UNDIAGNOSED ILLNESSES

D. JOHNSON · 2026 · Case ID: 26004983

DENIED

Summary

The veteran, who served from November 1975 to November 1978 and January 1979 to April 1994, appeals the denial of service connection for chronic fatigue syndrome (CFS) and sleep apnea. The Board previously denied service connection for CFS, which was appealed to the Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Partial Remand (JMPR) led to the claim being returned to the Board for further development. The Board recharacterized the issue to include sleep apnea, as the record reasonably raised this claim. The Board applied the three-element test for service connection, noting that VA regulations define CFS and require exclusion of other conditions with similar symptoms. Service treatment records were silent for CFS, sleep apnea, and related symptoms during service. While later treatment records showed complaints of fatigue, snoring, and sleep issues, an overnight sleep study in October 2008 did not meet the criteria for obstructive sleep apnea. A later study in November 2016 diagnosed moderate obstructive sleep apnea. However, the Board found no competent evidence of a current CFS diagnosis, as fatigue symptoms were attributed to other conditions like HIV, lung cancer, and COPD, and the exclusion criteria under 38 C.F.R. § 4.88(a) were not met. The Board also found the veteran's lay statements regarding CFS and sleep apnea etiology to be incompetent. The Board denied service connection for sleep apnea due to lack of in-service nexus and inconsistent contemporaneous statements. The veteran failed to attend scheduled VA examinations without good cause, and the Board decided the claim based on available evidence. Service connection for CFS and sleep apnea was denied.

Rationale

No competent evidence of current CFS diagnosis; Exclusion of other conditions not met; Fatigue symptoms attributed to other diagnoses (HIV, lung cancer, COPD); Severity criteria not met; Lay statements regarding CFS diagnosis are incompetent

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-18 684A

Full Decision Text

Citation Nr: 26004983
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 19-18 684A
DATE: April 28, 2026

ORDER

Entitlement to service connection for a disability manifested as chronic fatigue, to include chronic fatigue syndrome (CFS) and sleep apnea, is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran has a diagnosis of CFS.

2. The evidence of record persuasively weighs against finding that the Veteran's diagnosed sleep apnea began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for a disability manifested as chronic fatigue, to include CFS and sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.88a.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from November 1975 to November 1978 and from January 1979 to April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

A June 2023 Board decision denied, in pertinent part, entitlement to service connection for chronic fatigue syndrome. The Veteran appealed the Board's denial of this issue to the United States Court of Appeals for Veterans Claims (Court). An October 2024 Order of the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's decision as to entitlement to service connection for chronic fatigue syndrome, and returned the claim to the Board.

The Board remanded the appeal for development in April 2025; there has been substantial compliance with the remand directives.

Entitlement to service connection for a disability manifested as chronic fatigue, to include CFS and sleep apnea

In his February 2017 VA Form 21-526, the Veteran sought service connection for chronic fatigue syndrome and chronic pain. In his May 2017 notice of disagreement, he asserted that his chronic pain affected his sleep.

In the Aril 2025 remand, the Board agreed with the parties' stipulation in the JMPR that the record reasonably raised a claim for service connection for sleep apnea. The Board has thus recharacterized the issue on appeal as shown above, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

VA regulations define a diagnosis of chronic fatigue syndrome. 38 C.F.R. § 4.88a. Under this regulation, a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (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: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38 C.F.R. § 4.88(a).

Service treatment records are silent for complaints, diagnosis or treatment for sleep apnea, chronic fatigue symptoms and/or CFS. For example, the September 1978, November 1982, and September 1986 examinations were free of abnormalities related to sleep or fatigue. In addition, the Veteran denied having had frequent trouble sleeping in the January 1978, September 1978, and November 1982 Reports of Medical History.
lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38 C.F.R. § 4.88(a).

Service treatment records are silent for complaints, diagnosis or treatment for sleep apnea, chronic fatigue symptoms and/or CFS. For example, the September 1978, November 1982, and September 1986 examinations were free of abnormalities related to sleep or fatigue. In addition, the Veteran denied having had frequent trouble sleeping in the January 1978, September 1978, and November 1982 Reports of Medical History. In the January 1994 retirement Report of Medical History, the Veteran denied having frequent trouble sleeping, despite endorsing other symptoms. The January 1994 retirement medical examination was normal for all relevant systems.

A July 2007 mental health record shows that after separating from service in April 1994, the Veteran reported having some difficulty sleeping through the night and averaging only two to three hours of sleep. Medical records dated in October 2007 August 2008, and September 2008 show the Veteran was sent by the sleep clinic for consultation as to possible sleep disorders. The Veteran reported snoring, fatigue, insomnia, and a history of nightmares and depression. The initial impression indicated that a primary diagnosis of obstructive sleep apnea was favored based on history and examination. An October 2008 overnight sleep study did not, however, meet the diagnostic criteria for obstructive sleep apnea.

Although a medical history of sleep apnea was noted in December 2008, there was no sleep study indicative of sleep apnea until late 2016. In the leadup to this diagnosis, an August 2016 treatment record noted a long history of snoring and poor sleep quality and anatomy which put him at risk for sleep apnea. In the September 2016 treatment record, the Veteran reported sleep complaints, snoring, sleepiness during the day, dry throat, and postnasal drip, waking up choking, and nodding off while driving. He indicated that he has had sleep problems for 25 years (1991-during service). The assessment included insomnia, restless leg syndrome, and obstructive sleep apnea, with a recommendation for sleep study. The recommended sleepy study was undertaken in November 2016, which noted a diagnosis of moderate obstructive sleep apnea/ hypopnea.

Although the Veteran's treatment records show occasional complaints related to fatigue, they do not include a diagnosis of CFS. In a November 2016 mental health follow up, the Veteran was noted to have a diagnosis of chronic obstructive pulmonary disorder and awaiting the results of his sleep study. The Veteran was noted to have increased fatigue and somnolence, not explained by depression. See also September 2019 statement (noting that the Veteran had lung cancer with associated dyspnea and fatigue). In an October 2021 infectious disease follow-up related to his diagnosed HIV, the Veteran was noted to have a history of recurrence of lung cancer and weight loss, anorexia and fatigue.

Upon review, the Board concludes that service connection is not warranted for sleep apnea or CFS.

The Veteran has a current diagnosis of sleep apnea, but not a diagnosis of CFS.

Regarding CFS, the JMPR noted that a diagnosis of chronic fatigue requires consideration of 38 C.F.R. § 4.88(a). As noted above, this regulation directs that a diagnosis of CFS requires, among other things, the exclusion, by history, physical examination and laboratory tests, of all other clinical conditions that may produce similar symptoms.

In this case, there is no competent evidence of a current CFS diagnosis, even after considering 38 C.F.R. § 4.88(a). The medical records show that an exclusion of all other clinical conditions that may produce similar symptoms has not occurred. Rather, as noted in this decision, the Veteran's reported fatigue symptoms are attributable to other disorders, as well as other diagnoses of HIV, lung cancer, and COPD. Moreover, there was no showing that the disability was severe enough to reduce daily activities to less than 50 percent of the usual level, or additional symptoms contemplated under the regulation. A diagnosis of CFS has not been shown in the current treatment records, to include as contemplated under 38 C.F.R. § 4.88(a).

In reaching this conclusion, the Board has considered the lay statement of record. However, the Veteran is not reporting a lay observable diagnosis, as CFS requires medical expertise to discern the diagnosis among many diagnoses capable of producing similar symptomatology. The Veteran has not been shown to
fatigue symptoms are attributable to other disorders, as well as other diagnoses of HIV, lung cancer, and COPD. Moreover, there was no showing that the disability was severe enough to reduce daily activities to less than 50 percent of the usual level, or additional symptoms contemplated under the regulation. A diagnosis of CFS has not been shown in the current treatment records, to include as contemplated under 38 C.F.R. § 4.88(a).

In reaching this conclusion, the Board has considered the lay statement of record. However, the Veteran is not reporting a lay observable diagnosis, as CFS requires medical expertise to discern the diagnosis among many diagnoses capable of producing similar symptomatology. The Veteran has not been shown to have the training, education, or experience to qualify as a medical expert. 38 C.F.R. § 3.159(a)(1). Thus, he is a lay witness and not competent to opine on the diagnosis of chronic fatigue. Accordingly, the Board finds his basic assertion is not competent to establish the existence of the disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Regarding the current diagnosis of sleep apnea, this disorder was not shown in service and there is no competent medical evidence which supports a causal relationship with the Veteran's military service.

The Veteran is not competent to opine as to the etiology of his sleep apnea. The Board has considered the Veteran's statements, including those in treatment records, that he has had sleep problems for 25 years, or during service. However, the etiology of sleep apnea is complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of symptomatology not entirely or wholly capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Because of its complexity, the etiology of sleep apnea is outside the competency of lay persons like the Veteran in this case. Moreover, the Veteran's recent statements that he has had symptoms since service are inconsistent with his contemporaneous statements during service. In those statements, including the 1994 report of medical history, the Veteran denied frequent trouble sleeping. Given the above reasons, the Board gives no weight to the Veteran's statements that his currently diagnosed disabilities are related to service.

There is no other competent or persuasive medical evidence that the Veteran's sleep apnea is related to military service.

Pursuant to the JMPR, the Board remanded the claim in April 2025 for additional development. In particular, the Board directed the AOJ to send the Veteran a VA Form 21-4142 authorizing VA to obtain non-VA records; invite the Veteran to submit all non-VA sleep studies; obtain scanned VISTA imaging from Pulmonary and Sleep Medicine Consultants; obtain records of VA vocational rehabilitation treatment; and schedule the Veteran for a VA examination.

Upon remand, the AOJ obtained records from the Pulmonary and Sleep Medicine Consultant. In addition, the AOJ sent the Veteran a VA Form 21-4142 in April 2025, July 2025, and November 2025 to allow VA to obtain any non-VA records, as well as correspondence inviting him to submit any non-VA sleep study in June 2025. In addition to the VA vocational rehabilitation records already in the claims file, the AOJ made an attempt to locate any additional records in September 2025. In a February 2026 report of general information, the Veteran indicated that he had received the VA 21-4142 and did not complete the form because he did not have no additional records in relation to this claim. As discussed below, additional steps were undertaken to schedule the Veteran for an examination. Overall, the Board finds that there was substantial compliance with its prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Board notes that the AOJ was previously directed to schedule a VA examination to clarify the Veteran's CFS and determine the etiology of his sleep apnea. Upon remand, the Veteran was scheduled for an examination in August 2025 and February 2026. The Veteran failed to appear for these examinations.

The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where there is a failure to report to an examination scheduled in conjunction with the service connection claim, without good cause, it may result in denial of the claim. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). To date, the Veteran has not submitted evidence or correspondence indicating that there was good cause for why he failed to appear.

The Veteran has also not indicated that he did not receive notice of these examinations. The Board notes that July 2025 VA treatment records indicated that the Veteran was "busy moving to another location." However, the correspondence informing the Veteran of his examinations was sent to him at the [REDACTED] Street address. This mail was not returned as undeliverable. Mail addressed to the Veteran approximate to the dates of the examinations have not been returned. He has also confirmed this address in separate communications with VA. In the February 2026 report of general information, the Veteran acknowledged that he received the January 2026 correspondence (sent to the [REDACTED] Street address), and the [REDACTED] Street address was confirmed at that time. See also February 2026 report of non-receipt of payment. Overall, there is no evidence that the Veteran did not, in fact, receive notice of these examinations. Because the Veteran has failed to cooperate with VA's attempts to develop the claim for service connection without good cause, the Board must decide the claim based on the evidence currently available.

The evidence of record persuasively weighs against the claim, including a current diagnosis of CFS and a causal relationship between the currently diagnosed sleep apnea and the Veteran's military service. As such, the benefit of the doubt doctrine does not apply because the relevant evidence is not in approximate balance. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Thus, service connection for a disability manifested as chronic fatigue, to include CFS and sleep apnea, is denied.

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Vuong, Kanha

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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