Veteranclaims’s Blog

June 26, 2020

Single Judge Application; “Generally speaking, a veteran of the Persian Gulf War may be entitled to VA benefits on a presumptive basis if she exhibits a ‘qualifying chronic disability’ that manifests to a certain degree before December 31, 2021, and that cannot be attributed to any known clinical diagnosis.” Atencio v. O’Rourke, 30 Vet.App. 74, 80 (2018); A qualifying chronic disability includes a “medically unexplained chronic multisymptom illness”—or MUCMI—”that is defined by a cluster of signs or symptoms.” 38 U.S.C. § 1117(a)(2)(B); Additionally, a MUCMI must lack “conclusive pathophysiology or etiology.” 38 C.F.R. § 3.317(a)(2)(ii);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3994
ANDREW C. WETZEL II, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Andrew C. Wetzel II served in the Marine Corps and deployed to Southwest
Asia. Under special rules, Gulf War veterans such as Mr. Wetzel who have been diagnosed with
chronic fatigue syndrome during or after service are automatically entitled to VA disability
compensation for that condition on a presumptive basis. The Board, however, denied Mr. Wetzel’s
claim without contesting that he served in the Gulf War or had a valid diagnosis of chronic fatigue
syndrome.
On appeal, the veteran argues that his chronic fatigue syndrome diagnosis per se entitles
him to compensation under applicable VA regulations. The Secretary suggests that the claim
should be remanded for the Board to cure insufficiencies in the statement of reasons or bases
underlying its decision and to obtain an adequate medical opinion. However, because the
undisputed facts and dispositive law establish the veteran’s entitlement to the benefit sought, the
Court reverses the Board’s denial of service connection for chronic fatigue syndrome and remands
the matter for further proceedings consistent with this opinion.
While a member of the Marine Corps Reserve, Mr. Wetzel was activated in 2004 and again
in 2009 to support Operations Noble Eagle and Enduring Freedom. R. at 451, 462. His service
took him to Iraq and Kuwait—in VA parlance, Southwest Asia. In 2013, he sought service
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connection for Epstein-Barr virus and chronic fatigue syndrome. A VA examiner confirmed a
diagnosis of chronic fatigue syndrome that produced debilitating fatigue, generalized muscle aches
and weakness, headaches, sleep disturbances, and forgetfulness. R. at 541-42. These symptoms,
the examiner indicated, were “nearly constant” and “restrict[ed] routine daily activities to 50% to
75% of the pre-illness level.” R. at 542. The VA regional office denied both claims because there
was no medical evidence linking the conditions to service.
Mr. Wetzel appealed and, in 2015, the Agency obtained medical opinions on a series of
questions. In response to VA’s questions, the examiner opined that the veteran had a diagnosis of
chronic fatigue syndrome that was separate and distinct from Epstein-Barr virus; that neither
condition was caused by in-service tick bites, sinusitis, or otitis; and that, because of significant
overlap, symptoms attributable to chronic fatigue syndrome could not be differentiated from
symptoms attributable to Epstein-Barr virus without resorting to speculation. R. at 266-68. (More
about this below.)
The Board issued the decision under review in April 2019. (It denied disability
compensation for Epstein-Barr virus and granted it for a post-hernia surgical scar; Mr. Wetzel
doesn’t raise any argument as to either of these claims, so the Court doesn’t address them. See
Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).) After determining that service
connection for chronic fatigue syndrome wasn’t warranted on a direct basis, the Board turned to
38 C.F.R. § 3.317. This regulation permits the award of disability compensation on a presumptive basis for certain medically unexplained chronic multisymptom illnesses, conditions “without conclusive pathophysiology or etiology.” 38 C.F.R. § 3.317(a)(2)(ii) (2019). But the Board
concluded that, because the 2015 examiner opined that “some of the [v]eteran’s chronic fatigue symptoms are due to Epstein-Barr virus,” chronic fatigue syndrome had “partially understood etiology and pathophysiology” and thus Mr. Wetzel couldn’t benefit from this presumptive
provision. R. at 8. This appeal followed.
“Generally speaking, a veteran of the Persian Gulf War may be entitled to VA benefits on a presumptive basis if she exhibits a ‘qualifying chronic disability’ that manifests to a certain degree before December 31, 2021, and that cannot be attributed to any known clinical diagnosis.” Atencio v. O’Rourke, 30 Vet.App. 74, 80 (2018). A qualifying chronic disability includes a “medically unexplained chronic multisymptom illness”—or MUCMI—”that is defined by a cluster of signs
or symptoms.” 38 U.S.C. § 1117(a)(2)(B). Additionally, a MUCMI must lack “conclusive
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pathophysiology or etiology.” 38 C.F.R. § 3.317(a)(2)(ii).
“Chronic multisymptom illnesses of
partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will
not be considered medically unexplained.” Id. These criteria set forth the overall framework by
which VA determines whether a condition is a MUCMI. See Atencio, 30 Vet.App. at 80-82.
But Congress also specified “three conditions that qualify per se as MUCMIs.” Id. at 81.
These are “chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.” 38 U.S.C.
§ 1117(a)(2)(B); accord 38 C.F.R. § 3.317(a)(2)(ii)(B). In other words, chronic fatigue syndrome
is one of the “conditions that automatically qualify as a MUCMI.” Atencio, 30 Vet.App. at 81. VA
has also acknowledged this fact. See Compensation and Pension Provisions of the Veterans
Education and Benefits Expansion Act of 2001, 68 Fed. Reg. 34,539, 34,540 (June 10, 2003) (“VA
has not identified any illness other than the three identified in section 202(a) as a ‘medically
unexplained chronic multisymptom illness,’ and we therefore specify in new § 3.317(a)(2)(i)(B)(1)
through (3) only chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome as
currently meeting this definition.” (emphasis omitted)).
The Court reviews the Board’s decision to deny service connection for clear error. Overton
v. Wilkie, 30 Vet.App. 257, 266 n.63 (2018). Mr. Wetzel asserts that the Board decision must be
reversed. The Court agrees. In a case “where the Board has performed the necessary fact-finding
and explicitly weighed the evidence,” this Court “should reverse when, on the entire evidence, it
is left with the definite and firm conviction that a mistake has been committed.” Deloach v.
Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). The Court is left with no doubt that the Board
committed clear error in denying service connection for chronic fatigue syndrome.
First, Mr. Wetzel is a Persian Gulf veteran. R. at 462; see 38 U.S.C. § 1117(f); 38 C.F.R.
§ 3.317(a)(1), (e). Second, and most importantly, he has an undisputed diagnosis of chronic fatigue
syndrome. See R. at 7; Secretary’s Br. at 2. And the medical evidence specifies that this condition
has manifested to a compensable degree following service, as a 40% rating is warranted for
cognitive impairments, debilitating fatigue, or “a combination of other signs and symptoms” that
“are nearly constant and restrict routine daily activities from 50 to 75 percent of the pre-illness
level.” 38 C.F.R. § 4.88(b), Diagnostic Code 6354 (2019); see R. at 541-42. As the statutes,
regulations, and caselaw make clear, “VA will pay compensation” in these circumstances.
38 C.F.R. § 3.317(a)(1).
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The Board’s denial of compensation was based on a questionable reading of the law and,
in any event, an incorrect interpretation of the record. It found that the 2015 examiner said that
“some of the [v]eteran’s chronic fatigue symptoms are due to Epstein-Barr virus,” meaning that it
had “partially understood etiology and pathophysiology” and therefore couldn’t be a qualifying
chronic disability. R. at 8. Since Congress and VA recognize that chronic fatigue syndrome
qualifies as a MUCMI “automatically,” or “per se,” Atencio, 30 Vet.App. at 81, once that condition
is clearly diagnosed as such, further inquiry into its etiology or pathophysiology would seem
unnecessary.
Irrespective of this legal question, however, the medical evidence here did not purport to
link chronic fatigue syndrome etiologically or pathophysiologically to Epstein-Barr virus. The
examiner noted that Epstein-Barr virus “was diagnosed in the process of working up [symptoms]
consistent with” chronic fatigue syndrome and that the two diseases “have a significant [symptom]
overlap.” R. at 267. Given this overlap, she could not “delineate which [symptoms] are due to
which condition without resorting to speculation” and opined that “some” of Mr. Wetzel’s chronic
fatigue symptoms were “due to” Epstein-Barr virus. Id. As the context makes clear, the examiner
was simply stating that some of the symptoms ascribed to chronic fatigue syndrome could just as
easily be attributed to Epstein-Barr virus. But that is not the same as opining that chronic fatigue
syndrome itself stems from the Epstein-Barr virus. The medical examiner never said this. With a
chronic fatigue syndrome diagnosis established, and that diagnosis entitled to presumptive service
connection, the issue of which symptoms should be deemed chronic fatigue symptoms relates not
to the condition’s origin but to the appropriate rating to assign. (In that context, when the effects
of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt
requires that the signs and symptoms should be attributed to the service-connected disability.
Mittleider v. West, 11 Vet.App. 181, 182 (1998).)
Having fully reviewed the record and the governing law, the Court concludes that the Board
clearly erred in denying compensation under § 3.317. Accordingly, the Court REVERSES the
Board’s April 25, 2019, denial of service connection for chronic fatigue syndrome and REMANDS
this claim for the Agency to assign the appropriate effective date for the award of compensation
and the proper disability rating.
DATED: June 25, 2020
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Copies to:
Andrew C. Wetzel II
VA General Counsel (027)

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