Citation Nr: 1040541 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 09-15 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness. 2. Entitlement to service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness. 3. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine. 4. Entitlement to a separate compensable rating for any neurologic manifestations, such as upper extremity radiculopathy, of degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2010, the Veteran and his wife testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to a separate compensable rating for any neurologic manifestations of degenerative disc disease of the cervical spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. (CONTINUED ON FOLLOWING PAGE) FINDINGS OF FACT 1. A February 2004 rating decision, which denied service connection for fatigue, claimed as due to an undiagnosed illness, is final. 2. The evidence associated with the claims file subsequent to the February 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for fatigue, claimed as due to an undiagnosed illness, and raises a reasonable possibility of substantiating the claim. 3. The Veteran served on active duty in Southwest Asia during the Persian Gulf War. 4. The Veteran's claimed fatigue is a manifestation of his service-connected fibromyalgia and is specifically included in the rating criteria used for the evaluation of that disorder. 5. The evidence of record does not show that the Veteran's cervical spine disability was manifested by forward flexion of less than 15 degrees, or ankylosis, or incapacitating episodes of a total duration of at least four weeks but less than six weeks during the past 12 months CONCLUSIONS OF LAW 1. Evidence received since the final February 2004 determination wherein the RO denied the Veteran's claim for service connection for fatigue, claimed as due to an undiagnosed illness, is new and material and the Veteran's claim for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2010). 2. The criteria for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2010). 3. The criteria for a disability rating in excess of 20 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5237 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in letters from the RO dated in October 2007 and August 2008. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. Thereafter, the claims were reviewed in a supplemental statement of the case issued in November 2009. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Court recently in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in the October 2007 correspondence. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. Given the favorable determination reached in this decision regarding the submission of new and material evidence to reopen the claim for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of whether new and material evidence has been submitted to reopen the claim for service connection for chronic fatigue syndrome. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1692 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. The duty to assist also has been fulfilled as private and VA medical records relevant to these matters have been requested or obtained and the Veteran was provided with VA examinations. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. New and Material Evidence The Veteran seeks service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness. The RO previously considered and denied a claim for service connection for fatigue, claimed as due to an undiagnosed illness, in a February 2004 rating decision. The Veteran did not perfect his appeal of this decision and, as such, it has become final. 38 U.S.C.A. § 7103(a); 38 C.F.R. §§ 20.302, 20.1103. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The claim for service connection for fatigue, claimed as due to an undiagnosed illness, was formerly denied in a February 2004 rating decision as the RO found that the evidence established that any fatigue disability resulted from poor sleep due to sleep apnea, a diagnosed disorder that was not shown in service. At the time of the February 2004 rating decision the evidence of record consisted of service treatment records; private medical evidence, in particular from his physician, B.R.P., M.D., dated from November 1997 to October 2003; and reports of VA examinations dated in October and November 2003. Not all of this evidence pertained to the Veteran's claim for service connection for chronic fatigue syndrome. Subsequently associated with the claims file after the February 2004 rating decision were VA treatment records dated from June 1993 to November 1993, from October 1998 to November 1998, and from May 2000 to October 2009; private medical evidence dated in April 2007; correspondence from Dr. B.R.P. dated in March 2009 to the effect that after extensive testing he had concluded that the Veteran's symptoms of fatigue and tiredness were not identified with any medical condition and were due to chronic fatigue syndrome; additional correspondence dated in October 2009 from Dr. B.R.P. that the Veteran's fatigue "may have some association" with exposure to chemicals in the Gulf War; other reports of VA examinations conducted in June 2005 (and an addendum dated in September 2006), April 2008, and January 2009, including the opinion of the latter examiner that the Veteran had a diagnosis of fibromyalgia but did not have a diagnosis of chronic fatigue syndrome; transcripts of the Veteran's September 2004 and April 2010 Board hearings; and copies of written submissions from the Veteran and his representative. Portions of the additional evidence submitted subsequent to February 2004 pertained to the Veteran's other claims for compensation. The evidence submitted subsequent to the February 2004 rating decision is new, in that it was not previously of record and is also material. As noted above, the claim was initially denied as the RO found that the evidence established that any fatigue disability resulted from poor sleep due to sleep apnea, a diagnosed disorder that was not shown in service. Subsequent to the final February 2004 decision, correspondence received from the Veteran's private physician, Dr. B.R.P., showed a separate finding of chronic fatigue syndrome and Dr. B.R.P.'s medical opinion that the Veteran's chronic fatigue syndrome might be associated with his exposure to chemicals in the Persian Gulf War. The RO was not clear when it reopened the Veteran's claim why it had done so. Having done so, however, the Veteran was provided a VA examination in January 2009. The January 2009 VA examiner failed to diagnose chronic fatigue syndrome. Thus, it appears that the RO had reopened the claim due to Dr. B.R.P.'s correspondence and opinions. The Board too finds such evidence sufficient to reopen the Veteran's claim in this case. Presumed credible, the additional evidence received since the February 2004 rating decision reflects that the Veteran has been diagnosed with chronic fatigue syndrome and that this disability is related to service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Therefore, the evidence submitted since the final February 2004 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is reopened. Service Connection - Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish direct service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection also may be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for (1) a Persian Gulf Veteran who (2) exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; which (3) became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See 71 Fed. Reg. 75669, 75672 (Dec. 18, 2006); 38 C.F.R. § 3.317(a)(1); see also see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a). "Objective indications of chronic disability include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical, indicators that are capable of independent verification." 38 C.F.R. § 3.317(a)(2). Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Chronic Fatigue Syndrome The Veteran maintains that he has suffered from fatigue since some time after discharge from service and, in essence, contends that his fatigue is service-related. There is no dispute that the Veteran served in the Southwest Asia theater of operations, though his DD Form 214 does not provide the exact dates of this foreign service. However, it discloses that he received the Southwest Asia Service Medal and the Saudi Arabia Kuwait Liberation Medal. Information in the claims file and from the Veteran's testimony indicates that he served in the Southwest Asia theater from December 1990 to March or April 1991. Service treatment records reveal that while stationed in Germany in March 1990 the Veteran was seen for complaints of general weakness and malaise that he said had lasted for four weeks. The examiner noted an unknown illness or weakness of unknown etiology and counseled a balanced diet and proper rest at night. No further mention of such complaints is found in the service treatment records. A discharge examination is not found in the claims file. Post-service, an October 1998 Persian Gulf registry document noted that the Veteran was an anti-tank crewman while in Southwest Asia and was the headquarters platoon sergeant for a tank company. No headaches or fatigue symptoms were noted on the registry documents. A May 2000 VA medical record revealed that the Veteran was seen for complaints of fatigue and dry skin with itching on his back. He was assessed with fatigue. Lifestyle changes were discussed, including exercise and regular sleep periods. Private medical records dated from November 1997 to October 2003 indicate that he was treated for sleep apnea in 2003, but had difficulty tolerating the CPAP mask used in treatment. They also show treatment in 2003 for intermittent headaches. The examiner noted possible migraine or tension headaches or exposure to toxins at work. In a June 2003 letter, Dr. B.R.P., the Veteran's private physician, noted that he had treated the Veteran since April 1998 for multiple problems, including urticaria, visual abnormality, an episode of paresthesia of unknown etiology, multiple upper respiratory tract infections, headaches, and chronic fatigue and tiredness. It was noted that the Veteran was diagnosed with sleep apnea. The Veteran underwent a VA examination in October 2003. The Veteran complained of sleep disturbances and that he had stopped using a CPAP machine for sleep apnea. He also complained of chronic fatigue, occasional headaches, occasional numbness in his forearms, occasional itching and occasional neck and back pain that he ascribed to two motor vehicle accidents in service. On examination, no obvious skin lesions, flaking or scaling were found. Normal muscle movement was noted and neurologic examination revealed no sensory or motor abnormalities. The examiner noted that the Veteran's diagnosed sleep apnea could explain his feelings of chronic fatigue and that he was not currently complaining of headaches. It also was noted that the Veteran worked at a zinc plant. In February 2004 the Veteran was seen at a VA clinic for excessive daytime sleepiness. His diagnosis of sleep apnea by a local physician and a private 2003 sleep study were noted. An April 2007 private medical record revealed that the Veteran was treated by Dr. B.R.P. for fatigue which apparently was getting worse. While the Veteran averaged 7 to 8 hours of sleep per night, he often woke up after only 1 to 2 hours. He denied associated symptoms such as anxiety or depression. Assessment was chronic fatigue syndrome with fibromyalgia listed as a differential diagnosis. Provigil was prescribed. VA medical records dated in February 2008, April 2008, May 2008 and June 2009 noted that the Veteran continued to have persistent chronic fatigue. It was noted that the etiology was undetermined and that the Veteran's work-up had been unrevealing. The examiner wrote in June 2009 that he had nothing further to offer the Veteran at this time. In January 2009 the Veteran underwent a VA Gulf War examination for a chronic multi-system disorder. The Veteran complained of occasional generalized muscle aches, occasional sleep disturbance, and frequent headaches. The examiner noted no debilitating fatigue, that fatigue did not last 24 hours or longer after exercise, and that no routine daily activities were restricted due to fatigue. It was noted that the Veteran worked full-time in a zinc plant for between five to 10 years and had lost no time from work during the past year. The VA examiner did not believe that the Veteran had chronic fatigue syndrome, but did diagnose fibromyalgia with episodic unexplained fatigue, sleep disturbance, headache, and musculoskeletal symptoms. No skin abnormalities or neurologic deficits of the extremities were noted. The VA examiner opined that muscle pain, sleep disturbance and fatigue were at least as likely as not caused by or a result of the Veteran's fibromyalgia. In a January 2009 rating decision, the Veteran was granted service connection for fibromyalgia and awarded a 10 percent disability rating, effective April 30, 2007. In correspondence dated in March 2009, Dr. B.R.P. noted that he had treated the Veteran for more than seven years during which time the Veteran had progressively developed more fatigue and tiredness and was constantly lethargic. He described extensive medical testing and a diagnosis of sleep apnea and wrote that he had not been able to identify any medical condition that might cause the Veteran's chronic fatigue. He concluded that the Veteran's symptoms were due to chronic fatigue syndrome and prescribed Provigil for daytime fatigue. In correspondence dated in October 2009, Dr. B.R.P. noted that the Veteran continued to feel fatigued and tired, continued to have insomnia, and was now compliant with the CPAP machine. The physician noted no improvement in symptoms and opined that the Veteran now suffered from depression in addition to chronic fatigue syndrome. Dr. B.R.P. also opined that the Veteran's symptoms "may have some association" with the Veteran's inservice exposure to chemicals during the Gulf War. During his Board hearing, the Veteran testified that he wore a mock uniform most of the time he was stationed in Southwest Asia because of smoke and cloudy conditions, including burning oil wells and the threat of chemical attacks. He said that he did not suffer from fatigue during service, but years after service sought treatment from his private doctor. He also testified that he did not think sleep apnea was causing his fatigue. His wife testified that the Veteran was tired a lot and got irritable. (See transcript at pp. 3-6, 8). Based on the evidence of record, the Board finds that service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is not warranted. Under 38 C.F.R. § 3.317(b)(1), fatigue is identified as being a sign or symptom that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multi symptom illness. In this case, the record contains a diagnosis of chronic fatigue syndrome by the Veteran's private physician in 2003. Even so, the correspondence of Dr. B.R.P. indicates that he could not identify any known medical condition that caused the Veteran's post- service fatigue. Here, the greater weight of the evidence of record indicates that the Veteran's fatigue is a manifestation of fibromyalgia, as explained by the January 2009 VA examiner, who diagnosed fibromyalgia and not chronic fatigue syndrome. The Board notes that the VA rating criteria found under Diagnostic Code 5025 used to rate fibromyalgia recognizes associated fatigue and sleep disturbance as components of fibromyalgia. In essence, since fatigue has been attributed to a known clinical diagnosis of fibromyalgia, this precludes entitlement to service connection for fatigue as a separate disorder on a presumptive basis under 38 C.F.R. § 3.317. As explained by the RO in the January 2009 rating decision, the Veteran's subjective symptoms of sleep disturbance, fatigue, headaches, and widespread musculoskeletal pain and tender points are the manifestations which support the assignment of a 10 percent rating for fibromyalgia under Diagnostic Code 5025. Hence, chronic fatigue represents a symptom which is specifically included in the enumerated rating criteria for fibromyalgia. To the extent that fatigue has been complained of or otherwise documented, the Board finds that this is part and parcel of the Veteran's service-connected fibromyalgia. Accordingly, service connection is not warranted on an independent basis in this case for chronic fatigue syndrome. Essentially, to the extent that any such manifestations exist, these symptoms are attributable to a known clinical diagnosis of fibromyalgia which is service-connected; as such, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. To the extent that the claim is for an undiagnosed illness, it is one as to which there is no legal entitlement. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to the theory of direct service connection, see Combee, 34 F.3d at 1042, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. Even though the Board finds the Veteran's testimony about his symptoms of fatigue credible, the Court has held in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. Here, it has already been established that fatigue is part and parcel of the Veteran's service connected fibromyalgia. Accordingly, service connection for chronic fatigue syndrome on a direct basis also is not warranted. Thus, the preponderance of the evidence is against the claim for service connection for chronic fatigue syndrome and, therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Rating - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2010). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms, but not the clinical findings which are applied to VA's Rating Schedule. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2010). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2010). Cervical Spine Historically, service connection for degenerative disc disease of the cervical spine was granted in a February 2007 rating decision which awarded a 10 percent disability rating, effective August 26, 2002. The Veteran filed his current claim for an increased disability rating in April 2007. During the course of the appeal, in a January 2009 rating decision, the RO increased the disability rating from 10 percent to 20 percent, effective April 30, 2007. The Veteran essentially contends that his service- connected cervical spine disability is more severe than indicated by the 20 percent disability rating granted him. The Veteran's cervical spine disability is rated under Diagnostic Code 5237 for cervical strain. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2010). Cervical spine disabilities are rated on the basis of limitation of motion, with ratings assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedular criteria indicates that, for VA compensation purposes, normal forward flexion of the cervical spine is from 0 to 45 degrees, extension from 0 to 45 degrees, left and right lateral flexion from 0 to 45 degrees, and left and right lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71a. In the alternative, a rating can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Diagnostic Codes 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine assigns ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A disability rating of 30 percent is warranted upon a showing of favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine of 15 degrees or less. A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. A November 2007 VA medical record noted that the Veteran had a long standing history of chronic cervical pain, but the Veteran said that this was now well-controlled after a private physician prescribed Celebrex. Full range of motion of the neck was noted. The Veteran underwent a VA examination in April 2008. The Veteran complained that stiffness and neck pain had worsened during the past year. He said pain was worse in the morning and that it radiated into the right arm and into the index finger causing numbness and tingling. The examiner noted no cervical spine ankylosis or incapacitating episodes. Range of motion of the cervical spine measured as follows: flexion to 25 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 40 degrees. Pain was noted with both active and passive range of motion. No additional limitation of motion was noted due to repetitive use. X-ray studies showed mild spondylosis at several levels without evidence for any acute osseous abnormality. Diagnosis was degenerative cervical spondylosis at C4-C7 with mild stenosis and right C6 radiculopathy. Mild and moderate effects were noted for the Veteran's usual daily activities. A June 2009 VA medical record noted that the Veteran was seen at a clinic for exacerbation of neck muscle pain. It had recurred for the past two weeks. The pain increased when he tried to raise his arms above his head. A private magnetic resonance imaging (MRI) scan of the cervical spine done in 2008 showed C5- 6, C7-T1 spondylitic disc changes with osteophyte formation with mild neuroforaminal stenosis bilaterally and small posterior disc protrusion at C6-7 with facet degenerative changes at C6-7 and C5-6. While tenderness of the neck muscles was noted, the examiner found no jugular venous distention. Degenerative joint disease of the cervical spine was assessed and the Veteran was referred to physical therapy. The Veteran underwent a VA Gulf War examination in January 2009. The examiner noted no neurologic deficits. During his April 2010 Board hearing, the Veteran testified that he could not move his head more than 25 or 35 percent one way or the other without pain. He said it felt like he had a "hitch" in his neck that was caught when he turned. He said that he could bend down, but that it hurt to lift his head up. (See transcript at pp. 10-11). Based on the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran's degenerative disc disease of the cervical spine is not warranted. The medical evidence of record does not show that his service-connected neck symptoms meet the criteria for the next higher, or 30 percent rating. A disability rating of 30 percent is warranted upon a showing of favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine of 15 degrees or less. None of the medical evidence of record during the appeal period found the Veteran to have forward flexion of 15 degrees or less. Additionally, the April 2008 VA examiner did not find ankylosis of the cervical spine. With respect to intervertebral disc syndrome, under Diagnostic Code 5243, based on incapacitating episodes, a 40 percent rating, which is the next higher rating possible after the 20 percent rating, would require incapacitating episodes of a total duration of at least four weeks but less than six weeks during the past 12 months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. No evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for his service-connected neck disability. There is also no evidence that the Veteran was ever hospitalized for this disability. It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). According to the April 2008 VA examiner, while pain was noted with both active and passive range of motion, no additional limitation of motion was measured with repetitive use. The Board finds that there is little evidence of functional impairment as a result of cervical spinal symptomatology, and any such impairment was contemplated by the RO when granting the 20 percent disability rating. In this regard, the record does not indicate any findings of a loss of range of motion during the appeal period to warrant an increase from 20 percent. The Board also must evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. Under Note 1 of the General Rating Formula, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. As explained below in the Remand section, the Veteran should be provided a further VA examination to determine whether the C6 radiculopathy noted during the April 2008 VA examination entitles the Veteran to a separate rating for radiculopathy or peripheral neuropathy of the upper extremities. As noted above, the Veteran is competent to report his symptoms relating to his cervical spine. The Board is aware of the Veteran's assertions as to stiffness or a "hitch" in his neck, radiating neck pain, and difficulty in raising his arms above his head. The Board has considered the Veteran's assertions, and finds they are credible or persuasive regarding possible upper extremity neuropathy or radiculopathy. To that extent, the matter of a possible separate rating is being remanded for further development as noted below. However, his contentions as to stiffness do not support his claim for a higher rating for his service-connected neck disability in view of the objective medical evidence found on VA examination, such as range of motion, which does not meet the diagnostic criteria for a rating in excess of 20 percent. To the extent that the Veteran has asserted that he warrants a higher rating for his neck disability, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim for a disability rating in excess of 20 percent for his service- connected degenerative disc disease of the cervical spine is denied. The Board also should consider, under Hart v. Mansfield, 21 Vet. App. 505 (2007), whether a staged rating is appropriate. The possibility of an assignment of a separate rating for any neuropathy or radiculopathy as the result of the Veteran's cervical spine disability is being remanded back to the RO for additional evidentiary development. Otherwise, the evidence of record does not indicate the Veteran's entitlement to a higher schedular rating for his neck disability during the period on appeal. Finally, the disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture for his neck could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal and the possibility of assignment of a separate rating for neuropathy or radiculopathy of the upper extremities will be remanded for development. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's neck disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. ORDER New and material evidence having been submitted, the claim for service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is reopened. To this extent and to this extent only, the appeal is granted. Service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is denied. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine is denied. REMAND Unfortunately, a remand is required for the remaining issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c) (2010). During his April 2008 VA examination of the cervical spine disability, the Veteran complained of pain radiating into his right arm and index finger causing numbness and tingling. The VA examiner diagnosed degenerative cervical spondylosis at C4-C7 with mild stenosis and right C6 radiculopathy. The physician- examiner noted that stenosis was affecting the musculocutaneous nerve to the biceps muscle; however, neurologic results showed what appeared to be normal sensory and motor functions for the upper extremities. In June 2009 at a VA clinic, the Veteran complained of increased pain when he tried to raise his arms above his head. At present, VA lacks sufficient information to determine whether the Veteran is entitled to a separate rating for an objective neurologic abnormality secondary to the Veteran's service- connected degenerative disc disease of the cervical spine. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. A remand is required in this case primarily to request additional evidentiary development. Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to verify the current severity of his C-6 radiculopathy and facilitate analysis under the rating criteria applicable in this matter, possibly Diagnostic Code 8510 for rating the peripheral nerves of the upper radicular fifth and sixth cervicals. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2010). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will review the Veteran's claims file and shall take such additional development action as it deems proper with respect to a separate rating for any neurologic manifestations of degenerative disc disease of the cervical spine, including notification of the information and evidence needed to substantiate such claim under the Veterans Claims Assistance Act of 2000 (VCAA). 2. The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of any right and left sided neuropathy or radiculopathy of the upper extremities, to include that which may be affected by the musculotaneous nerve to the biceps muscle, as identified by the April 2008 VA examiner. The Veteran's claims folder shall be furnished to the examiner, who shall indicate in the examination report that he or she has reviewed the claims file. Any tests or studies deemed necessary by the examiner shall be conducted. All findings shall be reported in detail. The examiner shall identify all residuals attributable to the Veteran's service-connected cervical spine disability, to include any muscle, orthopedic, or neurological residuals. In this regard, when determining the extent of the Veteran's right and left sided neuropathy or radiculopathy of the upper extremities, the examiner shall identify the nerve or nerves affected, and determine whether the Veteran has complete paralysis, incomplete paralysis, neuritis, or neuralgia of a peripheral nerve in conjunction with his service-connected cervical spine disability. If the examiner finds that the Veteran has incomplete paralysis of a peripheral nerve, then he or she should make a specific finding as to whether that incomplete paralysis is best described as mild, moderate, or severe, describing the symptomatology associated therewith. The examiner shall also specifically discuss the severity of any muscle impairment and residuals thereof, and identify all of the muscle groups involved. The examiner shall also state whether there are any orthopedic residuals, such as limitation of motion, associated with the Veteran's service- connected cervical spine disability, and identify the specific joints involved. 3. When the development requested has been completed, the issue should be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs