Citation NR: 9801156 Decision Date: 01/15/98 Archive Date: 01/28/98 DOCKET NO. 93-11 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for chronic fatigue syndrome for the period from January 25, 1990 to November 28, 1994, evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for chronic fatigue syndrome for the period beginning November 29, 1994, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and husband ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran served on active duty from June 1978 to December 1982. This case is before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which assigned a 10 percent evaluation for chronic fatigue syndrome, effective from January 25, 1990. In doing so, the RO evaluated the veteran's chronic fatigue syndrome by analogy to brucellosis, pursuant to 38 C.F.R. Part 4, Diagnostic Code 6316 (1991). A June 1995 rating decision confirmed the 10 percent evaluation for chronic fatigue syndrome, but additionally considered Diagnostic Code 6354, chronic fatigue syndrome, which became effective November 29, 1994, as well as the old criteria. An August 1996 rating decision increased the veteran's chronic fatigue syndrome to 40 percent, effective from November 29, 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains, in substance, that the 10 percent evaluation assigned for her chronic fatigue syndrome from January 25, 1990 to November 28, 1994, does not adequately reflect the severity of that disability for that time period. The veteran also asserts that this period of her disability should be evaluated using the Diagnostic Code for chronic fatigue syndrome, not brucellosis. In addition, the veteran contends that the current 40 percent evaluation assigned for her chronic fatigue syndrome does not adequately reflect the severity of that disability. She contends that her chronic fatigue syndrome results in symptoms that wax and wane and result in periods of incapacitation of at least six weeks total duration per year. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record supports an increased evaluation of 30 percent for chronic fatigue syndrome for the period from January 25, 1990 to November 28, 1994. It is further the decision of the Board that the evidence of record supports an increased evaluation of 60 percent for the service-connected chronic fatigue syndrome for the period beginning November 29, 1994. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. During the period from January 25, 1990 to November 28, 1994, the veteran's chronic fatigue syndrome was moderately severe, with depression and fatigability. 3. Since November 29, 1994, the veteran's chronic fatigue syndrome has been characterized by symptoms that wax and wane, resulting in periods of incapacitation of at least six months per year. CONCLUSIONS OF LAW 1. The schedular criteria for a 30 percent evaluation for chronic fatigue syndrome for the period from January 25, 1990 to November 28, 1994, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.88b, Diagnostic Code 6316 (1996). 2. The schedular criteria for a 60 percent evaluation for chronic fatigue syndrome from November 29, 1994, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.88b, Diagnostic Code 6354 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue prior to January 25, 1990. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4 (1996). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating." 38 C.F.R. § 4.7. I. Entitlement to an increased evaluation for chronic fatigue syndrome for the period from January 25, 1990 to November 28, 1994, evaluated as 10 percent disabling. When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. 38 C.F.R. § 4.20 (1996). Under the Rating Schedule, moderate brucellosis, with infrequent febrile episodes, but with fatigability, moderate depression, etc., warrants a 10 percent evaluation. Moderately severe brucellosis, with febrile episodes not more frequently than once in three months, warrants a 30 percent evaluation. Severe brucellosis, with frequent febrile episodes, warrants a 50 percent evaluation. 38 C.F.R. § 4.88b, Diagnostic Code 6316. In assessing the degree of disability attributable to a service-connected disorder, the disorder is viewed in relation to its whole history. 38 C.F.R. §§ 4.1, 4.2; Schafrath 1 Vet. App. 589. Historically, the veteran was granted service connection for chronic fatigue syndrome by a February 1992 Board decision. An April 1992 rating decision implemented the Board’s decision and assigned a 10 percent evaluation for Icelandic syndrome, chronic fatigue syndrome, effective from January 25, 1990. In a July 1990 statement, David L. Hicks, D.O., P.A., reported the veteran had been diagnosed with chronic fatigue syndrome, and that the illness had created a problem with depression that required daily treatment. It was noted that the veteran had previously been seen by other physicians for symptoms other than fatigue. In July 1991, the veteran was hospitalized at a VA medical facility for two days for evaluation of her chronic fatigue syndrome. She complained of recurrent episodes of increased sleep and fatigue at intervals of six to twelve months over the past several years. She also complained of overwhelming tiredness of two months duration, as well as some joint symptoms and paralytic-like symptoms of increased leg weakness. She was not on medication and had no relevant findings noted during the hospital course. The veteran and her husband testified together at October 1990, October 1991 and August 1992 personal hearings. She reported she experienced heart palpitations, respiratory problems, and pain in her legs that prevented her from walking. She also indicated that her fatigue was such that she was nearly unconscious. It was reported that, overall, her illness resulted in a lot of stress, and interfered with her employment and family life. Subsequent to the April 1992 rating decision, the veteran submitted treatment records from Dr. Hicks dated from 1990 to 1995. In a January 1990 statement, Dr. Hicks stated that if the veteran was allowed to work while fatigued, further physical and mental disease could occur. He recommended that she work no more than a forty hour week, and no more than four hours without a break. An August 1992 statement from Dr. Hicks questioned the appropriateness of the veteran's 10 percent evaluation under the Diagnostic Code for brucellosis and outlined general medical distinctions between brucellosis and chronic fatigue syndrome. The examiner reported the veteran’s disease had been periodically under control with frequent medication changes and antidepressant therapy. She reportedly experienced frequent flare-ups exacerbated by stress. Although it was noted that her pregnancy was not a factor to consider when evaluating her chronic fatigue syndrome, Dr. Hicks did point out that the chronic fatigue syndrome was causing problems with the pregnancy. Based on his experience and knowledge of the veteran's illness, Dr. Hicks strongly opined that her disability warranted a 30 percent evaluation under the rating schedule for brucellosis. The claims file contains records of VA outpatient treatment from 1991 to November 28, 1994, showing consistent complaints of and treatment for chronic fatigue syndrome. In addition, the veteran was provided a VA systemic disorders examination in January 1993. She complained of mood swings, forgetfulness, sleepiness, suicidal thoughts, depression, exhaustion, and aches and pains of the legs and lower back. She had an enlarged palpable thyroid gland. The diagnosis included chronic fatigue syndrome by history, enlarged thyroid - diffuse non-toxic goiter or simple colloid goiter, and palpitations probably secondary to chronic fatigue syndrome or nicotine abuse. The veteran was provided additional VA examinations in February 1993. During a systemic conditions examination, the veteran complained of using a great deal of sick time for fatigue. Her fatigue was worsening, she had episodes of extreme muscle weakness, pain, difficulty concentrating, forgetfulness, crying spells, and depression. The final diagnosis was possible chronic fatigue syndrome, suggestive of no other disease; and adjustment disorder with depression. The veteran was also given a hyperthyroidism and thyroid adenoma examination, in February 1993, due to the enlarged thyroid found during the January 1993 VA examination. The veteran complained of symptoms that waxed and waned but had been particularly severe over the prior year, consisting of tiredness, insomnia, depression, aches and pains of her lower extremities, and occasional suicidal ideation. She had rare panic attacks and palpitations. The diagnosis was clinically euthyroid by history and physical examination. Employment records from the veteran's employer, the United States Postal Service Processing and Distribution Center, show that the veteran was absent from work a total of 8.9 weeks in 1991, 24.85 weeks in 1992, 9.7 weeks in 1993, and 14.45 weeks in 1994. Based on the evidence in the claims file, the Board finds that during the period from January 25, 1990, to November 28, 1994, the veteran's chronic fatigue syndrome -more nearly approximated the criteria necessary for a 30 percent evaluation under Diagnostic Code 6316. 38 C.F.R. § 4.7. Significantly, the evidence showed that the veteran's disability affected her employment. Her employment records reveal that she missed a significant amount of work during the period at issue, and Dr. Hicks has stated her disability affected her cognitive abilities. He recommended that her employment duties be limited to forty hour weeks with breaks every four hours. He also asserted that her symptoms warranted a 30 percent evaluation under Diagnostic Code 6316. Further, the medical evidence shows that stress caused flare- ups, and she needed consistent private and VA medical treatment, including medicine and therapy for her depression. The Board has considered but denied a 50 percent evaluation under Diagnostic Code 6316. The veteran has not been shown to have had frequent febrile episodes during the period at issue. Dr. Hicks did not recommend that she work less than a full forty hour week. In finding that the veteran's disability warranted a 30 percent evaluation during the period at issue, the Board concludes that an extra-schedular evaluation is not necessary. There is no indication that the veteran's disability is so unusual or exceptional as to render impractical the application of the regular schedular criteria. The interference with employment caused by the veteran's disability is appropriately considered by a 30 percent evaluation under Diagnostic Code 6316. See 38 C.F.R. § 3.321(b)(1996). II. Entitlement to an increased evaluation for chronic fatigue syndrome for the period beginning November 29, 1994, currently evaluated as 40 percent disabling. Under the rating schedule, chronic fatigue syndrome with symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year warrants a 40 percent evaluation. Chronic fatigue syndrome with symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least six weeks total duration percent year warrants a 60 percent evaluation. Chronic fatigue syndrome with symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care, warrants a 100 percent evaluation. A note provides that for the purpose of evaluating chronic fatigue syndrome, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354. An August 1996 rating decision granted the veteran a 40 percent evaluation for chronic fatigue syndrome, effective November 29, 1994. This decision was based in part on records from the Port Richey, Florida, VA Outpatient Clinic. Statements dated nearly every month from February 1995 to May 1996 reflect that the veteran’s illness limited her to a four day work week. Episodic flare-ups of her chronic syndrome required periodic unscheduled absences. In addition, the claims file contains a copy of an August 1996 letter from the veteran's employer on the subject of “Letter of Warning - Continued Unsatisfactory Attendance.” The letter recounted the veteran's absences from work from October 1995 to January 1996. The veteran missed a total of 160 hours of work. Evidence submitted after the August 1996 rating decision includes a December 1996 statement from Dr. Hicks that the veteran's illness involves periods of acute flare-ups which disabled her from working. A December 1996 VA treatment note provides that the veteran was treated that day for chronic fatigue syndrome, the symptoms of which waxed and waned. A copy of a December 1996 letter from the veteran's employer, also on the subject of “Letter of Warning - Continued Unsatisfactory Attendance,” recounted the veteran's absences from work from late September 1996 to early December 1996. The veteran missed a total of 80 hours of work. Based on the evidence of record, the Board finds that the veteran's chronic fatigue syndrome more nearly approximates the criteria necessary for a 60 percent evaluation under Diagnostic Code 6354. 38 C.F.R. § 4.7. The Board notes that the veteran's symptoms do wax and wane. Considering that she can work only a scheduled four day work week, she has more than ten weeks of scheduled absences a year. She misses many additional days of work due to her disability, to the point that she has received disciplinary warnings. The Board finds that the veteran's total absences constitute more than six weeks of incapacitation for the purposes of a 60 percent evaluation under Diagnostic Code 6354. These absences from work are required specifically to allow the veteran to rest, and are an integral part of her consistent and continuing medical care by VA and private physicians. The Board has considered but denied a 100 percent evaluation under Diagnostic Code 6354. The veteran’s disability has not been shown to be so severe and nearly constant as to restrict routine daily activities almost completely. In spite of her need for continuous medical care and the severity of her symptoms, she is able to work a scheduled four day work week, and can perform her own self-care. In finding that the veteran's disability warrants a 60 percent evaluation, the Board concludes that an extra- schedular evaluation is not necessary. Again, there is no indication that the veteran's disability is now so unusual or exceptional as to render impractical the application of the regular schedular criteria. The marked interference with employment caused by the veteran's disability is appropriately considered by a 60 percent evaluation under section 6354. See 38 C.F.R. § 3.321(b). ORDER Subject to the provisions governing the award of monetary benefits, a 30 percent schedular evaluation for chronic fatigue syndrome for the period from January 25, 1990 to November 28, 1994, is granted. Subject to the provisions governing the award of monetary benefits, a 60 percent schedular evaluation for chronic fatigue syndrome for the period beginning November 29, 1994, is granted. U. R. POWELL Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -