Citation Nr: 23033294 Decision Date: 06/12/23 Archive Date: 06/12/23 DOCKET NO. 19-09 167 DATE: June 12, 2023 ORDER Entitlement to service connection for unspecified anxiety disorder with depressive features with ADHD claimed as chronic psychiatric disorder including manic depressive disorder, ADHD, chronic fatigue, sleep disorder, temper problems and memory loss is dismissed. Entitlement to service connection for chronic fatigue syndrome (CFS), including secondary to a chronic psychiatric disorder including manic depressive disorder, adult attention deficit disorder with chronic fatigue sleep disorder, temper problems and memory loss, is denied. FINDINGS OF FACT 1. A February 2023 rating decision granted the Veteran's claim for service connection for unspecified anxiety disorder with depressive features with ADHD claimed as chronic psychiatric disorder including manic depressive disorder ADHD with chronic fatigue sleep disorder temper problems and memory loss. 2. 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. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for unspecified anxiety disorder with depressive features with ADHD claimed as chronic psychiatric disorder including manic depressive disorder ADHD with chronic fatigue sleep disorder temper problems and memory loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for CFS, including secondary to a chronic psychiatric disorder including manic depressive disorder, adult attention deficit disorder with chronic fatigue sleep disorder, temper problems and memory loss, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.88a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1989 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2022, the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for unspecified anxiety disorder with depressive features with ADHD claimed as chronic psychiatric disorder including manic depressive disorder ADHD with chronic fatigue sleep disorder temper problems and memory loss Pursuant to applicable law and regulation, the Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law which affects the provision of benefits by the Secretary to veterans, their dependents, or survivors. 38 U.S.C. § 511(a). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). Following the Board's May 2022 remand the appeal for entitlement to service connection for service connection for unspecified anxiety disorder with depressive features with ADHD claimed as chronic psychiatric disorder including manic depressive disorder ADHD with chronic fatigue sleep disorder temper problems and memory loss was granted by the Regional Office in February 2023. The February 2023 rating decision granted in full the benefit sought on appeal, and there is no longer any issue regarding an error of fact or law before the Board as to the issue of entitlement to service connection for unspecified anxiety disorder with depressive features with ADHD, and the Board finds that the appeal of that issue should be dismissed. See 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. § 20.101. SERVICE CONNECTION Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that the reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for CFS, including secondary to a chronic psychiatric disorder including manic depressive disorder, adult attention deficit disorder with chronic fatigue sleep disorder, temper problems and memory loss The Veteran seeks entitlement to service connection for chronic fatigue syndrome. The Veteran contends that he has difficulty sleeping and is always tired. The question for the Board is whether the Veteran has a current disability that began during service or that at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) is 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For VA purposes, a diagnosis of chronic fatigue syndrome requires: (1) 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 pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a. Summary of Relevant Evidence The Veteran's service treatment records do not reflect, complaints, treatment, or diagnosis of chronic fatigue syndrome (CFS). In a June 2003 private treatment record the Veteran complained about fatigue. In a June 2003 psychiatric treatment note, the Veteran stated that the medications did not help with his fatigue and lack of motivation. In an August 2003 mental health treatment note the Veteran reported he started to see Dr. L. 4-5 months ago because he had symptoms of fatigue, insomnia, low motivation, and increased angry outbursts. The Veteran also reported two years ago he was prescribed Fluoxetine for 6 months by PCP due to symptoms of fatigue. In a June 2004 treatment record the examiner indicated that the Veteran's excessive sleepiness is more mental in origin. The diagnosis was mild chronic fatigue of unexplained etiology at this time. Some laboratory tests are abnormal, namely high cholesterol and triglycerides and they don't explain the fatigue. Rest of the tests were normal. In April 2014, the Veteran was afforded a VA examination for chronic fatigue syndrome (CFS). The examiner noted that the Veteran had sleep disturbances that are attributed to chronic fatigue syndrome. The Veteran has cognitive impairments that could be attributed to chronic fatigue syndrome including poor attention, inability to concentrate, and forgetfulness (that wax and wane). The Veteran's condition does not manifest as incapacitating episodes. The Veteran's symptoms due to chronic fatigue syndrome restrict routine daily activities by less than 25 percent of the pre-illness level. The examiner concluded that the Veteran does not have a diagnosis of CFS, as there is no pathology to render a diagnosis. In a March 2017 buddy statement, the Veteran's father indicated that the Veteran always seems fatigued and quite often mentions that. In December 2017, the Veteran was afforded a gulf war medical examination. The examiner opined that, There is no evidence for an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. All the Veteran's conditions evaluated by the undersigned on 12/12/2017 are consistent with a disease with a clear and specific etiology and diagnosis. If there is no pathology or diagnosis found of any claimed condition, this does not imply that there is a condition that is undiagnosed; this is a statement that no condition exists to be diagnosed. After examining the Veteran and reviewing the C-file, the Veteran's disability pattern represents a disease with a clear and specific etiology and diagnosis. The Veteran's conditions evaluated by the undersigned on 12/12/2017 are less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. There is no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed condition(s) and the Veteran's environmental exposure event. The examiner indicated that the Veteran has never been diagnosed with CFS. The Veteran reported that he initially saw a doctor in Kirkland privately. That psychiatrist gave him some samples to treat the fatigue - he said it was similar to the medicine they prescribe to military pilots to keep them awake and alert on long missions. But that was maybe 12 years ago. The Veteran stated he then received treatment through VA, and he told them about his chronic fatigue. The doctors talked about needing to have a good diet, getting proper rest - but that there is nothing that can really 'fix' [his] fatigue." The Veteran reported his current symptoms include, being tired every day after work. He goes to bed about one hour after he gets home, and wakes up at 5:00 am. He feels like the only thing he wants to do is sleep. The examiner indicated that the symptoms of acute onset; low grade fevers; non-exudative pharyngitis; enlarged or tender cervical/axillary nodes; debilitating fatigue lasting > 24 hours post exercise; headaches; and migratory joint pain were not endorsed. The Veteran reported his functional limitations include driving, but he has not dozed off. He sometimes has problems focusing and has to check, and recheck his work. The examiner indicated that the Veteran has never been seen by an ENT, and has never had a diagnosis of CFS. The examiner stated, there is no evidence of any chronic or disabling "chronic fatigue" condition (to include "chronic fatigue syndrome") related to the Veteran's Active duty service (to include exposures during Gulf War Service) to account for the Veteran's CLAIMED "chronic fatigue syndrome" symptoms. The examiner reviewed the pertinent evidence and concluded that the Veteran has never had a diagnosis of CFS. The examiner noted times where the Veteran reported fatigue, but the Veteran has not had a diagnosis of CFS. In November 2021, the Veteran testified at a Board hearing that he noticed the symptoms at the end of service, and they progressed more and more after he left service. The Veteran testified that he did not seek treatment until 2004, which was about 11 years after he separated from service. The Veteran testified it was getting pretty bad at that point. In May 2022, the Board remanded this matter to secure private treatment records that may demonstrate that the Veteran was given a diagnosis of CFS. In August 2022, the Veteran was afforded a VA examination for his claimed CFS. The examiner indicated that the Veteran's treatment records reflected that he had a diagnosis of CFS per records review. The Veteran reported the condition began toward the end of 1993 prior to discharge. The Veteran then stated the condition began shortly after service when the Veteran noticed he was getting tired. His symptoms include lack of energy, sleepiness, and anxiety. He was treated with medication for depression, but he was not sure the name of the medication, but received no relief. He is currently taking, Wellbutrin 15 mg and Dextroamphetamine 15mg and 10mg as per Veteran's statement. The Veteran stated he is late to work, has no energy, forgets things, and has a decreased level of focus. The Veteran reported continuous medication is required for CFS. The examiner indicated that the Veteran had an acute onset of CFS, and the debilitating fatigue reduced daily activity level to less than 50 percent of pre-illness level for 6 or more months. The Veteran's CFS symptoms include debilitating fatigue. The examiner indicated that the Veteran has fatigue that is not alleviated by sleep and rest. The Veteran also has a cognitive impairment including inability to concentrate, and the symptoms are nearly constant. The examiner indicated that the symptoms restrict routine daily activities almost completely and may occasionally preclude self-care. The Veteran reported that his claimed CFS impacts his ability to work include being late to work, no energy, forgets things, and has decreased focus. The examiner opined, that the Veteran's claimed CFS was less likely than not aggravated by its natural progression by his service connected disabilities, and referred to the Veteran's psych DBQ for the rationale. In December 2022, the Veteran was afforded a VA examination for his claimed CFS. The examiner indicated that the Veteran does not have a diagnosis of CFS. The Veteran reported that he started to experience symptoms of chronic fatigue in about 1995. He claims that he has lack of energy all of the time and sleeps excessively. He complained of having problems getting up in the morning. He has worked in communications. He is currently diagnosed with severe depression. He is currently prescribed Amphetamine and Bupropion which he takes daily. He has never been diagnosed with chronic fatigue. He is currently being treated by psychiatry. The Veteran is not taking continuous medication to control CFS. The examiner indicated that the Veteran did not have an acute onset of CFS. The Veteran has not had a debilitating fatigue reduced daily activity level to less than 50 percent of pre-illness level. He does not have signs or symptoms of CFS. The examiner concluded that the Veteran does not have a diagnosis of CFS because there are no findings, signs and or symptoms to support a diagnosis. In spite of his claim of chronic fatigue he has held the same job for the past 6 years. In December 2022, VA secured addendum medical opinions for the Veteran's claimed CFS. The examiner opined that the Veteran's claimed CFS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. As to the rationale, the examiner explained that the Veteran does not have a diagnosis of chronic fatigue. This claimed condition has not interfered with his ability to hold a regular job for the past 6 years. The claim of chronic fatigue is less likely than not the result of his two head injuries during service. The examiner further explained, there is no evidence provided in the Veteran's e-file pertaining to the claimed in-service injury, event, or illness within the Veteran's active service dates. Also, the presence of the diagnosis of chronic fatigue syndrome in the Veteran's e-file dates after the Veteran's active service dates. The examiner opined that the Veteran's claimed CFS was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disabilities. As to the rationale, the examiner explained the Veteran does not have a diagnosis of CFS. This has been evaluated and his symptoms of lack of motivation has been attributed to his chronic depression. This condition has not interfered with his ability to hold a regular job for the past 6 years. The claim of chronic fatigue is less likely than not the result of his psychiatric conditions. The examiner opined that the Veteran's claimed CFS was less likely than not aggravated by its natural progression by his service connected disabilities. As to the rationale the examiner explained, in spite of his claim there is no evidence of chronic fatigue interfering with his daily life. There has been no diagnosis of chronic fatigue. He c/o lethargy which has been attributed to his depression but there has never been a diagnosis of CFS. In March 2023 VA secured an addendum medical opinion to address the conflicting evidence. The examiner indicated that he concurs with the Veteran having no diagnosis of CFS. The examiner explained that the August 2022 medical examination itself does not satisfy the VA criteria for CFS. Specifically in section 3A the examiner only noted that the Veteran had one symptom of CFS, "Debilitating fatigue - Fatigue that is not alleviated by sleep and rest." However, in order for the Veteran to be diagnosed with CFS he must have 6 symptoms. The examiner indicated that the Veteran's fatigue may be due to MDD, ADHD and clinical obstructive sleep apnea per the records. These conditions cause fatigue and were not ruled out as the specific source of the Veteran's fatigue, but the Veteran does not, and has never had a diagnosis of CFS. The Board finds that weighing the Veteran's testimony, buddy statements, private treatment records, VA treatment records, and VA examinations the Veteran does not have a diagnosis of CFS, and never has had a diagnosis of CFS that meets VA criteria. The most probative evidence includes the December 2017, December 2022 VA medical opinion and the March 2023 VA addendum medical opinion. The examiner's opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes he has a current diagnosis of chronic fatigue syndrome and he is considered competent to report specific symptoms observable through the senses, he is not considered competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, his assertions to the effect that he has chronic fatigue syndrome are not probative. The Board also acknowledges that there was conflicting evidence in the record. Specifically, the August 2022 VA examiner indicated that the Veteran had a diagnosis of CFS. However, as discussed by the March 2023 VA examiner, the August 2022 VA examiner's examination report did not demonstrate that the Veteran had a diagnosis of CFS because while the examiner noted that the Veteran had acute CFS, and his symptoms persisted for more than 6 months, the examiner was unable to demonstrate that the Veteran had at least 6 symptoms that are required to show that the Veteran has a diagnosis of CFS. Thus, the Board finds the August 2022 medical opinion to be invalid. The Veteran's treatment records, and VA examinations have discussed that the Veteran has fatigue, but the Veteran does not have a diagnosis of CFS. The Board also notes that the December 2017 Gulf War examiner found there is no evidence for an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. All the Veteran's conditions evaluated by the undersigned on 12/12/2017 are consistent with a disease with a clear and specific etiology and diagnosis. The December 2017 VA examiner indicated that the Veteran has never been seen by an ENT, and has never had a diagnosis of CFS. The examiner stated, there is no evidence of any chronic or disabling "chronic fatigue" condition (to include "chronic fatigue syndrome") related to the Veteran's Active duty service (to include exposures during Gulf War Service) to account for the Veteran's claimed "chronic fatigue syndrome" symptoms. The examiner reviewed the pertinent evidence and concluded that the Veteran has never had a diagnosis of CFS. The examiner noted times where the Veteran reported fatigue, but the Veteran has not had a diagnosis of CFS. Thus, the Veteran is not entitled to service connection based on either a direct theory of entitlement or presumptive theory. (Continued on the next page) ? 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). In this case, the Board does not find that there is an approximate balance of positive and negative evidence, as the Veteran does not have and has never had a diagnosis of CFS that meets VA criteria. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.