Citation Nr: A25035333 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240812-474237 DATE: April 16, 2025 ORDER Entitlement to service connection for chronic fatigue syndrome as secondary to service-connected lumbar strain and/or depressive disorder is denied. Entitlement to service connection for insomnia as secondary to service-connected depressive disorder and/or migraines is denied. REMANDED Entitlement to service connection for neck condition as secondary to service-connected migraines is remanded. Entitlement to service connection for left shoulder condition as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for right shoulder condition as secondary to service-connected lumbar strain is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have (or during the pendency of this claim to have had) a diagnosed chronic fatigue syndrome disorder. 2. The Veteran suffers from insomnia that is already being compensated as a symptom of his service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a chronic fatigue syndrome are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for establishing service connection for an insomnia disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty training (ACDUTRA) in the United States Navy from September 1985 to February 1986, with additional periods of ACDUTRA and inactive duty training (INACDUTRA) in the Naval Reserve. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2024 the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) to the RO's initial, April 2023 rating decision that denied the Veteran's claims herein. Thereafter, in August 2024 the Board wrote the Veteran to inform her that she had filed an untimely Notice of Disagreement to the April 2023 rating decision. In response, in September 2024 the Veteran corrected the mistake by filing another VA Form 10182 Notice of Disagreement, this time listing the January 2024 supplemental-claim rating decision on appeal. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Board notes that along with his September 2024 VA Form 10182 Notice of Disagreement, the Veteran resubmitted medical records that were already part of the claims file prior to the January 2024 rating decision on appeal and, therefore, did not constitute new evidence submitted following the January 2024 rating decision. For the claims denied herein, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. For the claims remanded herein, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Additionally, in the January 2024 rating decision on appeal, the RO made favorable findings that new and relevant evidence was received to reopen and readjudicate the Veteran's claims. Under the AMA, the Board is bound by favorable findings of AOJ. 38 C.F.R. § 3.104(c). Accordingly, the Board will proceed to consider the claims on the merits. Service Connection Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted on a secondary basis if the record contains evidence sufficient to establish: (1) a current disability; (2) a service-connected connected disability; and (3) that the current disability was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. Secondary causation exists when, but for the service-connected disability, the non-service-connected disorder was caused by the service-connected disability in either a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability is not caused by a service-connected disability but would be less severe if not for the service-connected disability. Id. at 1364. For example, secondary aggravation may be established when the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected lumbar strain and/or depressive disorder, is denied. In her original February 2023 claim, the Veteran asserted that she suffered from chronic fatigue syndrome due to her service-connected depressive disorder. In a March 2023 VA examination, the Veteran stated that she always felt a lack of energy to arise from bed in the morning, which she described as chronic fatigue and weakness. She stated that her fatigue began after injuring her back in 1986 while serving in the military and working at a warehouse. The Veteran is service connected for depressive disorder and lumbar strain. The examiner noted that the Veteran suffered from generalized muscle aches or weakness, headaches, and sleep disturbance that were associated with chronic fatigue syndrome. The Veteran is separately service connected for migraines. However, the examiner concluded that the Veteran did not meet the diagnostic requirements for chronic fatigue syndrome. The Board finds this VA examination inadequate, as the examiner appears to note some symptomology of chronic fatigue syndrome but then opined that the Veteran did not suffer from chronic fatigue syndrome, which the Board finds contradictory. In a December 2023 VA examination, the Veteran described symptoms of unrefreshing nighttime sleep due to diagnosis of sleep apnea, depression, and anxiety with insomnia. The examiner noted that the Veteran's diagnosed sleep disorders would inevitably cause her to be tired during the daytime, lack energy, feel easily fatigued, and unable to concentrate with memory loss. The examiner further wrote that the Veteran's depressive disorder (with insomnia) condition was treated with prescription antidepressants and Ambien, along with her service-connected obstructive sleep apnea treated with a continuous positive airway pressure (CPAP) machine. This examiner did not note any separate symptoms attributable to chronic fatigue syndrome and concluded that the Veteran did not have a separate diagnosis of chronic fatigue syndrome. The Board finds this examination adequate and assigns it much probative weight. The examiner met with the Veteran in person, indicated reviewing the Veteran's claims file, and provided a sufficient rationale to support the opinion reached. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought (here, a chronic fatigue syndrome disorder). See 38 U.S.C. § 1110. The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence of record does not demonstrate that the Veteran has, or at any time during the pendency of the instant claim has had, a chronic fatigue syndrome diagnosis. As noted by the December 2023 VA examiner, the Veteran's symptoms of fatigue are associated with her separate diagnoses of service-connected obstructive sleep apnea and insomnia associated with her service-connected mental disorder. The Board has considered the lay statements of the Veteran indicating that she believes she suffers from a separate diagnosis of chronic fatigue syndrome. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to probative lay comment regarding etiology. While the Veteran is competent to report observable symptoms, there is no indication that she is competent to etiologically link any such symptoms to a separate diagnosis of chronic fatigue syndrome. She is not shown to possess the requisite medical training, expertise, or credentials needed to diagnose chronic fatigue syndrome. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such a disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, the lay evidence does not constitute competent medical evidence and lacks probative value. The lay opinion is also outweighed by the VA examinations/opinions. As a separately diagnosed chronic fatigue syndrome disorder during the pendency of this claim is not shown, the Veteran has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). Further, as the evidence persuasively favors against the claim of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim is denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Thus, entitlement to service connection for chronic fatigue syndrome as secondary to service-connected lumbar strain and/or depressive disorder is denied. 2. Entitlement to service connection for insomnia as secondary to service-connected depressive disorder and/or migraines is denied. The Veteran contends that she should be separately service connected for her diagnosed insomnia as secondary to her service-connected depressive disorder and migraines. The Board concludes that the Veteran does not have a current diagnosis of insomnia that is considered a separate disability distinct from the symptoms accounted for by her service-connected depressive disorder 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). Pursuant to 38 C.F.R. § 4.14, providing the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited, as it constitutes prohibited pyramiding. The rationale behind this "rule against pyramiding" is that a claimant should not be compensated twice (or more) for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). A March 2023 VA examiner provided a positive nexus opinion, concluding that the Veteran's diagnosed insomnia was secondary her service-connected depressive disorder. However, the examiner than noted that the Veteran's reported symptoms of insomnia are subsumed under her depressive disorder diagnosis. An examiner is required to not only render a clear conclusion on the relevant medical question but to support that conclusion "with an analysis that the Board can consider and weigh against contrary opinions." Stefl v Nicholson, 21 Vet. App. 120, 124 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Accordingly, absent a sufficient rationale, a medical opinion has no probative value. See Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). The Board finds the March 2023 VA nexus opinion inadequate, as it is contradictory. While the examiner provided a positive nexus opinion, at the same time the examiner concluded that the Veteran's symptoms of insomnia were already subsumed under the Veteran's service-connected depressive disorder, which would constitute pyramiding. Thus, the opinion is inadequate. In a December 2023 VA medical opinion, the examiner concluded that the Veteran did not have a separate diagnosis of insomnia, but that it was a symptom of her service-connected depressive disorder. In fact, in the Veteran's December 2023 VA examination for her mental disorder, chronic sleep impairment is listed as a symptom of her depressive disorder. In her December 2023 mental disorder examination, the Veteran described being tired and moody. She stated that she recently fell asleep on the toilet and fell off the toilet. She also reported snoring loudly and that she could not sleep with her spouse. She indicated that sleep was the primary problem for her now. This examiner indicated reviewing the Veteran's claims file and provided a sufficient rationale to support the conclusion reached. Accordingly, the Board finds this opinion adequate and assigns to much probative weight. Thus, Board concludes that the Veteran does not have a current diagnosis of insomnia that is considered a separate disability distinct from the symptoms accounted for by her service-connected depressive disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. To the extent the Veteran believes she has a current diagnosis of insomnia that is separate from the symptoms already accounted for by her service-connected depressive disorder, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d 1372 at 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. Further, as the evidence persuasively favors against the claim of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim is denied on its merits. 38 U.S.C. § 5107; Lynch, 21 F.4th 776. Thus, entitlement to service connection for insomnia as secondary to service-connected depressive disorder and/or migraines is denied. REASONS FOR REMAND 1. Entitlement to service connection for neck condition as secondary to service-connected migraines is remanded. The Veteran contends that she suffers from neck pain as secondary to her service-connected migraine headache disability. In an April 2023 VA examination, the examiner diagnosed the Veteran with cervical strain. This examiner concluded that the Veteran's neck strain was less likely than not proximately due to or the result of her service-connected migraines. The examiner reasoned that there was insufficient medical evidence to suggest that the claimed condition was a chronic problem in relation to the Veteran's service-connected migraines. The examiner further noted that there was no chronicity of care noted. The examiner did not provide an opinion on aggravation. The Board finds the April 2023 nexus opinion inadequate, as the examiner did not provide a sufficient rationale to support the conclusion reached. Horn, 25 Vet. App. at 240-42. Specifically, the examiner did not explain why there was no link between the Veteran's neck pain and her migraines, only citing insufficient medical evidence. Additionally, the April 2023 VA nexus opinion is not compliant with Spicer, as the clinician based the opinion on a "proximately due to" basis, rather than the "but for" analysis articulated in Spicer, 61 F.4th at 1365. Moreover, the examiner failed to provide an opinion on secondary service connection via aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (stating that a negative secondary service connection medical opinion was inadequate because it did not discuss aggravation). In December 2023 the Veteran underwent another VA examination. This examiner diagnosed the Veteran with cervical strain, degenerative arthritis, and degenerative disc disease. This examiner also found that the Veteran's neck conditions were less likely than not proximately due to or the result of her service-connected migraines. The examiner reasoned that although chronic neck pain has been shown to be a causal risk factor for cervicogenic headaches, tension headaches, and migraine headaches, the reverse of this nexus has not been demonstrated in medical research literature. The examiner further commented that many factors could irritate or strain the nerves in the neck, which could trigger a headache, including poor posture, neck strain, injury, or medical conditions like a pinched nerve or herniated cervical disk. While the Board finds the rationale provided sufficient, as discussed with the April 2023 nexus opinion, the examiner based the opinion on a "proximately due to" basis, rather than the "but for" analysis articulated in Spicer, 61 F.4th at 1365. Moreover, the examiner failed to provide an opinion on secondary service connection via aggravation. See El-Amin, 26 Vet. App. at 140-41. Hence, this opinion is also inadequate. The Board is without an adequate medical nexus opinion to adjudicate the Veteran's claim, requiring remand under the Appeals Modernization Act (AMA) due to a pre-decisional duty to assist error in obtaining inadequate medical opinions. 38 C.F.R. § 20.80. 2. Entitlement to service connection for left shoulder condition as secondary to service-connected lumbar strain is remanded. 3. Entitlement to service connection for right shoulder condition as secondary to service-connected lumbar strain is remanded. The Veteran asserts that she suffers from bilateral shoulder pain due to her service-connected lumbar strain. In an April 2023 VA examination, the examiner diagnosed the Veteran with bilateral shoulder strain. The examiner concluded that the Veteran's bilateral shoulder strain was less likely than not proximately due to or the result of her service-connected lumbar strain. The examiner reasoned that there was insufficient medical evidence to suggest that the claimed condition was a chronic problem in relation to the Veteran's service-connected lumbar strain. The examiner further noted that there was no chronicity of care noted. The examiner did not provide an opinion on aggravation. The Board finds the April 2023 nexus opinion inadequate, as the examiner did not provide a sufficient rationale to support the conclusion reached. Horn, 25 Vet. App. at 240-42. Specifically, the examiner did not explain why there was no link between the Veteran's shoulder strain and her lumbar strain, only citing insufficient medical evidence. Additionally, the April 2023 VA nexus opinion is not compliant with Spicer, as the clinician based the opinion on a "proximately due to" basis, rather than the "but for" analysis articulated in Spicer, 61 F.4th at 1365. Moreover, the examiner failed to provide an opinion on secondary service connection via aggravation. See El-Amin, 26 Vet. App. at 140-41. In a December 2023 VA examination, the examiner also diagnosed the Veteran with bilateral shoulder strain. This examiner opined that the Veteran's bilateral shoulder strain was less likely than not proximately due to or the result of her service-connected lumbar strain. The examiner reasoned that the shoulder and lumbar spine are anatomically distinct and separate body parts, with no overlap in function. The examiner further explained that the Veteran's current clinical exam revealed strain to the trapezius muscles and that although the trapezius origin included the spinous processes of thoracic vertebrae T1-T12, it did not include the lumbar spine. Additionally, for the Veteran's right shoulder, the examiner cited that the Veteran's radiographs revealed acromioclavicular joint osteoarthritis, with such osteoarthritis not sharing functional overlap with the lumbar spine. While the Board finds the rationale provided sufficient, as discussed with the April 2023 nexus opinion, the examiner based the opinion on a "proximately due to" basis, rather than the "but for" analysis articulated in Spicer, 61 F.4th at 1365. Moreover, the examiner failed to provide an opinion on secondary service connection via aggravation. See El-Amin, 26 Vet. App. at 140-41. Hence, this opinion is also inadequate. The Board is without an adequate medical nexus opinion to adjudicate the Veteran's claims, requiring remand under the AMA due to a pre-decisional duty to assist error in obtaining inadequate medical opinions. 38 C.F.R. § 20.80. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's neck condition. Following review of the claims file, and this remand, the clinician must provide an opinion on the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's neck condition was caused or aggravated (the opinion must address the concept of aggravation) by any of the Veteran's service-connected disabilities, including migraines. (b.) If the opinion is that the Veteran's neck conditions are not caused by any of her service-connected disabilities, including migraines, the examiner must identify the more likely etiology for the neck conditions and explain why it is so. 2. Obtain an addendum VA medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's bilateral shoulder conditions. Following review of the claims file, and this remand, the clinician must provide an opinion on the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral shoulder conditions were caused or aggravated (the opinion must address the concept of aggravation) by any of the Veteran's service-connected disabilities, including lumbar strain. (b.) If the opinion is that the Veteran's bilateral shoulder conditions are not caused by any of her service-connected disabilities, including lumbar strain, the examiner must identify the more likely etiology for the neck conditions and explain why it is so. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding symptomology. If the examiner chooses to reject any lay statements, the examiner must provide a reason for doing so, and her lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. All opinions must be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. If medical literature is relied upon, the clinician must identify and specifically cite each reference material used and must also discuss how it relates to the Veteran's particular medical history. The clinician should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with findings made. If the clinician determines that an opinion cannot be provided without resorting to speculation, the clinician must explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the clinician must comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.M. Winchell 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.