 VA examination, to include bilateral dermatochalasis and bilateral cataracts, symptoms that are attributed to the Veteran's service-connected left eye retinal pigment epithelium mottling? b. If not, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral dermatochalasis and bilateral cataracts are proximately due to or caused by the Veteran's service-connected left eye retinal pigment epithelium mottling? c. If not, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral dermatochalasis and bilateral cataracts underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service left eye retinal pigment epithelium mottling? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. If the requested opinions cannot be provided without a new examination, one should be scheduled. 6. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.