Citation Nr: 1404018 Decision Date: 01/29/14 Archive Date: 02/10/14 DOCKET NO. 09-00 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for chronic fatigue syndrome (CFS) prior to August 7, 2012. 2. Entitlement to an initial evaluation in excess of 40 percent for CFS from August 7, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active military service from February 2000 to September 2005. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, which granted service connection for CFS and assigned an evaluation of 10 percent. In an August 2012 rating decision, the evaluation was increased to 40 percent effective August 7, 2012. The Veteran and her spouse appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) at the RO in October 2009. A transcript of that proceeding has been associated with the claims file. This claim was previously before the Board in September 2010 and July 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. Prior to August 7, 2012 the Veteran's CFS resulted in periods of incapacitation of at least two but less than four weeks total duration per year. 2. Since August 7, 2012 the Veteran's CFS has been constant and characterized by restriction of routine daily activities by 50 to 75 percent of the pre-illness level. CONCLUSIONS OF LAW 1. Prior to August 7, 2012, the criteria for an initial evaluation of 20 percent, but no higher, for CFS were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.88b, Diagnostic Code 6354 (2013). 2. From August 7, 2012, the criteria for an initial evaluation in excess of 40 percent for CFS have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.88b, Diagnostic Code 6354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has met its duty to notify for this claim. Service connection for the issues on appeal was granted in an August 2008 rating decision. The Veteran is now appealing the downstream issue of the initial ratings that were assigned. Therefore, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of her claim. This duty includes assisting her in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of her post-service private medical treatment. The Veteran was afforded a VA compensation and pension examination germane to her claim on appeal. The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim for an increased evaluation for CFS. The representative asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered her symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Evaluations for Chronic Fatigue Syndrome Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2013). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2002). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2013). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2013). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 6354 provides that CFS includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 20 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for signs and symptoms of CFS that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A Note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b. At August 2007 VA rheumatology treatment the Veteran reported daily fatigue that made working and taking care of her children difficult. She was taken trazodone for difficulty sleeping with some benefit. The Veteran said at December 2007 VA rheumatology treatment that she had fatigue all of the time and expressed frustration with the lack of improvement in treatment. She had stopped taking trazodone because of side effects and was to continue cyclobenzaprine. At a May 2008 VA mental health examination the Veteran reported being tired and fatigued all of the time and that she was too tired to do activities with her children. The Veteran had a VA examination in July 2008 at which she estimated missing five days of work in the past six months due to various muscle and joint pains and headaches. She missed other days due to medical appointments, and when away from work she was fairly sedentary and took naps. She had recently tried to exercise and had increased muscle and joint pain for three days afterwards. The Veteran was diagnosed with chronic fatigue syndrome. The examiner felt that the Veteran's sleep disturbance, migratory joint and muscle pain, headaches, and fatigue lasting more than 24 hours after exercise were related to this. The Veteran testified at the October 2009 Board hearing that chronic fatigue syndrome caused tiredness, flu-like symptoms, body aches and yeast infections. She had trouble staying awake during the day and took Provigil for daytime sleepiness. The Veteran further testified that she had missed two weeks of work in the past six months and could not do as much with her children. The Veteran wrote in a December 2009 statement that she was tired and irritable all of the time and had trouble with her memory. During the year to date she had taken 232.5 hours of leave from her job due to fatigue and medical treatment. A private family physician examined the Veteran in April 2010 and wrote on a Department of Labor Family of Medical Leave Act report that the Veteran had episodes of increased depression and fatigue and that she would be incapacitated for two to three days a month. In November 2010, the VA examiner from a previous examination for fibromyalgia wrote that the Veteran's exercise ability was decreased 50 to 75 percent from pre-illness level but that amount of restriction of daily activities due to CFS was speculative due to the overlap of CFS and depression symptoms. It was also noted that most patients with depression had decreased concentration. The Veteran had a VA examination in February 2012, and the examiner opined that continuous medication was not needed for control of CFS. Symptoms of CFS that were present were debilitating fatigue, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, headaches, migratory joint pains, neuropsychological symptoms, and sleep disturbance. The symptoms waxed and waned and restricted routine daily activity by less than 25 percent of the pre-illness level. The examiner felt that the CFS did not result in periods of incapacitation and did not impact the Veteran's ability to work. The Veteran had private rheumatology treatment for CFS in March 2012 at which she was advised to continue taking cyclobenzaprine. She complained of morning stiffness, joint pain, muscle weakness, muscle tenderness, generalized weakness, fatigue, dryness of the eyes, nausea, abdominal cramps, diarrhea alternating with constipation, depression, trouble sleeping, intermittent numbness and tingling in the hands, and headaches. Sometimes she was not able to push open a door due to weakness in the wrists, and during a recent episode of shoulder weakness she could not lift her purse. At April 2012 follow up treatment the Veteran reported severe fatigue, and the dosage of cyclobenzaprine was increased. A co-worker of the Veteran wrote in April 2012 that the Veteran continuously complained of not having energy and muscle aches and pains. The Veteran wrote in April 2012 that CFS symptoms interfered with her job due to problems with memory and the need to take time off. In reviewing the record prior to August 7, 2012, probative value cannot be given to the February 2012 examiner's finding that the Veteran did not require continuous medication for CFS because the treatment records discussed above show that she has been prescribed medication for it. In addition, probative value cannot be given to the examiner's finding that the CFS did not result in cognitive impairment given the Veteran's numerous and credible complaints of forgetfulness, memory loss, inability to concentrate, and mental confusion. The examiner also wrote that the Veteran's CFS had not resulted in periods of incapacitation but did not discuss the Veteran's reports of the time she had missed from work and the April 2010 physician's report. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning" and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007) (A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record.). The Board finds that the Veteran is entitled to an evaluation of 20 percent prior to August 7, 2012 for CFS. The April 2010 physician's report stated that the Veteran would be incapacitated for two to three days a month. This is the equivalent two to four weeks total duration per year, which meets the criteria for a 20 percent evaluation. See 38 C.F.R. § 4.88b, Diagnostic Code 6354. The Veteran did not qualify for a 40 percent evaluation, the next highest available after 20 percent, prior to August 7, 2012, because the record does not show symptomatology that was nearly constant and restricted daily activities 50 to 75 percent of the pre-illness level or symptoms that waxed and waned resulting in periods of incapacitation of at least four but less than six weeks total duration per year. See 38 C.F.R. § 4.88b, Diagnostic Code 6354. While the VA examiner wrote in November 2010 that the Veteran's exercise ability was decreased 50 to 75 percent from pre-illness level, the examiner felt it would be speculative to assign a percentage of restriction of daily activities due to CFS because of the overlap of CFS and depression symptoms. In addition, the Veteran has reported periods of incapacitation of four to six weeks per year, but the record does not show that a physician found that her CFS required bed rest for this length of time. Therefore, she was not entitled to an evaluation of 40 percent prior to August 7, 2012. See id. The Veteran had another VA examination on August 7, 2012 at which she reported being currently depressed and having memory problems, including not being able to remember the details of a relationship with a friend. She had a lot of fatigue and decreased energy. Medications that the examiner felt were required for control of CFS were armodafinil, desvenlafaxine, and cyclobenzaprine. Findings, signs and symptoms attributable to chronic fatigue syndrome were debilitating fatigue, low grade fever, nonexudative pharyngitis, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, and sleep disturbance. Cognitive impairments attributable to CFS were poor attention, inability to concentrate, and forgetfulness. The symptoms waxed and waned. The examiner felt that the Veteran's CFS symptoms restricted routine daily activities to 50 percent to 75 percent of the pre-illness level. The total period of incapacitation over the past 12 months had been less than one week. The Veteran does not qualify for a 60 percent evaluation, the next highest available, from August 7, 2012. The August 2012 VA examiner did not feel that the Veteran's CFS symptoms restricted routine daily activities to less than 50 percent of the pre-illness level or that there were periods of incapacitation of at least six weeks total duration per year. Furthermore, the record does not otherwise show that the Veteran met those criteria. Therefore, he does not qualify for a 60 percent evaluation from August 7, 2012. See 38 C.F.R. § 4.88b, Diagnostic Code 6354. In light of the holding in Fenderson, the Board has considered whether the Veteran is entitled to additional "staged" ratings for her service-connected CFS, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's CFS in that it is manifested by restriction in routine daily activities. No exceptional or unusual disability picture is demonstrated. The rating criteria are therefore adequate and referral for consideration of extraschedular rating is not warranted. Finally, the Board need not determine whether a total disability rating based on individual unemployability (TDIU) is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. In order to remand such a claim, however, there must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. at 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the April 2012 letter from a coworker indicates that the Veteran was employed. Prior statements from the Veteran also indicate that she was employed. While the record shows some interference with her job due to service-connected disabilities, there is no cogent evidence of unemployability, and further consideration of a TDIU is not warranted. ORDER An evaluation of 20 percent, and no greater, for CFS is granted prior to August 7, 2012. An evaluation in excess of 40 percent for CFS is denied from August 7, 2012. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs