CHRONIC FATIGUE SYNDROME

Summary

The veteran, who served from February 1978 to August 1991, appeals the denial of service connection for Chronic Fatigue Syndrome (CFS) and a blood disorder. The Veteran initially sought service connection for a blood disorder, but the Board expanded the scope of the claim to include CFS based on a March 2024 legal brief and a February 2024 private medical opinion. The Veteran contends CFS was triggered by an in-service surgery in 1979, possibly involving a blood transfusion, and that the blood disorder is either directly related to the surgery, secondary to service-connected residuals like chronic prostatitis, or due to radiation exposure. The Board found the February 2024 private medical opinion persuasive, noting it was based on a thorough review of the veteran's medical history and provided clear conclusions. While the opinion's language regarding the link between the blood disorder and CFS was somewhat unclear, the Board ultimately found it established a nexus to service for CFS and a secondary nexus to the service-connected CFS for the blood disorder, resolving reasonable doubt in the veteran's favor. Service connection for both CFS and the blood disorder, variously diagnosed as CVID, acquired hypogammaglobulinemia, lymphopenia, SLE, and UCTD, was granted.

Rationale

Current disability established; In-service surgery in April 1979 noted; Persuasive private medical opinion found nexus to service

Full Decision Text

Citation Nr: 24032772
Decision Date: 11/07/24	Archive Date: 11/07/24

DOCKET NO. 05-04 694
DATE: November 7, 2024

ORDER

Service connection for chronic fatigue syndrome (CFS) is granted.

Service connection for a blood disorder, variously diagnosed as common variable immune deficiency (CVID), acquired hypogammaglobulinemia and lymphopenia, systemic lupus erythematosus (SLE), and undifferentiated connective tissue disease (UCTD), is granted.

FINDINGS OF FACT

1. The Veteran has CFS triggered by an in-service surgery.  

2. The Veteran has a blood disorder, variously diagnosed as CVID, acquired hypogammaglobulinemia and lymphopenia, SLE, and UCTD, triggered by an in-service surgery and secondary to CFS.  

CONCLUSIONS OF LAW

1. The criteria for service connection for CFS are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a blood disorder, variously diagnosed as variously diagnosed as CVID, acquired hypogammaglobulinemia and lymphopenia, SLE, and UCTD, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1978 to August 1991.  

This case comes before the Board on appeal from a May 2003 Department of Veterans Affairs (VA) regional office (RO) rating decision.

The Veteran testified regarding this issue during Board hearings conducted in June 2009 and November 2015 by two of the undersigned Veterans Law Judges.  As detailed in the Board's November 2016 decision, the Veteran waived participation in a third Board hearing.  

Most recently, in a March 2022 decision, the Board denied service connection for a blood disorder.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in April 2023 granting an April 2023 joint motion for remand (JMR).  The Court's order remanded the matter for action consistent with the terms of the JMR.

Additional evidence was received subsequent to a November 2021 statement of the case (SSOC).  In March 2024, the Veteran's representative waived initial consideration by the RO.  See 38 C.F.R. § 20.1305(c).

Legal Criteria

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)).

Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury.  See 38 C.F.R. § 3.310.

Scope of Claim

In a March 2024 brief, the Veteran's representative requested the Board to expand the scope of the claim and recharacterize the issue as one for service connection for CFS.  The representative submitted a February 2024 private (non-VA) medical opinion explaining the relationship between CFS and the claimed blood disorder.  Based on this information, the Board agrees that the scope of the claim should be expanded to included CFS.  See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Clemons v. Shinseki, 23 Vet. App. 1 (2009).  However, the private medical opinion treats the conditions as separate conditions.  Hence, the Board will include both the CFS and blood disorder issue in the appeal.

Contentions

The Veteran is seeking service connection for CFS.  He contends
FS.  The representative submitted a February 2024 private (non-VA) medical opinion explaining the relationship between CFS and the claimed blood disorder.  Based on this information, the Board agrees that the scope of the claim should be expanded to included CFS.  See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Clemons v. Shinseki, 23 Vet. App. 1 (2009).  However, the private medical opinion treats the conditions as separate conditions.  Hence, the Board will include both the CFS and blood disorder issue in the appeal.

Contentions

The Veteran is seeking service connection for CFS.  He contends that CFS had its onset during service and was caused by an in-service surgery in 1979.  See 3/18/2024 Attorney legal brief.

The Veteran is also seeking service connection for a blood disorder, claimed as hypogammaglobulinemia, CVID, undifferentiated connective tissue disease, lupus, and bone marrow suppression.  He has offered alternative theories of entitlement.

First, the Veteran maintains that the condition is directly related to an unsuccessful surgery, including a blood transfusion, during service in 1979.  He feels that his surgery caused him to develop the immune deficiency and autoimmune disease.  See 1/22/2018 Vet statement; 11/18/2015 Board Hr'g Tr.at 4.  Specifically, he maintains that the inability to keep bacteria out of his urinary tract (due to his service-connected chronic prostatitis) and his other surgical residual problems are the likely cause of his immune deficiency and autoimmune disease.  Id.  He believes the condition was present, but undiagnosed, since service.  Board Hr'g Tr.4-5.

Alternatively, the Veteran feels the condition may have been caused by travel to tropical countries during service, including Thailand and the Philippines.  See 1/8/2002 claim statement.  

The Veteran further contends that the condition may be due to radiation exposure during service aboard a nuclear submarine.  See 2/9/2018 Representative appellate brief.  

Next, the Veteran contends that his blood disorder is secondary to his service-connected residuals of urethral scarring and chronic prostatitis, right kidney nephrolithiasis, and/or any other service-connected disabilities.  See November2013 (VBMS) and March 2014 Letters from Veteran.

Finally, the Veteran submitted a February 2024 private medical opinion explaining that the Veteran developed a blood disorder with associated CFS which was triggered by an in-service surgery.  

Facts

As to CFS, the Veteran's service treatment records (STRs) show that he underwent a right pyelolithotomy and pyeloplasty in April 1979.  A September 1979 Urology follow-up note indicates that the Veteran had allergies to the dye used during the surgery.  STRs also include treatment in February 1988 for symptoms including fatigue.  Outside of the STRs, the available medical records include a private medical record from August 1987 showing complaints of fatigue.  

After service, a May 2002 VA medical record notes a history of CFS.  CFS was diagnosed at VA in March 2004.  

As summarized in the February 2024 private medical opinion, the Veteran contends that he had a blood transfusion during the April 1979 procedure, which triggered his symptoms.  The February 2024 private provider observed that there were no records documenting a blood transfusion.  However, the provider found that the Veteran unquestionably received a general anesthetic for the procedure.  Overall, the February 2024 provider opined that the Veteran met the diagnostic criteria for CFS.  The provider also opined that the general anesthesia he most definitely received during the 1979 procedure was, as likely as not, the trigger for the development of the condition.  The provider found no evidence to suggest an infectious cause, and the provider found it unlikely he required a blood transfusion at that time.  The provider offered a rationale for this condition, including an explanation that the years it took before symptoms of CFS became clinically apparent and was supported by medical literature.  

As to a blood disorder, with regard to the current disability element, the Veteran was seen in August 1987 for various complaints, such as fatigue, sleepiness, and low-grade fevers.  The impression was fatigue of questionable etiology, possibly secondary to work or viral infection.  In February 1988, he was seen for complaints of fatigue and lymphadenopathy.  He reported being in good health until that late July and early August, when he developed lymphadenopathy with fatigue, night sweats, recovered with sleep and rest
 transfusion at that time.  The provider offered a rationale for this condition, including an explanation that the years it took before symptoms of CFS became clinically apparent and was supported by medical literature.  

As to a blood disorder, with regard to the current disability element, the Veteran was seen in August 1987 for various complaints, such as fatigue, sleepiness, and low-grade fevers.  The impression was fatigue of questionable etiology, possibly secondary to work or viral infection.  In February 1988, he was seen for complaints of fatigue and lymphadenopathy.  He reported being in good health until that late July and early August, when he developed lymphadenopathy with fatigue, night sweats, recovered with sleep and rest, but he then became ill again when returned to home port, and had extensive work-up that was negative.  He complained that since then he had had minor episodes in December.

In October 2002, laboratory work showed elevated liver function testing, but the Veteran's provider could not find a reason for this elevation.  In March 2004, the Veteran was diagnosed with CFS.  A July 2005 VA examination concluded that there was no definitive diagnosis of a blood disorder at that time.

The Veteran continued to seek treatment for his complaints.  In April 2007, an Allergy and Immunology consultation resulted in a diagnosis of possible conversion reaction as it was found he did not have a history of any immune deficiency or repeated significant infections, and he had satisfactory physical examination, so it was determined he did not present a good history for any immune problem.  In August 2007, he expressed his belief that he had been misdiagnosed, so requested referral to a specialist.  On follow-up with VA Allergy and Immunology in August 2007, it was found he had IgM decrease secondary to some other source.  A September 2007 consultation with VA Hematology and Oncology found his laboratory results were not suggestive of any specific disease.  In December 2007, it was found he may have conversion reaction, but there was no clear evidence of an autoimmune process.  A further consultation with VA Rheumatology in March 2008 resulted in an assessment that he did not have lupus, a connective tissue disorder, or any diagnosable condition, although he did have some abnormalities, including elevated anti-nuclear antibodies.  A private (non-VA) Hematology consultation in November 2008 noted his report of continued, many infections; further testing was recommended.

At a university hospital in March 2009, the Veteran was assessed as having quantitative defect of immune system, etiology unknown, with inability to pinpoint any certain diagnosis.  Upon consultation with a different university hospital in April 2009, it was noted he appeared to have an undifferentiated connective tissue disease, but did not meet the criteria for lupus.  It was recommended he be evaluated further by Immunology.  Follow-up lab testing in May 2009 showed borderline low IgG3 subclass deficiency of unknown significance.  On return to the private university in November 2009, it was noted he had undifferentiated connective tissue disease, and mild IgG III deficiency with no clinical correlation to his symptoms.

The Veteran underwent a further evaluation with VA Rheumatology in December2011, which resulted in a diagnosis of (1) undifferentiated connective tissue disease; (2) lymphopenia, mildly abnormal bone marrow biopsy; and (3)`mild low IgM/IgG 3 subclass, which could be related to (2).  It was observed that he had not manifested a clear immune deficiency subtype and had not garnered a more specific diagnosis despite having seen multiple immunologists.  It was also observed that his disease was mild enough with not enough specific manifestations to classify him as systemic lupus erythematosis.

Next, in September 2012, a private provider made a diagnosis of probable mild systemic lupus erythematosus (SLE) manifested by polymorphous light eruption, persistent positive ANAs, and hypocomplementemia; prior hypocellular marrow may have also been an autoimmune disease manifestation.  This provider felt there was no reason for further testing.  

The Veteran nonetheless continued to seek further treatment and undergo work-ups for his condition.  In February 2016, a VA allergist observed that the Veteran had a history of common variable immunodeficiency (CVID), although based on the available data, the provider could not definitively diagnosis this condition.  The provider recommended further evaluation by a facility with expertise in complex immunologic cases.  This same allergist in May 2016 cited an email exchange with a consulting Immunologist Program of the Immune Deficiency Foundation.  It stated that "I would not apply the diagnosis of CVID, although some would. I think it would be best to
 an autoimmune disease manifestation.  This provider felt there was no reason for further testing.  

The Veteran nonetheless continued to seek further treatment and undergo work-ups for his condition.  In February 2016, a VA allergist observed that the Veteran had a history of common variable immunodeficiency (CVID), although based on the available data, the provider could not definitively diagnosis this condition.  The provider recommended further evaluation by a facility with expertise in complex immunologic cases.  This same allergist in May 2016 cited an email exchange with a consulting Immunologist Program of the Immune Deficiency Foundation.  It stated that "I would not apply the diagnosis of CVID, although some would. I think it would be best to refer to him as unspecified hypogammaglobulinemia for the moment."  It was agreed to have him evaluated further at a tertiary center.

Most recently, a February 2021 VA Hematology and Oncology consultation again observed that his precise diagnosis was unclear, and levels were only mildly low.  It was observed that it was not clear that the Veteran had any defined hematologic disorder and his condition appeared to be more associated with rheumatology/allergy/immunology.  

In the February 2024 opinion, the private provider summarized the Veteran's diagnosis as CVID, with other diagnoses including acquired hypogammaglobulinemia and lymphopenia, systemic lupus erythematosus (SLE), and undifferentiated connective tissue disease (UCTD).  

In regard to an in-service incurrence or aggravation of a disease or injury, the Veteran's STRs show that he underwent a right pyelolithotomy and pyeloplasty in April 1979.  The STRs also show that, prior to the procedure, the Veteran was seen in February1978 for complaints of a history of fever and malaise without localizing symptoms; the assessment was viral syndrome.  In January 1981, he underwent a submarine/radiation examination, which found leukopenia, very mild.  It was found that, in light of a recent one-week history of upper respiratory infection and viral syndrome, this white blood cell count was most likely due to an often found transient suppression of white count during viral illness.  

As to the nexus element, VA examiners in July 2007, January 2013, and November 2017 addressed this question, but came to a negative conclusion regarding the relationship between the Veteran's condition and service.  

The February 2024 provider offered the opinion that the hematologic/ immunologic deficiencies documented throughout the Veteran's medical record, including SLE, UCTD, acquired hypogammaglobulinemia and CVID, were, in fact, more likely than not associated with the development of CFS.  In support, the provider noted recent medical research showing that these findings are found in patients with CFS.  The provider further cited research indicating that patients with a primary antibody deficiency (PAD) disorder, such as CVID, have significant issues with fatigue.  The provider cited a 2020 study, which stated, "many of our patients with PAD have significant chronic fatigue," which condition "has similarities to that seen in patients with CFS," and "was particularly prevalent in patients with CVID."  The provider concluded that the Veteran's hematologic/ immunologic deficiencies and CFS were "linked to one another."  The provider went on to observe, "exposure to an anesthetic agent triggered the development of [CFS] and the associated hematologic/immunologic deficiens documented in [the Veteran's] medical record."  

Analysis

The Board finds that this evidence establishes current disabilities and in-service incurrences for the two claimed disabilities.

As to a nexus, the Board now finds the February 2024 private medical opinion to be persuasive for both the CFS and blood disorder claims.  The Board can find no reason to call into question or otherwise discount the probative weight of the private provider's opinion.  The opinion is probative because it was based on a review of the relevant medical history and provides explanations that contain clear conclusions and supporting data.  Moreover, the provider's explanation is understandable, and all inferences appear to follow from the facts and information given.  See Monzingo v Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board is mindful that the private provider's opinion is somewhat unclear.  It indicates that the Veteran's blood disorder is "associated with" and "linked to" CFS.  A correlation between a service-connected disability and a secondary condition is not sufficient evidence to establish secondary service connection as a causation or aggravation relationship is required. 
 supporting data.  Moreover, the provider's explanation is understandable, and all inferences appear to follow from the facts and information given.  See Monzingo v Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board is mindful that the private provider's opinion is somewhat unclear.  It indicates that the Veteran's blood disorder is "associated with" and "linked to" CFS.  A correlation between a service-connected disability and a secondary condition is not sufficient evidence to establish secondary service connection as a causation or aggravation relationship is required.  A mutual relationship or some degree of correspondence that is not based on causation or aggravation is not sufficient to meet the requirements of § 3.310.  Harvey v. Shulkin, 30 Vet. App. 10, 20 (2018).  

Here, it is not clear if the private provider is asserting a causation relationship or simply a correlation.  However, the provider also observed that the Veteran's in-service surgery triggered the developed of CFS and the associated blood disorder.  This opinion tends to indicate both that the in-service surgery caused, at least in part, the eventual development of the blood disorder, but also that the CFS was a further triggering event for the blood disorder.  

Overall, after resolving reasonable doubt in the Veteran's favor, the Board finds that the private provider's opinion establishes a nexus to service for CFS, and also a nexus to service and a secondary nexus to the service-connected CFS for the blood disorder.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Accordingly, the Board concludes that the criteria for service connection are met for both claims.  Thus, service connection is warranted for CFS and a blood disorder, variously diagnosed as CVID, acquired hypogammaglobulinemia and lymphopenia, SLE, and UCTD.

Other Development

On appeal to the Court, the parties to the April 2023 JMR agreed that a November 2017 VA examination opinion was inadequate to resolve the claim.  The parties remanded the matter with directions for the Board to obtain a new VA opinion.  The Board now finds that remand for a new opinion is not necessary.  More recently, as described above, the Veteran submitted the private provider's opinion from February 2024, and the Board finds that this private opinion adequately addresses the deficiencies in the VA examination.

TDIU

In August 2023, the Board issued a Legacy decision denying a total disability rating based on individual unemployability due to service-connected disability (TDIU).  The Docket Search database on the website of the Court does not show that the Veteran appealed the August 2023 Board decision.  In the March 2024 legal brief, the Veteran's attorney representative requested the Board to remand the TDIU claim if the Board grants service connection for CFS.  However, a TDIU issue is not currently pending as a component of the service connection claims on appeal and was addressed separately in the aforementioned Legacy decision.  The Veteran may pursue a TDIU as a downstream issue once the corresponding rating 

decision is issued implementing the Board's instant decision.  Should TDIU still be sought and not granted, an appeal may be submitted at that time.

 

 

APRIL MADDOX

Acting Veterans Law Judge

Board of Veterans' Appeals

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

 

 

RYAN T. KESSEL 

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Bosely, 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.