Case 22059759

A. YAFFE · 2022 · Case ID: 22059759

DENIED

Summary

The Veteran served in the United States Air Force from January 1979 to February 2000. This case involves appeals from an August 2014 rating decision, with prior remands in August 2021 and March 2022 for additional development. The Veteran sought service connection for chronic fatigue, myalgia (body aches), and chest muscle spasms, alternatively claiming these conditions were secondary to his service-connected sleep apnea. The Board denied all claims. For chronic fatigue, the Board found no current diagnosis, noting that the Veteran's fatigue resolved with treatment for sleep apnea, and that fatigue alone is not a separate disability but a symptom of sleep apnea. For myalgia, the Board found no current diagnosis or persistent symptoms post-service, and that the Veteran, as a layperson, was not competent to diagnose or establish etiology. For chest muscle spasms, the Board found no current diagnosis or complaints post-service, and that the Veteran's in-service complaints resolved with treatment for sleep apnea. In all denied claims, the Board found the weight of the evidence persuasively against the Veteran's claims, rendering the benefit of the doubt doctrine inapplicable. The Board also noted that lay persons are not competent to render medical opinions on etiology.

Rationale

No current diagnosis of chronic fatigue syndrome.; Fatigue resolved with treatment of sleep apnea.; Fatigue is a symptom of sleep apnea, not a separate disability (pyramiding).; Layperson not competent to diagnose or determine etiology.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-14 084A

Full Decision Text

Citation Nr: 22059759
Decision Date: 10/25/22 Archive Date: 10/25/22

DOCKET NO. 17-14 084A
DATE: October 25, 2022

ORDER

Entitlement to service connection for chronic fatigue is denied.

Entitlement to service connection for myalgia, to include body aches, is denied.

Entitlement to service connection for chest muscle spasms is denied.

FINDINGS OF FACT

1. The Veteran's claimed condition of chronic fatigue is not an independent diagnosis but rather a symptoms of the already service-connected sleep apnea.

2. The Veteran does not have a current diagnosis of myalgia manifested by body aches.

3. The Veteran does not have a current diagnosis of chest disability, which manifested by chest muscle spasms.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for chronic fatigue, to include as secondary to service-connected sleep apnea, have not been met. 38 U.S.C. § 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. The criteria for entitlement to service connection for myalgia, to include as secondary to service-connected sleep apnea, have not been met. 38 U.S.C. § 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

3. The criteria for entitlement to service connection for chest muscle spasms, to include as secondary to service-connected sleep apnea, have not been met. 38 U.S.C. § 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from January 1979 to February 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).

In August 2021 and March 2022, the Board, in pertinent part, remanded the claims for additional development to obtain VA examinations on the etiology of the Veteran's claimed conditions and whether any service-connected disabilities aggravated the claimed conditions. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the appellant nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

SERVICE CONNECTION

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Establishing entitlement to direct service connection generally requires: (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, 1166-67 (Fed. Cir.
connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A disability which is proximately due to, or the result of, a service-connected disease or injury shall be service connected. 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.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

1. Chronic Fatigue

The Veteran contends he has chronic fatigue due to service, or alternatively, due to service-connected sleep apnea.

VA treatment records show the Veteran was diagnosed with fatigue in January 2009.

In October 2013, the Veteran's wife submitted a statement stating that the Veteran was fatigued most of the time.

Private treatment records from Ridgeview Internal Medicine demonstrate a diagnosis of malaise and fatigue in 2013 and 2015 through 2017.

The Veteran was afforded a VA examination in November 2021. The examiner noted that the Veteran had signs and symptoms of chronic fatigue syndrome. The examiner determined that after the Veteran was diagnosed with and began treatment for sleep apnea in 2012, the fatigue resolved. The examiner opined that there was no current diagnosis of chronic fatigue syndrome and, therefore, the claimed chronic fatigue syndrome was less likely than not caused by the chronic fatigue during service. The examiner failed to address whether the Veteran had a diagnosis of chronic fatigue at any time during the period on appeal and his opinion was found to be inadequate.

In July 2022, an addendum opinion was obtained for the Veteran's chronic fatigue. The examiner reviewed the Veteran's records and opined that "there is no objective evidence of a previously established diagnosis of chronic fatigue syndrome throughout the medical records. Additionally, there is no objective evidence of diagnostic criteria for chronic fatigue syndrome having been previously met." The examiner further opined that "obstructive sleep apnea does not represent an established primary etiology of chronic fatigue syndrome in the medical literature. Rather, chronic fatigue syndrome represents a separate and distinct disease entity unrelated (by definition) to any alternate diagnosis."

The Board acknowledges that the Veteran asserts there is a nexus between his fatigue and service. However, the medical record indicates that the Veteran's previous fatigue was due to his sleep apnea and has resolved with treatment of sleep apnea. No medical provider has diagnosed the Veteran with chronic fatigue syndrome. While a lay person is competent to testify about their symptoms, or to report what a doctor has told him, only a medical professional is competent to provide a diagnosis. As a lay person, the Veteran is not competent to render an opinion as to the etiology of his claimed conditions as he is a layperson lacking the necessary training and knowledge to do so. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Because the Veteran's fatigue has been linked to his service-connected sleep apnea, and fatigue is contemplated in the rating evaluation for sleep apnea, a separate rating for fatigue is not warranted as that would constitute pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown,
symptoms, or to report what a doctor has told him, only a medical professional is competent to provide a diagnosis. As a lay person, the Veteran is not competent to render an opinion as to the etiology of his claimed conditions as he is a layperson lacking the necessary training and knowledge to do so. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b).

2. Myalgia

The Veteran contends he has myalgias due to service, or alternatively, due to service-connected sleep apnea.

The Veteran's in-service treatment records indicate that he complained of body aches in March 1997, was diagnosed with myalgia in January 1988, complained of muscle aches in December 1988, and was diagnosed with myofascial syndrome in April 1989.

When reporting to his private doctors for treatment of other disabilities after service, the Veteran has consistently denied chest pain, muscle aches, or other pain unrelated to his back disability. The Veteran's private treatment records reflect that he has only complained of joint and body pain in relation to having a cold or the flu, and those symptoms did not persistent once the Veteran recovered.

The Veteran was afforded a VA examination in November 2021. The examiner noted the Veteran reported muscle aches and pains during service and received treatment for myalgias in January 1988. He determined that the Veteran did not currently have any myalgias as his symptoms resolved since the Veteran began treatment of his sleep apnea. As a result, the examiner opined that the claimed myalgias were less likely than not a result of myalgias during service. The examiner failed to discuss the identified in-service treatments in his opinion and his opinion was found to be inadequate.

In July 2022, an addendum opinion was obtained for the Veteran's myalgia. The examiner opined that "myalgias/body aches represent a common symptom which often occur without a specific predisposing etiology" i.e., it is not a separate and distinct disability. The examiner further opined that myalgia was not related to the Veteran's sleep apnea or any of the Veteran's other diagnosed conditions.

The Board acknowledges that the Veteran asserts there is a nexus between his myalgia and service. However, the medical record indicates that the Veteran has not been noted to have myalgia post-service.

While the Veteran may contend that he had myalgia related to service, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the body systems and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a lay person, the Veteran is not competent to render an opinion as to the etiology of his claimed conditions as he is a layperson lacking the necessary training and knowledge to do so; a lay person is competent to testify about their symptoms, or to report what a doctor has told him. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Therefore, the Board finds that the evidence weighs against a finding of a current disability related to myalgia, which is a symptom of a disability. There is no current diagnosis on record related to myalgia, nor is there a finding that the Veteran currently experiences myalgia at any time during the period on appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Degmetich v. Brown, 104 F.3d 1328, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the competent medical evidence did not attribute the claimed symptoms to a medical diagnosis and neither the lay nor medical evidence suggests that his reported symptoms have resulted in functional impairment of earning capacity during the appeal period
on appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Degmetich v. Brown, 104 F.3d 1328, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the competent medical evidence did not attribute the claimed symptoms to a medical diagnosis and neither the lay nor medical evidence suggests that his reported symptoms have resulted in functional impairment of earning capacity during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

As there is no evidence of a current disability, there can be no valid claim. Entitlement to service connection for myalgia is therefore denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b).

3. Chest Muscle Spasms

The Veteran contends he has chest muscle spasms due to service, or alternatively, due to service-connected sleep apnea.

The Veteran's in-service treatment records indicate that he complained of chest pain and difficulty breathing in March, June, and July 1988.

The Veteran's post-service, private medical records reflect that the Veteran has consistently denied chest pain or breathing difficulty. The Veteran's private treatment records reflect that he has only complained of cough or shortness of breath in relation to having a cold or the flu, and those symptoms did not persistent once the Veteran recovered.

The Veteran was afforded a VA examination in November 2021. The examiner noted the Veteran reported muscle spasms in June and July 1988, with myofascial syndrome diagnosed in April 1989. He further noted the Veteran did not have any muscle injuries and there are no current reports of muscle spasms. The examiner determined that the symptoms resolved with the treatment of sleep apnea; therefore, the claimed muscle spasms were less likely than not caused by muscle spasms during service. The examiner did not acknowledge and discuss the in-service treatment and his opinion was found to be inadequate.

In July 2022, an addendum opinion was obtained for the Veteran's chest muscle spasms. The examiner opined that while the Veteran had complaints of chest pain during service, he did not have any current complaints or diagnoses related to chest pain and difficulty breathing.

The Board acknowledges that the Veteran asserts there is a nexus between his chest complaints and service. However, the medical record indicates that the Veteran has not been diagnosed with chest complaints since service.

While the Veteran may contend that he had chest complaints related to service, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the body systems and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a lay person, the Veteran is not competent to render an opinion as to the etiology of his claimed conditions as he is a layperson lacking the necessary training and knowledge to do so; a lay person is competent to testify about their symptoms, or to report what a doctor has told him. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

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Therefore, the Board finds that the evidence weighs against a finding of a current disability. There is no current diagnosis on record related to chest complaints, nor is there a finding that the Veteran currently experiences chest complaints at any time during the period on appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Degmetich v. Brown, 104 F.3d 1328, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the competent medical evidence did not attribute the claimed symptoms to a cardiac condition and neither the lay nor medical evidence suggests that his reported symptoms have resulted in functional impairment of earning capacity during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

As there is no evidence of a current disability
grant of service connection, there can be no valid claim for that benefit. See Degmetich v. Brown, 104 F.3d 1328, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, the competent medical evidence did not attribute the claimed symptoms to a cardiac condition and neither the lay nor medical evidence suggests that his reported symptoms have resulted in functional impairment of earning capacity during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

As there is no evidence of a current disability, there can be no valid claim. Entitlement to service connection for chest complaints is therefore denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b).

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board L.M. Barletta

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.

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