Citation Nr: 22015698 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-28 727 DATE: March 18, 2022 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymia, is denied. Entitlement to service connection for sleep disturbances and night sweats is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's claimed CFS, acquired psychiatric disorder and sleep disturbance and night sweats disabilities were not the result of an unexplained chronic multi symptom illness. 3. The evidence of record persuasively weighs against finding that the Veteran has had CFS at any time during or approximate to the pendency of the claim. 4. The evidence of record persuasively weighs against finding that the Veteran's acquired psychiatric disorder, to include dysthymia began during active service, or is otherwise related to an in-service injury or disease. 5. The evidence of record persuasively weighs against finding that the Veteran's sleep disturbance and night sweats began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for CFS are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for an acquired psychiatric disorder, to include dysthymia, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for sleep disturbance and night sweats are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1984 to April 1991 This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously before the Board in June 2019. The Board denied entitlement to service connection for both CFS and an acquired psychiatric disorder at that time and remanded the issue of entitlement to service connection for night sweats and sleep disturbances. Following the June 2019 denial, the Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated the Board's June 2019 decision denying the Veteran's claim for service connection for both CFS and an acquired psychiatric disorder and remanded the matter to the Board for further proceedings consistent with the JMPR. In September 2020, the Board, in turn, remanded the matter to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. These matters have now returned to the Board for further appellate action. SERVICE CONNECTION Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed below, thus are applicable in this case. Under 38 C.F.R. § 3.317, service connection may 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1) (2019). For purposes of 38 C.F.R. § 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. The Veteran has made various contentions regarding the cause of his ailments. In his November 2014 Notice of Disagreement (NOD) the Veteran claimed that his conditions were either caused by nerve gas exposure, shots that were given to all service members but not put in their official files, or a set of pills he was given which were taken away shortly thereafter. Undiagnosed Illness As reflected above, it has been determined that the Veteran had active military service in the Southwest Asia Theater of Operations. Accordingly, the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. Following the May 2020 JMPR and per the September 2020 Board remand instructions, the Veteran was afforded a VA examination in December 2020. The examiner reviewed the various symptoms from the claimed CFS, acquired psychiatric disorder and the sleep conditions but found that there was no undiagnosed illness, no diagnosable but medically unexplainable illness (chronic or otherwise), and no diagnosable chronic multi symptoms illness with a clear and specific diagnosis. As a result, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for the claimed CFS, acquired psychiatric disorder and sleep disturbance and night sweats disabilities cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. Service Connection - CFS The Board notes that a diagnosis of chronic fatigue syndrome requires the following: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (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: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38 C.F.R. § 4.88 (a). A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for any conditions related to chronic fatigue syndrome. A March 1991 report of medical examination reported that all of the Veteran's systems were normal. A March 1991 report of medical history indicated that the Veteran was in good health and did not report any fatigue. A February 1995 Desert Storm Screen reported that the Veteran had experienced fatigue for more than six months, though it was not incapacitating, which was defined as the inability to perform less than 50 percent compared to the past. In December 2012, the Veteran submitted a November 2012 letter from Dr. S.L., a doctor who expressed that he had been treating the Veteran since 1996. The doctor reported that, since 1996, the Veteran has had constant complaints of fatigue, achiness, sleep disturbance, and severe joint pain. The doctor stated that "[i]n addition to Chronic Fatigue Syndrome, [the Veteran] also suffers from irritable bowel syndrome, significant memory loss and depression. The Veteran was afforded a VA examination for chronic fatigue syndrome in October 2013. The Veteran reported that, since 1996, he has always felt fatigue and tiredness but does not take any medication. He reported being treated by a private doctor, Dr. S.L., who diagnosed him with chronic fatigue syndrome. The examiner reported that the Veteran does not have a diagnosis of chronic fatigue syndrome. According to the examiner, the Veteran does not require continuous medication for his condition and his daily activity level is not reduced to less than 50 percent of his pre-illness level by the condition. The examiner reported that the Veteran has the following signs and symptoms attributable to chronic fatigue syndrome: debilitating fatigue, generalized muscle aches or weakness, and migratory joint pains. Following the May 2020 JMPR, the Veteran was afforded a VA examination in December 2020. The examiner did not find that the Veteran met the criteria for a diagnosis of CFS. The examiner found that the Veteran's symptoms were found to wax and wane with no periods of incapacitation. The Veteran does not take medication to control his symptoms. The examiner noted that the Veteran worked full-time as a handyman. Based upon a conversation with the Veteran about his civilian life the examiner determined that it was most likely that the etiology of the pain is his work as a handyman and not his time in service. The preponderance of the evidence fails to establish a clinical diagnosis of chronic fatigue syndrome for VA purposes or a medically unexplained chronic multisymptom illness. The Board acknowledges that there is a diagnosis of chronic fatigue syndrome made by a private physician in November 2012. However, that diagnosis is not supported by a discussion of the criteria necessary for a diagnosis pursuant to 38 C.F.R. § 4.88 (a). Consequently, the Board gives more probative weight to the October 2013 and December 2020 VA examination reports. The October 2013 and December 2020 VA examiners reviewed the record, considered the Veteran's lay statements and symptomology, assessed such under the diagnostic criteria under 38 C.F.R. § 4.88 (a), but were unable to render a diagnosis of chronic fatigue syndrome for VA purposes. Accordingly, neither the lay nor medical evidence of record supports a current diagnosis of the claimed CFS disability. Hence, whereas here, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant appeal, the claim for a CFS disability must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for CFS is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Service Connection - Acquired Psychiatric Disorder The Veteran contends that he has dysthymia, claimed as depression, that is related to an in-service injury, event, or disease. 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, while the Veteran has dysthymia, the preponderance of the evidence is against finding that it began during active service, or that it is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for any mental disorders. A March 1991 report of medical examination reported that the Veteran's psychiatric system was normal. A March 1991 report of medical history documented the Veteran's negative response to having depression or nervous trouble of any sort. A February 1995 Desert Storm Screen reported that the Veteran served in Saudi Arabia from November 1990 to March 1991 in a mobile construction battalion. The Veteran reported having no contact with the enemy, though he indicated that he was within one mile of a scud missile attack. The Veteran reported that he did not experience insomnia, nightmares, flashbacks, or night sweat. In December 2012, the Veteran submitted a private neuropsychological evaluation that was completed in March 2010. The examiner reported that the Veteran denied experiencing depression or anxiety but admitted that he does not like being around others. The Veteran reported serving in the Navy from 1984 to 1991 as a heavy equipment mechanic. He reported that he was "exposed to a nearby scud missile." The examiner reported that that Veteran was experiencing emotional and cognitive problems secondary to his combat experience in the Gulf War. However, the examiner did not describe any of the Veteran's combat experiences. The Veteran was afforded a VA mental disorders examination in October 2013. The Veteran reported that he was a construction mechanic in the Navy from 1984 to 1991 with "no combat." According to the Veteran, he flew into airports to work on highways and buildings to provide support for the Marines during Desert Storm. The Veteran reported that he began feeling depressed in the late 1990s when he realized the cause of the chronic joint pain wasn't going away. However, he reported that he had not received treatment for depression. The Veteran has owned his own company since 2001 and reported that he worked 30 hours per week. The examiner diagnosed the Veteran with dysthymia and concluded that the Veteran's symptoms do not interfere with occupational and social functioning or require continuous medication. The examiner opined that the Veteran's dysthymia was less likely than not (less than 50 percent probability) caused by an in-service injury, event, or illness. As rationale, the examiner provided the following: Veteran had no complaints of depression in the service. He states he began feeling depressed in the late 1990's because of chronic aches and feeling like he had the flu. He is not on any psychiatric medication and he is not receiving psychiatric treatment. He complains of feeling depressed because he doesn't know if the pain in his shoulders or knees will go away. Per the September 2020 Board remand and in conjunction with the May 2020 JMPR, the Veteran was afforded a VA examination in December 2020. The examiner provided a diagnosis of depressive disorder. The examiner reviewed the Veteran's history and claims of the etiology of his acquired psychiatric disorder and concluded that the depression was at least as likely as not caused by the Veteran's chronic joint pain and less likely than not caused by his CFS as it was determined that he did not have a diagnosis of CFS. Under the circumstances of this case, the Board concludes that service connection is not warranted for an acquired psychiatric disorder disability as the preponderance of the evidence fails to show that the Veteran's diagnosis of dysthymia is related to an in-service injury, event, or disease. As previously described, a review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for any mental disorders. A March 1991 separation examination reported the Veteran's denial of having depression or nervous trouble of any sort. A February 1995 medical record reported that the Veteran did not experience insomnia, nightmares, flashbacks, or night sweat. The Board also affords great weight to the October 2013 and December 2020 VA examination reports, as the examiners reviewed the record, considered the Veteran's lay statements and symptomology, and diagnosed the Veteran with dysthymia. Notably, the October 2013 VA examiner opined that the Veteran's dysthymia was less likely than not caused by an in-service injury, event, or illness, as the Veteran began feeling depressed in the late 1990s as a result of chronic physical ailments. Additionally, the December 2020 VA examiner opined that the depression was at least as likely as not caused by the Veteran's chronic joint pain and less likely than not caused by his CFS as it was determined that he did not have a diagnosis of CFS. The Veteran is notably not service-connected for chronic joint pain or disabilities relating to chronic joint pain. The Board acknowledges that a March 2010 private neuropsychological evaluation reported that the Veteran experienced emotional problems secondary to his combat experience in the Gulf War. However, the Veteran reported that he did not engage in combat during his period of service. Furthermore, the evaluation report did not address the depression experienced by the Veteran in the 1990s due to physical ailments, as he described at the October 2013 examination. Consequently, the Board gives more probative weight to the October 2013 and December 2020 VA examination reports. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Sleep Disturbances and Night Sweats The Veteran contends that he has a disability manifested by sleep disturbance and night sweat due to undiagnosed illness as a result of his service in the Southwest Asia theater of operations during the Persian Gulf War. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for any conditions related to sleep disturbance or night sweat. A March 1991 report of medical examination did not report any sleeping problems. A March 1991 report of medical history documented the Veteran's negative response to whether he had experienced frequent trouble sleeping. A February 1995 Desert Storm Screen reported that the Veteran served in Saudi Arabia from November 1990 to March 1991 in a mobile construction battalion. The Veteran reported that he did not experience insomnia, nightmares, flashbacks, or night sweat. A March 2010 private neuropsychological evaluation reported that the Veteran experienced insomnia secondary to pain. A November 2012 letter from Dr. S.L., a doctor who expressed that he had been treating the Veteran since 1996, reported that the Veteran has had constant complaints of sleep disturbance since 1996. The Veteran was provided a VA examination for sleep apnea in August 2013. The examiner did not diagnose the Veteran with sleep apnea. The Veteran reported experiencing sleep disturbances as he had been snoring and experiencing occasional apneic periods, as witnessed by his wife. However, he denied any daytime somnolence or sleepiness. The Veteran reported that he underwent a previous sleep study but was not diagnosed with sleep apnea. The Veteran underwent a VA Gulf War General Medical Examination in October 2013. The Veteran reported that he would wake from sleep due to nightmares of war and start feeling anxiety and sweating. The examiner reported that the Veteran's subjective night sweats due to nightmares were a diagnosed illness with no etiology. However, a nexus opinion for this diagnosis was not provided. The Veteran underwent a VA examination in February 2020. The examiner opined that it was less likely than not that the Veteran's sleep disturbances with night sweats were caused or incurred by the claimed in-service event, injury or illness. The examiner noted that sweating was due to nightmares and the possible suggestion of mental health issues. As noted above, at the December 2020 VA examination related to the Veteran's acquired psychiatric disorder claim the Veteran reported six hours of broken sleep per night. He noted this was due to pain in his shoulders. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a sleep disturbance and night sweats disability is not warranted. The Board again notes that the Veteran's service treatment records are negative for complaints or treatments of a sleep disturbance and night sweats disability. Furthermore, the only medical opinions addressing the etiology of the claimed disabilities weigh against the claim. As noted above, the February 2020 VA examiner indicated that it was less likely than not that the Veteran's sleep disturbances with night sweats were caused or incurred by the claimed in-service event, injury or illness. The examiner noted that sweating was due to nightmares and the possible suggestion of mental health issues. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current sleep disturbance and night sweats disability and the Veteran's service and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed sleep disturbance and night sweats disability, does not demonstrate that the Veteran's sleep disturbance and night sweats disability is related to the Veteran's service. In sum, the Board finds that service connection for a sleep disturbance and night sweats disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). All Disabilities The Board notes that VA attempted clarifying VA opinions for the Veteran's claimed disabilities in 2021. The VA tried to contact the Veteran on November 23, 2021, but a message indicated that the number was either no longer in service or was disconnected. A letter was sent to the Veteran the next day seeking clarification. No response has been received. A second attempt to contact the Veteran via phone was made on December 15, 2021, again without success. The Veteran's representative submitted an informal hearing presentation (HP) on January 27, 2022 and indicated that the Veteran had not submitted any written statement seeking to withdrawal any issue on appeal. Given the failure of the Veteran to successfully schedule and attend the VA examinations the Board reminds the Veteran that the "duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. The Board notes the Veteran's contentions regarding the etiology of his claimed CFS, acquired psychiatric disorder and the sleep conditions to include as due to an undiagnosed illness. To the extent that the Veteran himself and his representative contend that a medical relationship exists between his claimed gallbladder removal and respiratory disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that CFS, acquired psychiatric disorder and the sleep conditions disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed CFS, acquired psychiatric disorder and the sleep conditions disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the October 2013 and December 2020 VA examiners provided detailed rationale in support of her opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for CFS, acquired psychiatric disorder and the sleep conditions disabilities. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.