Citation Nr: 22017522 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 12-27 337 DATE: March 25, 2022 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is granted. REMANDED Entitlement to a disability rating in excess of 40 percent for post-concussion syndrome with insomnia disorder (hereinafter referred to as a traumatic brain injury (TBI)) from October 23, 2008 to October 2, 2017, and a rating in excess of 50 percent thereafter, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT There is an approximate balance of negative and positive evidence as to whether the Veteran's service-connected disabilities caused and aggravated his CFS. CONCLUSION OF LAW Entitlement to service connection for CFS is granted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army on active duty from November 1984 to October 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Veterans Benefits Administration (VBA). The Board remanded these matters in February 2015, February 2019, and July 2021 to obtain outstanding relevant records and adequate VA examinations for the Veteran's claims. During the period on appeal, VBA increased the disability rating for the Veteran's TBI and residuals thereof from 40 percent to 50 percent effective October 2, 2017. See March 2018 rating decision. VBA recharacterized the disability to account for a sleep disorder, insomnia, associated with the TBI for rating purposes. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). VBA also granted the Veteran service connection for headaches and seizures secondary to the Veteran's service-connected TBI. See January 2022 rating decision. However, the Veteran has not filed a notice of disagreement with the ratings for headaches and seizures to date. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by a service-connected disability. "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). As noted in the Board's prior remand orders, the record contains several diagnoses by medical professionals that could account for his symptoms of fatigue including chronic fatigue syndrome. See, e.g., December 2005 progress notes from A.G., DO. The Board remanded this matter several times to attempt to obtain clarification as to whether the chronic fatigue syndrome was the correct diagnosis and the extent to which the Veteran experienced CFS during the period on appeal. The VA examiners expressed some disagreement with the CFS diagnosis and indicated the Veteran's fatigue was attributable to several conditions including low testosterone. See, e.g., December 2019 VA CFS examination;September 2015 VA CFS examination. However, the Board finds the opinions do not directly address and adequately discount the prior diagnoses of chronic fatigue syndrome, and the examiners have not been able to separate out the extent to which the Veteran's fatigue is a product of CFS vs. his other service-connected disabilities. While the December 2019 VA CFS examiner could not concede a CFS diagnosis without additional information including the workup pertaining to the diagnosis, the examiner indicated that the Veteran's service-connected disabilities (e.g. his neck and back joint disabilities) may aggravate CFS. See also, November 2011 treatment records from R.M., MD (indicating the Veteran's service-connected seizures contribute to chronic fatigue). The Board ultimately finds there is an approximate balance of negative and positive evidence as to whether the Veteran's service-connected disabilities caused and aggravated his CFS. Accordingly, the Board grants the Veteran entitlement to service connection for CFS. REASONS FOR REMAND In a March 2022 Written Brief Presentation, the Veteran's representative identified several concerns about the VA examinations VBA obtained following the Veteran's remand orders. The representative cited additional medical literature in support of his argument that the Veteran's service-connected TBI and residuals thereof have caused and aggravated the Veteran's obstructive sleep apnea. In its prior remand orders, the Board stressed the need for VA examinations to consider all treatise evidence received into the record. Therefore, an addendum opinion is necessary to address the additional medical literature cited by the Veteran's representative. Additionally, the Veteran's representative notes in the brief that the September 2020 VA TBI examiner's finding that the Veteran is always oriented to person, time, place, and situation is inconsistent with VA's finding and supporting evidence that he experiences a service-connected seizure disorder. The representative asserts the VA examiner did not adequately discuss the Veteran's statements about symptoms consistent with restless leg syndrome, which the Veteran attributes to his service-connected TBI. The representative also noted that while the September 2015 VA sleep apnea examiner indicated the Veteran's obesity contributed to his sleep apnea, the examiner did not opine on the extent to which the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity, to include as a result of limitations on the Veteran's ability to exercise from his service-connected TBI and orthopedic disabilities. See Garner v. Tran, 33 Vet. App. 241 (2021). On remand, VBA should obtain additional medical opinions addressing these concerns. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VBA should obtain additional examinations of the severity of the Veteran's TBI residuals and the etiology of his sleep apnea. VBA should provide each examiner with a complete copy of the claims file, to include this remand order. VBA should ensure the examiners' opinions address the following concerns: (a.) The VA TBI and sleep apnea examiners should identify all disabilities and diagnoses in the record associated with the Veteran's claims, to include restless leg syndrome and obstructive sleep apnea. If an examiner disagrees with prior diagnoses in the record, the examiner should state the basis for disagreement with citation to supporting evidence. (b.) In assessing the severity of the Veteran's TBI, the VA examiners should consider that (1) VA has found the Veteran has a seizure disorder associated with his service-connected TBI and (2) the Veteran's representative contends the disorder caused significant disorientation to person, time, place, and situation. See March 2022 Written Brief Presentation. (c.) Regarding the Veteran's sleep apnea and other disabilities claimed as secondary to the TBI in association with the Veteran's appeal (e.g. restless leg syndrome), the examiners should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's disability manifested during or was otherwise caused by the Veteran's military service. The examiners should consider the Veteran's statements and third-party statements in the records about the continuity of relevant symptoms over time. The examiners should consider supporting medical treatise evidence in the record including those cited by the Veteran's representatives in the written brief presentations. See, e.g., March 2022 Written Brief Presentation; November 2018 Written Brief Presentation. (d.) Regarding the Veteran's sleep disorders and any disabilities claimed as secondary to the TBI in association with the Veteran's appeal (e.g. restless leg syndrome), the examiners should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that they were caused or aggravated by the Veteran's service connected disabilities. Temporary aggravation may suffice for secondary service connection. Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiners should consider the Veteran's statements and third-party statements in the records about the continuity of relevant symptoms over time. The examiners should consider supporting medical treatise evidence in the record including those cited by the Veteran's representatives in the written brief presentations. See, e.g., March 2022 Written Brief Presentation; November 2018 Written Brief Presentation. The examiners should consider the effects that the Veteran's medications and other treatment for service-connected disabilities may have on his disabilities as well. (e.) The examiners should also opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's obesity was caused or aggravated by the Veteran's service-connected disabilities. For example, the examiners should address the contention of the Veteran's representative that the Veteran's physical limitations due to his TBI residuals have aggravated his obesity. See, e.g., March 2022 Written Brief Presentation; Garner v. Tran, 33 Vet. App. 241 (2021). Temporary aggravation may suffice for secondary service connection. Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiners should consider supporting medical treatise evidence in the record including those cited by the Veteran's representatives in the written brief presentations. See, e.g., March 2022 Written Brief Presentation; November 2018 Written Brief Presentation. The examiners should consider the effects that the Veteran's medications and other treatment for service-connected disabilities may have on his disabilities as well. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.