Citation Nr: 1136836 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 05-27 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 40 percent for chronic fatigue associated with multiple sclerosis. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1992 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Jurisdiction of the case was subsequently transferred to the RO in Muskogee, Oklahoma, based upon the Veteran's change in residence. FINDING OF FACT Since the initial grant of service connection, the Veteran's chronic fatigue associated with multiple sclerosis (MS) has been manifested by debilitating fatigue and other symptoms that are nearly constant and restrict routine daily activities to less than 50 percent of his pre-illness level. The Veteran's chronic fatigue associated with MS has not been shown to be nearly constant and so severe as to restrict routine daily activities almost completely and occasionally preclude self care. CONCLUSION OF LAW The criteria for an initial 60 percent evaluation, but no more, for chronic fatigue associated with MS have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim concerning the proper evaluation to be assigned to his service-connected chronic fatigue associated with MS arises from his disagreement with the initial evaluation assigned to this condition following the grant of service connection. Specifically, the Veteran appealed the RO's November 2004 rating decision which granted service connection at a 10 percent initial disability rating for chronic fatigue associated with MS, effective from May 27, 2004. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Most recently, the RO scheduled a VA examination in October 2010 to determine the severity of the Veteran's service-connected chronic fatigue associated with MS. This VA examination was performed by a VA physician that had reviewed the Veteran's claims file, reviewed the history of this condition with the Veteran, examined the Veteran, and included rationales for the conclusions reached therein. The Board therefore concludes that this examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Moreover, the Veteran has not claimed that this examination was inadequate. Id. Finally, there is no sign in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board previously remanded this matter in April 2008, October 2009, and June 2010. The April 2008 and June 2010 Board remands directed the RO to request and obtain the Veteran's updated treatment records. Following the April 2008 remand, the RO requested and obtained medical treatment records identified by the Veteran. After the June 2010 remand, the Veteran failed to reply to the RO's August 2010 letter requesting that he identify health care providers he has seen since December 2008. In addition to obtaining updated treatment records, the Board's April 2008 remand directed the RO to schedule the Veteran for a VA examination to determine the severity of his service-connected chronic fatigue associated with MS. In December 2008, the Veteran was scheduled for a VA neurological examination. Thereafter, the Board's October 2009 and June 2010 remands directed the RO to schedule the Veteran for VA examinations to determine the severity of his service-connected chronic fatigue associated with MS, to include separating out symptoms attributable to the Veteran's other service-connected conditions. In October 2010, a VA examination of the brain and spinal cord was conducted. As noted above, the Board has found this VA examination adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. at 312 (2007). The VA examiner was unable, without resorting to speculation, to separate out the functional limitations attributable to the Veteran's service-connected depression associated with MS from those functional limitations attributable to his service-connected chronic fatigue associated with MS. Given the complex and intertwined nature of these symptoms, the Board accepts the VA examiner's conclusion on this issue. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Accordingly, the directives of the Board's April 2008, October 2009, and June 2010 remands have been accomplished to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2 (2009); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous. . . ." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). In November 2004, the RO issued a rating decision which granted service connection at a 10 percent initial evaluation for chronic fatigue associated with MS, effective from May 27, 2004. The Veteran timely appealed this decision seeking an increased initial evaluation. In January 2009, the RO issued a rating decision which granted an increased initial evaluation of 40 percent for chronic fatigue associated with MS, effective from May 27, 2004. The Veteran continues to seek a higher disability rating for this condition. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Pursuant to Diagnostic Code 6354, used in rating chronic fatigue syndrome, a 40 percent evaluation is contemplated for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and 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 weeks but less than six weeks total duration per year. A 60 percent evaluation is contemplated for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and 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 per year. A 100 percent evaluation is contemplated for debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self care. See 38 C.F.R. § 4.88b, Diagnostic Code 6354. A note following the criteria directs that, for the purpose of evaluating this disability, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Id. After reviewing the evidence of record and the criteria set forth in Diagnostic Code 6354, the Board finds an initial 60 percent evaluation is warranted for the Veteran's service-connected chronic fatigue associated with MS. The Veteran's December 2008 VA examination for neurological disorders concluded with a diagnosis of MS complicated with migraine headache, cognitive decline, lower extremity weakness, upper extremity weakness, urinary incontinence, erectile dysfunction, depression, mild dysphasia, fatigue and chronic pains to include thoracolumbar pain description consistent with positive Lhermitte's sign. During the examination, the Veteran reported that any type of physical exertion causes him to feel exhausted and therefore restricts his routine daily activities. After reviewing the Veteran's claims folders and examining the Veteran, the VA examiner indicated that the Veteran was not affected by fatigue prior to his diagnosis of MS. The VA examiner then opined that the Veteran's daily activities "are at least fifty percent or more restricted than prior to the illness." The VA examiner also noted that the Veteran's fatigue was not controlled by medication. The Veteran's October 2010 VA examination for the brain and spinal cord noted the VA examiner's opinion that the Veteran's service-connected depression associated with MS and his chronic fatigue associated with MS both impact his functional capacity. The VA examiner further opined that it was not possible to separate out the percentage of incapacity attributable to each condition without resorting to mere speculation. Therefore, giving the Veteran the benefit of the doubt, and with full consideration of the functional limitations shown, an initial evaluation of 60 percent, but no more, is warranted since the initial grant of service connection, May 27, 2004. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 3.400 (2010). In reaching this conclusion, the Board also finds that the next highest rating, a 100 percent rating, is not shown to be warranted for the Veteran's chronic fatigue associated with MS since the initial grant of service connection, effective May 27, 2004. This condition is not shown to be nearly constant and so severe as to restrict routine daily activities almost completely and occasionally precluding self care. As noted in the December 2008 and October 2010 VA examinations, the Veteran's fatigue has not caused any periods of incapacitation. In addition, the medical evidence of record frequently lists the Veteran as having 4/5 strength or more in his upper and lower extremities. A December 2008 VA neurological examination noted that the Veteran reported becoming fatigued after activities such as walking for ten minutes and shopping for groceries. A November 2006 treatment report noted that the Veteran felt okay and was without any acute symptoms. An August 2006 treatment report noted that the Veteran was employed full time performing weapons training. The report also noted that he had injured his right shoulder while rapid firing a shotgun. A March 2006 VA treatment report noted the Veteran's complaints of feeling fatigued. The report also noted, however, that he continues to be fulfilled from work. A February 2006 VA treatment report noted that the Veteran was working full time. The report also noted that prior to working full-time, the Veteran had been masturbating multiple times a day with hours on the internet looking and downloading pornography, and that this was an increase from prior behavior. The report also noted that along with being sexually active with his wife, the Veteran started nude photography with another woman besides his wife. An October 2005 treatment report described the Veteran as being "rather muscular." A February 2005 aid and attendance examination report noted the Veteran's complaints of an overall fatigue on an ongoing basis for which he takes at least one 2-hour nap each day. The report also noted, however, that the Veteran could venture out alone and drive a vehicle. The report also noted that the Veteran appeared able to conduct most activities of daily living during period when this condition is not flared up. A February 2005 VA examination report noted the Veteran's complaints of fatigue after exercising. A September 2004 VA neurological examination noted the Veteran's complaints of weakness, fatigue and some functional loss during his daily, but "short-lived" headaches lasting just a few minutes. A September 2004 VA treatment report noted that the Veteran was in school full time, but that his condition required that he take one to two naps a day for 1/2 hour each time. Thus, since the initial grant of service connection, the Veteran's chronic fatigue associated with MS has not been shown to be nearly constant and so severe as to restrict routine daily activities almost completely and occasionally preclude self care. In addition, the Veteran is currently service-connected for numerous conditions, including cognitive impairment with anxiety and depression associated with MS, rated 70 percent disabling; dysphasia associated with MS, rated 30 percent disabling; headaches associated with MS, rated 30 percent disabling; right upper extremity weakness associated with MS, rated 20 percent disabling; left upper extremity weakness associated with MS, rated 20 percent disabling; right lower extremity weakness associated with MS, rated 20 percent disabling; and left lower extremity weakness associated with MS, rated 10 percent disabling. Pursuant to 38 C.F.R. § 4.14, pyramiding, the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Thus, the Board finds that assignment of the next highest rating criteria herein, which requires signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self care, would be pyramiding on the disability ratings currently in effect. See 38 C.F.R. § 4.130, Diagnostic Code 9327. In reaching its conclusion herein, the Board has considered the Veteran's overall level of fatigue, which was best documented by the December 2008 VA neurological examination. Nevertheless, the evidence of record clearly shows that at least some portion of the fatigue experienced by the Veteran is attributable to other service-connected conditions. The February 2005 aid and attendance examination noted the examiner's opinion that the Veteran had a number of issues related to MS which would cause some degree of fatigue and decrease activity significantly. An August 2004 VA examination for mental disorders noted that the Veteran's service-connected depression does affect his ability to function independently, appropriately and effectively. A July 2004 VA treatment report noted that the Veteran was showing symptoms of depression, including lack of energy and fatigue. A June 2008 private treatment report noted that the Veteran's depression was manifested by weight gain, very poor sleep and hygiene. Under these circumstances, a rating in excess of 60 percent is not warranted at any point since the initial grant of service connection for this condition. In considering the Veteran's claim herein, the Board has also considered the issue of whether the schedular evaluation assigned the Veteran's condition herein is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must then consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The Veteran's disability picture is not so unusual or exceptional in nature as to render the initial 60 percent rating assigned herein inadequate. The Veteran's chronic fatigue associated with MS is evaluated pursuant to 38 C.F.R. § 4.88b, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology. In this regard, VA examination in December 2008 revealed that that the Veteran's daily activities "are at least fifty percent or more restricted than prior to the illness." When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by an initial 60 percent disability rating for his service-connected chronic fatigue associated with multiple sclerosis. A rating in excess thereof is provided for certain manifestations of the service-connected chronic fatigue associated with MS, but the medical evidence of record did not demonstrate that such manifestations were present in this case. Therefore, the criteria for the current disability rating more than reasonably describes the Veteran's disability level and symptomatology, and the currently assigned schedular evaluation is adequate and no referral is required. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against an initial rating in excess of the 60 percent assigned herein, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial 60 percent evaluation for chronic fatigue associated with multiple sclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs