Citation Nr: 22017194 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-08 417 DATE: March 24, 2022 ORDER Service connection for persistent daytime hypersomnolence (claimed as fatigue) is granted. FINDING OF FACT The Veteran's persistent daytime hypersomnolence is proximately due to his service-connected sleep apnea. CONCLUSION OF LAW The criteria for service connection for persistent daytime hypersomnolence as secondary to service-connected sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to December 2006. The Veteran is a Persian Gulf veteran as he has qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). This appeal comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It is noted that the Veteran is in receipt of a statutory 100 percent rating and has been found to be permanently and totally disabled, effective September 2, 2014. In addition, he has been awarded special monthly compensation for loss of use of a creative organ. The Board observes that, along with the claim granted herein, the Veteran perfected his appeal for the claims of service connection for sleep disturbance and memory problems. See Form 9 (February 2018). During the pendency of the appeal, in a July 2018 Decision Review Officer (DRO) rating decision, service connection was granted for adjustment disorder with anxiety and depressed mood (claimed as sleep disturbances and memory problems). The agency of original jurisdiction (AOJ) assigned an initial 30 percent rating from January 4, 2012, and a 50 percent rating from July 21, 2015the award contemplates symptoms of sleep disturbance and memory loss. Therefore, there remains no controversy for the Board's consideration as to these matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Entitlement to service connection for fatigue. The Veteran contends that he has a disorder manifested by fatigue that is due to undiagnosed illness or medically unexplained chronic multi-system illness (MUCMI) stemming from his service in the Southwest Asia theater of operations during the Persian Gulf War. Alternatively, he argues that his fatigue is secondary to his service-connected disabilities, including his psychiatric disability and sleep apnea. See Hearing Transcript at 2, 7-9. (November 2021). The Board concludes that the Veteran has been shown to have persistent daytime hypersomnolence that is proximately due to his service-connected sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. In regard to compensation under 38 C.F.R. § 3.317 (undiagnosed illness or MUCMI), as explained below, the Board finds that the Veteran has neither an undiagnosed illness nor a MUCMI. 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). A claim for secondary service connection requires medical evidence that connects the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. Id. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (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, 2021. 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 multisymptom illness (MUCMI) such as chronic fatigue syndrome (CFS). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). A diagnosis of CFS requires: (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. § 4.88A. Turning to the evidence, the Board finds that the criteria for service connection on a secondary basis for persistent daytime hypersomnolence have been met. First, there is evidence of a current disability. Although the Veteran claimed service connection for fatigue, a November 2012 VA examiner determined that the Veteran's current symptoms related to fatigue represent persistent daytime hypersomnolence. See VA Examination (November 2012). Second, the record reflects that the Veteran is service-connected for sleep apnea. He is assigned a 50 percent rating effective February 4, 2010. Third, a November 2012 Chronic Fatigue Syndrome Examination report reflects the opinion that the Veteran's current symptoms of fatigue most likely represent persistent daytime hypersomnolence which is a residual symptom of his service-connected sleep apnea and is not an undiagnosed illness or due to Gulf War environmental exposures. The Veteran reported experiencing fatigue for the last one to two years of active service. He also stated that his primary problem was waking up feeling tired and difficulty getting out of bed. He indicated that after breakfast and coffee, he is fine for the rest of the day. Once a week, however, he gets tired during the afternoon and takes a 30 to 45 minute nap. He denied any other types of fatigue. Next, at a November 2012 VA sleep apnea examination, the Veteran reported difficulty falling asleep with his CPAP mask on and stated that the mask awakens him several times during night. He also reported waking up in the morning feeling very tired due to sleep difficulties. The examination report shows that persistent daytime somnolence was expressly attributed to obstructive sleep apnea. See VA Examination (November 2012). Notably, the record contains a statement from the Veteran in which he attributed his daytime sleepiness and excessive fatigue to his sleep apnea and service-connected sinus disorder. He described his in-service complaints of daily fatigue within the context of his sleep apnea. The Veteran stated that, around June 2006, he told an attending physician that for the past several months, he woke up tired, experienced daytime fatigue and hypersomnolence and became drowsy while driving. Further, his family told him that he snored a lot. Although the Veteran was scheduled to undergo a sleep study in November 2006, shortly prior to service separation, he was discharged in December 2006 and had to tend to personal matters. In October 2009, the Veteran underwent a sleep study at St. Mary's Hospital Sleep Disorders Lab and was diagnosed with obstructive sleep apnea and treated with a CPAP machine. See Correspondence (March 2010). The Board acknowledges that the Veteran believes he has chronic fatigue syndrome (CFS) due to his Gulf War service. See e.g. Veteran's Statement in Medical Treatment Record Non-Government Facility (September 2014). The Board has considered 38 C.F.R. § 3.317 which allows for presumptive service connection of qualifying chronic disability resulting from either an undiagnosed illness or a MUCMI. The regulations define a MUCMI as "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." In this case, the Veteran's symptoms were not found to meet the diagnostic criteria for CFS; furthermore, the pathophysiology and etiology of his reported symptoms were at least partially understood (e.g., obstructive sleep apnea) as per the VA examiners. Here, VA examination reports, dated in November 2012, utilizing the protocol for Gulf War General Medical Examination and Chronic Fatigue Syndrome show the Veteran was not found to have a diagnosis of CFS. In fact, it was determined that the Veteran does not meet the diagnostic criteria for CFS. He was found to have persistent daytime somnolence attributable to sleep apnea. It was noted that the Veteran's complaints of fatigue are not an undiagnosed illness or related to Persian Gulf environmental exposure. Moreover, the Board observes that VA treatment reports dated throughout the appeal period do not show a diagnosis of CFS. Additionally, private medical records from Dr. G.P. (initials used to protect privacy) indicate that the Veteran's complaints of fatigue and malaise were limited to the time period between service separation in December 2006 and the October 2009 private sleep study which confirmed he had sleep apnea. See Medical Treatment Records Non-Government Facility (August 2008) & (September 2014). While the Veteran believes he has CFS, and is competent to report symptoms, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and findings of the November 2012 VA examiners indicating the Veteran linking the Veteran's persistent daytime hypersomnolence to his service-connected sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the above, the Board, therefore, concludes that, a grant of service connection for persistent daytime hypersomnolence, as secondary to service-connected sleep apnea, is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection for persistent daytime hypersomnolence, as secondary to service-connected sleep apnea, claimed as fatigue, is granted. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.