Citation Nr: 21042737 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-37 194 DATE: July 13, 2021 ORDER Service connection for asthma is dismissed. Service connection for gastroesophageal reflux disorder (GERD) is dismissed. Service connection for chronic fatigue disorder is denied. REMANDED Service connection for irritable bowel syndrome (IBS), to include as due to Gulf War service and exposures therein, is remanded. FINDINGS OF FACT 1. During the pendency of the appeal and prior to this decision being issued, service connection for asthma was granted by the regional office in an October 2020 rating decision. 2. During the pendency of the appeal and prior to this decision being issued, service connection for GERD was granted by the regional office in an October 2020 rating decision. 3. An October 2009 medical treatment and a November 2019 VA examination indicate that the Veteran did not have a diagnosis of chronic fatigue syndrome. The remainder of the evidence of record is silent for a diagnosis of chronic fatigue syndrome. CONCLUSIONS OF LAW 1. Because the benefit sought on appeal has been granted, the appeal must be dismissed for lack of jurisdiction and because there remains no case or controversy as to this issue. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.1103 (2018). 2. Because the benefit sought on appeal has been granted, the appeal must be dismissed for lack of jurisdiction and because there remains no case or controversy as to this issue. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.1103 (2018). 3. The criteria for service connection for chronic fatigue disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to March 1992 with additional service in the Maryland National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 and a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016 a Board hearing was held before the undersigned; a transcript is associated with the record. 1. Service connection for asthma is dismissed. During the pendency of the appeal and prior to this decision being issued, service connection for asthma was granted by the RO in an October 2020 rating decision. Because this represents a full grant of the issue on appeal, there is no longer a case or controversy as to this matter and the appeal must be dismissed. 38 U.S.C. § 7105. 2. Service connection for GERD is dismissed. During the pendency of the appeal and prior to this decision being issued, service connection for GERD was granted by the RO in an October 2020 rating decision. Because this represents a full grant of the issue on appeal, there is no longer a case or controversy as to this matter and the appeal must be dismissed. 38 U.S.C. § 7105. 3. Service connection for chronic fatigue syndrome is denied. Legal Criteria Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). Factual Background An October 2009 VA treatment note indicates that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Veteran was afforded a November 2019 VA examination during which the conducting physician indicated that there were no findings, signs or symptoms to support a diagnosis of chronic fatigue syndrome. The remainder of the evidence is silent for a diagnosis of chronic fatigue syndrome. Analysis As stated above, the evidence of record is silent for a diagnosis of chronic fatigue syndrome. In the absence of proof of a present disability due to disease or injury, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). While the Veteran may believe that he has a diagnosis of chronic fatigue syndrome, he is not competent (medically qualified) to provide a diagnosis because, while he is competent to report the observable symptoms of this medical condition (such as fatigue, pain, lack of concentration, excess sleepiness, and malaise), the symptoms can be caused by a number of medical conditions and it is not possible to distinguish by lay observation alone which medical condition is the cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for chronic fatigue syndrome must be denied. REASONS FOR REMAND Service connection for irritable bowel syndrome (IBS), to include as due to Gulf War service and exposures therein, is remanded. In compliance with the March 2018 Board remand instructions, the Veteran was afforded a November 2019 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's diagnosed IBS was causally related to service. However, the physician failed to opine whether the Veteran's IBS might have been caused or aggravated by the use of NSAID medications for his service-connected disabilities. The Board finds that the physician did not comply with the March 2018 Board remand instructions which required the physician to opine on aggravation as well as causation. This issue is remanded to provide the Veteran with an adequate medical examination report and opinions. Where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board apologizes to the Veteran for an additional remand but finds it is in his best interest because the current evidence does not allow the Board to grant the claim. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for a VA examination to include a Persian Gulf Examination. Based on a review of the entire record, examination of the Veteran, and any tests or studies deemed necessary, the examiner should provide opinions that respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's IBS was CAUSED or AGGRAVATED by his use of NSAID medications for his service-connected disabilities (as reported by the Veteran during his August 2016 Board hearing). The opinion MUST address both cause AND aggravation. Aggravation in this context means the disability increased in severity beyond its natural progression. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.