Citation Nr: 21042782 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-58 253 DATE: July 13, 2021 ORDER Entitlement to service connection for Chronic Fatigue Syndrome (CFS) is denied. FINDING OF FACT 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 entitlement to service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to November 1993, with service in the Persian Gulf in support of Operation Desert Storm. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2020 and it was remanded for further development. Additional claims were part of the January 2020 Board decision; the claims for service connection back disability, left knee disability, and tinnitus were reopened. The claims for service connection for left knee disability and tinnitus were granted. The claim for tinea pedis, headaches, right knee disability, and low back disability were remanded. While on remand, the RO granted entitlement to service connection for low back disability, headaches, tinea pedis, and right knee disability. As the RO granted the Veteran's claims for service connection for these disabilities, the appeals for the back, headaches, tinea pedis, and right knee disability are considered satisfied. Additionally, the Board finds the remand directives for the claim for chronic fatigue syndrome (namely obtaining an adequate VA examination and opinion) are satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for Chronic Fatigue Syndrome (CFS) is denied. Service connection may be granted for 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). Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to an undiagnosed illness or medically unexplained chronic multisymptom illness, provided that certain requirements are met. A medically unexplained chronic multisymptom illness is defined by a cluster of signs or symptoms, and includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. Because the Veteran had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317 (e); 38 C.F.R. § 3.2 (i) (providing that the Persian Gulf War began on August 2, 1990 and will continue until the date prescribed by Presidential proclamation or law). Compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI) to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability: (i) became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability for purposes of 38 C.F.R. § 3.317 means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2)(i). The term 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. 38 C.F.R. § 3.317 (a)(2)(ii). For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) a new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state); (viii) migratory joint paints; (ix) neuropsychological symptoms; (x) sleep disturbance. 38 C.F.R. § 4.88a. The Veteran contends that he has chronic fatigue syndrome as a result of exposure to contaminants during service in Southwest Asia. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 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. The January 2020 Board remand found the September 2014 Gulf War VA examination to contain contradictory findings and was inadequate. The Veteran underwent a VA examination in November 2020 for Chronic Fatigue Syndrome. The VA examiner reported the Veteran does not have a diagnosis of chronic fatigue syndrome. The Veteran reported that in 1993, he started feeling episodes of fatigue. He reported his fatigue reduces his stamina by 30 to 40 percent. The Veteran reported the fatigue came on slow, he is not aware of any low-grade fever or sore throats. He reported he has generalized muscle aches in the neck, shoulders, arms, trunk, and lower back. He reported fatigue that lasts for days after he exercises. The Veteran also reported headaches and joint pain in shoulders, neck, back, and knees. The VA examiner noted continuous medication is not required. The VA examiner did note the Veteran has symptoms related to chronic fatigue syndrome, such as generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, migratory joint pain, neuropsychological symptoms, and sleep disturbance. The VA examiner reported the symptoms reported by the Veteran are nearly constant and they do restrict his routine daily activities up to 50 to 75 percent of the pre-illness level. However, the VA examiner concluded the Veteran's symptoms do not meet the criteria for chronic fatigue syndrome. The VA examiner reported that in medical literature, chronic fatigue syndrome does not lead to joint pathology that the Veteran has reported in his right knee. The VA examiner further stated the Veteran does not meet the criteria for a diagnosis of chronic fatigue syndrome. The VA examiner noted the Veteran does have a diagnosis of PTSD, which can present as fatigue. The VA examiner also noted the Veteran is diagnosed with chronic cervicalgia, a back disability, and snoring. The VA examiner explained those disabilities can all lead to fatigue, in addition to PTSD. Therefore the Veteran does not have an undiagnosed illness or MUCMI, rather the VA examiner stated the Veteran's symptomatology is consistent with his medically documented disabilities he is already service connected for, specifically his PTSD, neck, and back disability, as referenced by the VA examiner. The opinion and examination are adequate, as they conducted all necessary testing and examinations and provided a fully reasoned rationale. The Board also finds the opinion probative, as it directly addressed the issues as remanded by the Board. The Veteran's service treatment records are silent as to complaints of fatigue or related symptoms. The Veteran's VA treatment records document reflect reports from the Veteran stating no fatigue present in March 2014. The VA treatment records additionally document reports of low energy and fatigue associated with his depressive disorder in April 2014. The Veteran's 2019 VA treatment records reflect symptoms of snoring, fatigue, and daytime somnolence with a request for a sleep study. The Veteran's mother provided a buddy statement where she documented the Veteran's sleep issues. She reported he is awake at night, will sleep on the floor or near the front door. The Board acknowledges that the Veteran's reports of fatigue since 1993 is credible, as he is competent to report his own fatigue. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, neither the Veteran or his mother are not shown to have the requisite training and experience to render a clinical diagnosis of chronic fatigue syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As is discussed by the November 2020 VA examiner, the symptom of fatigue can be readily accounted for as part of other diagnosed (and currently service-connected) disabilities. Consequently, the Board gives more probative weight to the competent medical evidence. Absent a valid diagnosis of chronic fatigue syndrome, service connection cannot be granted for the disability. In addition, absent symptoms of chronic fatigue syndrome that do not overlap with and are not compensated under the evaluation provided for the service-connected PTSD, headaches, back disability, right knee disability, left knee meniscal tear, tinnitus, or tinea pedia, such symptoms cannot be separately service-connected and compensated under another disorder on either a direct or secondary basis. See 38 C.F.R. § 4.14. It is noted that the symptoms identified as unique to the chronic fatigue syndrome by the Veteran are contemplated in evaluations afforded to the Veteran's current service-connected disabilities noted above. Because the Veteran's fatigue is not a sign or symptom of an undiagnosed illness or MUCMI such as chronic fatigue syndrome, it does not constitute a qualifying chronic disability eligible for service connection under the provisions of 38 C.F.R. § 3.317 based on the Veteran's Persian Gulf service. Therefore, the preponderance of the evidence is against the Veteran's claim for service connection for chronic fatigue syndrome. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Accordingly, service connection for chronic fatigue syndrome is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.