Citation Nr: 1031982 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 04-35 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. What evaluation is warranted for chronic fatigue syndrome from July 14, 2000? 2. What evaluation is warranted for sinusitis from July 14, 2000? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from May 1995 to June 1999. A subsequent period of Air National Guard service is also reported. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision by the Department of Veterans (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a July 2007 travel Board hearing. In November 2007, the Board remanded the claims for further development. A request to reopen a claim of entitlement to service connection for deep vein thrombosis, post phlebitis syndrome with systemic vasculitis, been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Since July 14, 2000, the Veteran's chronic fatigue syndrome has not been manifested by any period of incapacitation or by symptoms that require control by continuous medication. 2. Since July 14, 2000, the Veteran's sinusitis has been manifested by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. Since July 14, 2000, the criteria for a compensable rating for chronic fatigue syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R.§§ 3.159, 4.88b, Diagnostic Code 6354 (2009). 2. Since July 14, 2000, the criteria for a 10 percent rating for sinusitis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.7, 4.97, Diagnostic Code 6512 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Factual Background In May 2003, the RO granted service connection for chronic fatigue syndrome and sinusitis as a result of anthrax vaccinations. In an August 2000 VA outpatient treatment report, the Veteran complained of fatigue, somnolence and of postnasal drip with yellowish sputum. He was concerned about his fatigue. On examination, the post pharynx was minimally congested. There was no lymphadenopathy. There was no sinus tenderness. On VA examination in November 2000, the Veteran reported that he was fatigued on an ongoing basis. He stated that he sleeps 12 hours a day and that he wakes up tired. He was diagnosed as having chronic fatigue, secondary to the anthrax vaccination. In an April 2001 medical summary from Walter Reed Hospital, it was noted that the Veteran had chronic fatigue with the onset temporally associated with the anthrax vaccination. The Veteran reported increased sleep from five to ten hours to feel refreshed. He was able to work a full day and exercise. He was also noted to have an episode of clinical sinusitis with treatment following the anthrax vaccination. He experienced bloody purulent nasal drainage for several days. In a March 2002 clinical summary from Walter Reed Hospital, it was noted that the Veteran had chronic fatigue temporally associated with the anthrax vaccination. It was reported that the Veteran slept poorly and that he felt tired all the time. With regard to sinusitis, it was noted that the Veteran had daily problems with congestion, postnasal drip and sore throat. A CT scan of the sinuses conducted in April 2001 was negative. On VA examination in August 2002, the Veteran complained of chronic fatigue. The examiner noted, however, that the Veteran presented as an unusually lively, energetic and productive young man. An April 2001 CT scan of the sinuses was negative. In a May 2003 VA outpatient treatment report, the Veteran reported a two month history of sinus congestion with clear nasal discharge tinged with blood. He reported that Nasonex was not helping and that the drainage in this throat was making it difficult for him to sleep at night. He also reported having severe headaches over his eyes. Examination revealed that the nasal mucosa was hyperemic, inflamed and friable with copious clear discharge and tinges of blood. He was diagnosed as having chronic allergic rhinosinusitis and prescribed with Chlorpheniramine, Sudafed and Nasalcrom. In an August 2003 VA outpatient treatment report, it was noted that in May 2003, the Veteran had presented to the emergency department with what appeared to be acute sinusitis. He was treated with nasal inhalers and had satisfactory relief. The Veteran reported that subsequent to that visit, he has not had any symptoms and his sinuses are clear. He did not have any new complaints. He reported no fevers, chills or shortness of breath. He continued to maintain a fairly active lifestyle. He exercised regularly. In an April 2004 VA outpatient treatment report, the Veteran reported that he continues to experience daytime fatigue with difficulty sleeping. He also reported that Fluinsolide inhaler dramatically helped with a recent sinus infection. A history of undergoing a sleep study, being diagnosed with sleep apnea, and being prescribed a continuous positive airway pressure machine was noted. On VA examination for chronic fatigue syndrome in June 2004, the Veteran reported problems staying awake and with drowsiness while trying to do activities that are not particularly active. He denied muscle aches or weakness. He denied fatigue for 24 or greater hours after periods of exercise. He denied migrating joint pains. He did not have a decrease in his work less than 50 percent of what his previous levels have been. He was currently employed and he continued to work full weeks of eight to nine hours a day. He reported that since he has problems with fatigue, he used two to three weeks of sick leave per year. Despite his complaints of fatigue, he was able to exercise at night, which he reported help him sleep. He also stated that he was able to sleep approximately eight hours a night, although this was somewhat interrupted by tossing and turning. The diagnosis was chronic fatigue syndrome. The examiner commented that despite the Veteran's complaints, he was functioning at an extremely high level with constant good performance levels and consistently high recommendations from his supervisors per his own report. He was able to exercise on a regular basis without significant episodes. He did not have fevers, aches, weakness or fatigue for 24 or greater hours after exercise. It was opined that his pharyngitis and headaches were related to his sinus condition. He had one episode of lymphadenopathy and his sleep disturbances were more likely related to his current evaluation so possible sleep apnea. Therefore, the examiner concluded that the Veteran did not meet the current criteria for a diagnosis of chronic fatigue syndrome. On VA examination for sinusitis in June 2004, the Veteran reported that he had been treated very successfully in the past with Flonase, Chlorpheniramine and Cromolyn. He reported using Flonase on a daily basis. He denied any sinus surgery or treatment with antibiotics for a sinus infection. Examination revealed that his tympanic membranes were clear and mobile bilaterally. Nasal examination revealed a midline nasal septum with a moderate amount of intranasal edema. There were no polyps or discharge. The diagnosis was allergic rhinitis that was well treated with a topical nasal steroid. The examiner opined that the Veteran's sleep disorder remained obscure and in all likelihood was not related to service. In a January 2005 VA outpatient treatment report, the Veteran complained of head congestion and two weeks of intermittent pain behind the right eye and latter throughout the day with unilateral nasal tearing. He reported that his sinus symptoms started about three to four months ago, with irregular nasal steroid use. Examination revealed no sinus tenderness. The diagnosis was chronic sinusitis with likely acute recurrent bacterial sinusitis. The examiner doubted cluster or other headache etiology. At a July 2007 Board hearing, the Veteran testified that he was currently employed but that due to his chronic fatigue syndrome, he experienced daytime drowsiness. He denied being bedridden due to the chronic fatigue syndrome. With regard to his sinusitis, the Veteran reported that a couple of times a year he had very bad sinus infections and that he experienced flare-ups during the springtime. He reported that he experienced flare-ups three to four times a year and that he usually had to see a physician for treatment. The Board remanded the case in November 2007 to afford the Veteran further VA examinations. In a July 2008 VA outpatient treatment report, the Veteran reported having sinus problems. He stated that approximately eight to ten days prior he had a sore throat then the next day he had sinus drainage through the nose that with thick and yellow. In a November 2008 VA outpatient treatment report, the Veteran complained of monthly sinus symptoms for which he used a nasal steroid for one to two days. In a December 2008 statement, the Veteran reported that he had frequent and ongoing sinusitis symptoms for which the VA has prescribed a daily nasal steroid. In a February 2009 VA outpatient treatment report, the Veteran reported that for the past four days he had been experiencing significant nasal congestion and headaches. He reported that he frequently had "sinus infections" a few times a year, usually in the fall and spring. He stated that he took nasal steroids when he got congested. He also reported a cough, congestion and purulent nasal discharge. In a February 2009 addendum, it was noted that the Veteran had been prescribed Augmentin and Sudafed. At a VA examination in March 2010, the Veteran reported that he was placed on a nasal steroid. He denied surgery or hospitalization due to his sinusitis. He reported that he has no restrictions at work but he has missed seven days of work over the past year. He denied any purulent drainage or being placed on oral antibiotics. He reported having mucous and yellow discharge in the mornings. He reported that he has bouts of sinusitis on a monthly basis which lasts for about a month. He indicated that the disorder was aggravated in early January and the spring and relived with a nasal saline wash. He denied any incapacitating episodes per year. With regard to chronic fatigue syndrome, the examiner noted that since the 2002 examination, the Veteran has had fewer symptoms. He did not have any restrictions at work. He was not taking any medications. There was no acute onset of the condition. He did not experience any fevers or exudative pharyngitis. He denied any generalized muscle aches or weakness or headaches. There were no joint pains. Examination revealed a normal oropharynx with erythema of nasal turbinates. There was a slight deviation towards the left nostril but no malocclusion or obstruction. The assessment was chronic sinusitis and chronic fatigue syndrome with no residuals. Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Chronic Fatigue Syndrome Since July 14, 2006, the Veteran's chronic fatigue syndrome has been appropriately rated as noncompensable under 38 C.F.R. § 4.88b, Diagnostic Code 6354. In order to warrant a 10 percent rating, the evidence must show signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or symptoms controlled by continuous medication. A Note to Diagnostic Code 6354 provides that, for the purpose of rating 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. The Board finds, after reviewing the entire record, that the evidence shows that the criteria for a compensable rating under Diagnostic Code 6354 are not met. There is no medical evidence of periods of incapacitation, treatment or medication for chronic fatigue syndrome. Although there is evidence of a constant general feeling of tiredness experienced by the Veteran, the evidence does not demonstrate any incapacitating episodes, consisting of physician prescribed bed rest for at least one week per year. As such, a higher rating is not warranted for any portion of the rating period. No other relevant diagnostic codes are for application. Accordingly, a compensable disability rating for chronic fatigue is not warranted from July 14, 2000. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Sinusitis The Veteran's sinusitis is rated noncompensably under Diagnostic Code 6512, effective July 14, 2000. Sinusitis is evaluated under the General Rating Formula for Sinusitis. A noncompensable evaluation is assigned for sinusitis that is detected by an x-ray examination only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. An incapacitating episode is one which requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.97, Code 6512. After considering all the evidence of record, the Board finds that, after resolving reasonable doubt in the appellant's favor, that the overall disability picture for the Veteran's sinusitis most closely approximates a 10 percent disability rating since July 14, 2000. In this case, the Veteran's sinusitis is manifested by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. VA treatment records show that the Veteran has been seen on several occasions for recurrent sinusitis with symptoms such as headaches, sinus pain and pressure, congestion, and mucosal thickening. Furthermore, the Veteran provided testimony that he experiences bad sinus infections a couple of times a year with three to four flare-ups during the springtime. As such, the Board finds that the evidence most nearly approximates a 10 percent disability rating for sinusitis since July 14, 2000. Consideration has been given to whether a rating higher than 10 percent disabling for the Veteran's sinusitis is warranted. The Veteran has reported that he has been treated for his sinusitis on many occasions, but has also clarified that he experiences flare-ups in the springtime. There is also evidence that he was prescribed with antibiotics on one occasion. Significantly, there is no evidence that the Veteran has experienced any incapacitating episodes, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, as is required for a 30 percent disability rating. Extra-Schedular Consideration The symptoms presented by the Veteran's chronic fatigue syndrome and sinusitis are fully contemplated by the rating schedule. There is no evidence that his disability picture is exceptional when compared to other Veterans with the same or similar disabilities. There is no evidence that the claimant's chronic fatigue syndrome or sinusitis at any time during the appellate term necessitated frequent hospitalization, or that either disability has caused a marked interference with employment. Thus, the Board finds no evidence to indicate entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Since July 14, 2000, a compensable evaluation is not warranted for chronic fatigue syndrome. Since July 14, 2000, a 10 percent evaluation is warranted for sinusitis, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs