Citation Nr: 22014348 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-35 076 DATE: March 12, 2022 ORDER Entitlement to chronic fatigue symptoms, secondary to service-connected type II diabetes mellitus with diabetic nephropathy, for substitution purposes, is granted. Entitlement to service connection for fibromyalgia, for substitution purposes, is granted. FINDINGS OF FACT 1. The approximate balance of the evidence of record shows that the Veteran's chronic fatigue symptoms are at least as likely as not due to his service-connected type II diabetes mellitus with diabetic nephropathy. 2. The approximate balance of the evidence of record shows that the Veteran served in Southwest Asia theater of operations after August 2, 1990, and was diagnosed with fibromyalgia that manifested with symptoms of widespread musculoskeletal pain, sleep disturbances, and headache present more than one-third of the time, but not constantly, with tender points, and which were refractory to therapy. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue symptoms as secondary to service-connected type II diabetes mellitus and diabetic nephropathy with chronic kidney disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1972 to June 1992. This included service in the Southwest Asia theater of operations. The Veteran passed away in February 2021. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for these claims. The Veteran was afforded a hearing before the undersigned Veteran's Law Judge in May 2017. A transcript of that hearing is of record. These issues were previously remanded by the Board in an April 2018 decision for additional development. A Supplemental Statement of the Case (SSOC) was issued in March 2020. These claims were dismissed by the Board in an April 2021 decision on account of the Veteran having died while the claims were still pending. In December 2021, the appellant's request for substitution was granted by the RO and the claims were re-instated at the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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' the so-called nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or was aggravated beyond its normal progression by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested 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, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to 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). Examples of MUCMIs include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317(a)(2)(B). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to chronic fatigue symptoms, secondary to service-connected type II diabetes mellitus, for substitution purposes, is granted. Prior to his death, the Veteran contended that he experienced fatigue symptoms that he believed were due to his period of service in Southwest Asia. He asserted that these symptoms were the result of his developing chronic fatigue syndrome. See May 2017 Hearing Transcript. The Veteran served in Saudi Arabia from January 1991 to July 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). A VA examination in July 2019 examined the Veteran's reported chronic fatigue symptoms. After taking the Veteran's history medical history and reviewing his claims folder, the examiner opined that the Veteran's symptoms were not consistent with VA's diagnostic criteria for a clinical diagnosis of chronic fatigue syndrome. See 38 C.F.R. § 4.88a (listing the diagnostic criteria for chronic fatigue syndrome). Instead, the examiner opined that the Veteran's fatigue could be attributed to a combination of his uncontrolled service-connected type II diabetes mellitus, his service-connected diabetic nephropathy with hypertension and kidney disease, his nonservice-connected coronary artery disease with chronic heart failure, and his nonservice-connected chronic anemia. After reviewing the evidence of record, the Board finds that the approximate balance of the evidence establishes that the Veteran has chronic fatigue symptoms, which do constitute a disability by causing functional impairment, that were proximately due to his service-connected type II diabetes mellitus and service-connected diabetic nephropathy. 38 C.F.R. § 3.310. In making these findings, the Board notes that the Veteran's lay statements establish that he experienced general fatigue symptoms for over 10 years which made it difficult for him to perform daily tasks and impacted his overall ability to function. The Board notes the Veteran was competent to report signs and symptoms that he himself experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His reports of fatigue are inherently subjective and readily capable of lay diagnosis. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the [l]ay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection' (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Now, the Board notes that the Veteran was not competent, by training or experience, to attribute his symptoms of fatigue to "chronic fatigue syndrome." To make such a diagnosis would require knowledge of internal pathologies that was outside of the Veteran's known areas of knowledge or experience as well as VA's specific diagnostic criteria. The record included no evidence that the Veteran had any knowledge, training or experience in those diagnostic criteria or in diagnosing disabilities. As such, the Board affords greater probative weight to the findings of the June 2019 VA examiner that the Veteran's reported symptoms did not meet the diagnostic criteria for chronic fatigue syndrome. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Nevertheless, even without a confirmed diagnosis, the Board finds the Veteran did have a disability which manifested itself with symptoms of chronic fatigue. His competent lay reports show that his chronic fatigue symptoms did impact his functional capacity, and as such, constituted a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."). Turning then to the question of the cause of the Veteran's chronic fatigue symptoms, the Board affords significant probative weight to the June 2019 VA examiner's opinion, which stated that the Veteran's symptoms were more likely due to a combination of service-connected and nonservice-connected disabilities. However, the examiner did not indicate which of these disabilities caused the greater portion of the chronic fatigue symptoms. Where it is not possible to distinguish the symptoms of a service-connected disability from nonservice-connected manifestations, all the manifestations will be considered part of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Considering this, the Board affords the Veteran the benefit of the doubt and finds that his chronic fatigue symptoms are approximately as likely as not proximately due to his service-connected diabetes and service-connected diabetic nephropathy with kidney disease. 38 C.F.R. § 3.102. As such, the Board concludes that the criteria for service connection are met for this claim. 38 C.F.R. § 3.310. 2. Entitlement to service connection for fibromyalgia, for substitution purposes, is granted. Prior to his death, the Veteran contended that he developed generalized muscle and joint pain, which were diagnosed as fibromyalgia in the months after his return from deployment to the Persian Gulf. As noted above, the Veteran served in Saudi Arabia from January 1991 to July 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). A VA examination from June 2019 shows the Veteran has a diagnosis of fibromyalgia that was originally diagnosed in 1995. See June 2019 VA examination (noting a review of the appellant's VA treatment records from 1995 and 1996). Thus, his fibromyalgia is considered chronic under the regulatory definition. Moreover, the fibromyalgia has manifested to a degree of 10 percent or more in the time since the Veteran's return from service in Southwest Asia. His fibromyalgia manifests with symptom of widespread musculoskeletal pain, sleep disturbances, and headache present more than one-third of the time, but not constantly, with tender points. These symptoms were refractory to therapy. See 38 C.F.R. § 4.71a, Diagnostic Code 5025 (listing the rating criteria for fibromyalgia). Based on these symptoms, the Veteran's fibromyalgia manifested with symptoms consistent with at least the 10 percent rating and lasted for a period longer than 6 months. As there is no affirmative evidence to the contrary, see 38 C.F.R. § 3.317(a)(7)(i)-(iii), the Veteran's fibromyalgia is considered a MUCMI and presumptive service connection is warranted. 38 C.F.R. § 3.317. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.