Citation Nr: 18160606
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 13-15 582
DATE:	December 28, 2018
ORDER
Service connection for fatigue, including chronic fatigue syndrome (CFS), is denied.  
Service connection for muscle cramps is denied.  
REMANDED
Service connection for a back disability, is remanded.  
Service connection for a right foot disability, to include bunions, is remanded.  
Service connection for a left foot disability, to include bunions, is remanded.  
 

FINDINGS OF FACT
1.  The Veteran does not have a diagnosis of CFS, or a qualifying chronic disability manifested by fatigue due to an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI).  
2.  The Veteran does not have a qualifying chronic disability manifested by muscle cramps due to an undiagnosed illness or a MUCMI.  
CONCLUSIONS OF LAW
1.  The criteria for service connection for fatigue, including CFS, are not met.  38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.88a.
2. The criteria for service connection for muscle cramps are not met.  38 U.S.C. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1988 to March 1992.  
This matter comes before the from an April 2010 rating decision.  
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2016.  
In November 2016, the Board remanded the case for additional development.  
In a May 2018 rating decision, service connection was granted for bilateral hearing loss and tinnitus.  This represents a full grant of the benefits sought with respect to those issues.  
The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Service Connection
Laws and Regulations
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  A veteran seeking compensation under these provisions must establish three elements: “(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.”  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Additionally, VA will also pay compensation to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest either during that veteran’s active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more thereafter.  38 U.S.C. § 1117; 38 C.F.R. § 3.317.  CFS is such a qualifying chronic disability characterized as a MUCMI.  See 38 C.F.R. § 3.317(a)(2)(i)(B)(2).  In addition, signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses include muscle pain.  See 38 C.F.R. § 3.317(b)(4)(i).  
 
Analysis
1. Service connection for fatigue.  
The Veteran seeks service connection for fatigue.  He asserts that the onset of fatigue was after he returned from service in Saudi Arabia, and that he has had fatigue since separation.  
The record establishes the Veteran’s service in the Southwest Asia Theater of Operations, to include service in Saudi Arabia from August 1990 to April 1991, with duties to include delivering supplies to forward combat service support units.  Thus, the provisions of 38 C.F.R. § 3.317 are for consideration.  
Service treatment records (STRs) fail to reveal any significant signs or symptoms that can be construed as related to CFA, or difficulties with fatigue in general.  The Board notes that complaints of body aches in July 1990 were attributed to bronchitis/pneumonia.  
The post-service record is negative for a diagnosis of or treatment for fatigue.  Medical treatment records in general show that, although the Veteran has been evaluated for various medical complaints, there is no evidence of a disability manifested by fatigue.  
An April 2018 VA examination was conducted pursuant to the Board’s remand.  The examiner concluded that that the Veteran does not have a diagnosis of CFS or fatigue.  The Veteran’s report that day-time fatigue resolved once he began using a continuous airway pressure (CPAP) device in association with a diagnosis of obstructive sleep apnea was noted.  In addition, the VA examiner determined that fatigue is related to the Veteran’s obstructive sleep apnea and therefore is not a part of a MUCMI.  
In this case, the Board finds that the evidence does not establish a currently diagnosed chronic disability manifested by fatigue.  The Veteran is competent to report his symptoms to include onset of fatigue after service in Saudi Arabia, as well as that he took pills issued prior to deploying to the Southwest Asia Theater of Operations, that he had exposure to environmental hazards while deployed, and that he observed “chemical tape” applied to the mirror in his motor vehicle turn from green to black in or around burning oil fields.  In addition, the Board accords great probative value to his report that day-time fatigue resolved once he began using a CPAP device in association with a diagnosis of sleep apnea and that he has no fatigue with use of the machine.  As noted above, under 38 C.F.R. § 3.317, CFS is specifically listed as a MUCMI for which service connection may be granted based on Gulf War service.  However, the Board finds that the Veteran does not have CFS, including as defined for VA purposes.  See 38 C.F.R. § 4.88a.
In sum, the Board finds that the Veteran does not have a diagnosis of CFS, or a qualifying chronic disability manifested by fatigue due to an undiagnosed illness or a MUCMI.  As such, the preponderance of the evidence is against the claim, and thus, there is no doubt to be resolved.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Therefore, service connection for fatigue is not warranted.  
2. Service connection for a muscle cramps.  
The Veteran seeks service connection for muscle cramps.  He asserts that the onset of muscle cramps was after he returned from service in Saudi Arabia, and that he has had muscle cramps affecting his legs, ribs, and feet since separation.  As noted previously, the provisions of 38 C.F.R. § 3.317 are for consideration.  
STRs are silent with respect to muscle cramps.  The Board notes that complaints of body aches in July 1990 were attributed to bronchitis/pneumonia.  
The post-service record is negative for any evidence of a diagnosis related to muscle cramps.  Although VA treatment records in May 2013 reflect complaints of abdominal and muscle cramps, no assessment was entered.  In addition, records in August 2017 reflecting diabetes and the Veteran’s report that cramps were starting to come back again with the change in season, note a single incident of pain in the right chest without recurrence. 
The April 2018 VA examiner stated it was not possible to determine whether cramps began within six months after service as such would require resorting to speculation.  In addition, muscle cramps were noted to be a nonspecific symptom which could be related to diabetes, respiratory/pulmonary disease, long-term tobacco use, and sedentary lifestyle, all of which were noted to apply to the Veteran.  The examiner added that muscle cramps alone do not constitute a MUCMI.  
In this case, the Board finds that the evidence does not establish a currently diagnosed chronic disability manifested by muscle cramps.  The Veteran is competent to report his symptoms to include onset of muscle cramps after service in Saudi Arabia, as well as that he took pills issued prior to deploying to the Southwest Asia Theater of Operations, that he had exposure to environmental hazards while deployed, and that he observed “chemical tape” applied to the mirror in his motor vehicle turn from green to black in or around burning oil fields.  
The April 2018 VA opinion constitutes competent medical evidence.  Further, as this opinion is unequivocally stated, consistent with the record, and supported by cited evidence of record, the Board finds that this medical opinion is probative evidence against the Veteran’s claim.  That is, the medical evidence outweighs the Veteran’s report of a continuity of symptomatology and his lay opinion on the matter, even if such a theory is intuitively plausible to a lay person.  
In sum, the Board finds that the Veteran does not have a qualifying chronic disability manifested by muscle cramps due to an undiagnosed illness or a MUCMI.  As such, the preponderance of the evidence is against the claim, and thus, there is no doubt to be resolved.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Therefore, service connection for muscle cramps is not warranted.
REASONS FOR REMAND
1. Service connection for a back disability.  
An April 2018 VA examination reflects a diagnosis of degenerative arthritis of the lumbar spine and lumbosacral strain, and notes no STRs were available.  Thereafter, in October 2018, STRs noting back pain/strain in August 1988 were associated with the claims file.  Although a May 2018 deferred rating decision notes that an addendum with the respect to a back disability was to be obtained upon receipt of STRs related to the back, instead, a supplemental statement of the case (SSOC) issued.  As the STRs are relevant to the service connection claim for a back disability, the April 2018 VA examination report may not be based on an accurate medical history.  As such, a new VA examination is warranted for an opinion with respect to the etiology of the Veteran’s back disability.
2. Service connection for a right foot disability, to include bunions.  
3. Service connection for a left foot disability, to include bunions.  
An April 2018 VA examination report reflects bilateral plantar fasciitis and plantar metatarsalgia, and similarly no STRs were noted to be available.  Subsequently, in October 2018, STRs were associated with the claims file.  
The STRs note left foot pain exacerbated by marching and running in April 1988, cellulitis of the right toe in May 1988, and blisters to both feet in April 1990.  In addition, a bunion of the left foot in February 1991 was noted, and in August 1990, bilateral shin pain for three days with a history of stress fracture of the 1st metatarsal of the left foot was noted.  The Board notes that, although a May 2018 deferred rating decision states that an addendum opinion with the respect to a foot disability was to be obtained upon receipt of STRs related to the feet, instead, an SSOC was issued.  As the STRs are relevant to the service connection claims for a right and left foot disability, the April 2018 VA examination report may not be based on an accurate medical history.  As such, a new VA examination is warranted for consideration of the STRs and an opinion with respect to the etiology of the Veteran’s right and left foot disabilities.  
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA back examination by an appropriate medical professional.  The entire claims file must be reviewed by the examiner.  The examiner is to conduct all indicated tests.  
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a low back disability had its onset during, or is otherwise related to, the Veteran’s service.  
Consideration should be given to the treatment noted in the STRs.  
A rationale for all opinions expressed should be provided.  
2. Schedule the Veteran for a VA foot examination by an appropriate medical professional.  The entire claims file must be reviewed by the examiner.  The examiner is to conduct all indicated tests.  
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a right or left foot disability had its onset during, or is otherwise related to, the Veteran’s service.  
Consideration should be given to the treatment noted in the STRs.  
(Continued on the next page)
 
A rationale for all opinions expressed should be provided.
 
RYAN T. KESSEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Taylor 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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