Citation Nr: 1307882 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 06-33 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable evaluation for chronic fatigue syndrome (CFS) prior to July 9, 2012. 2. Entitlement to an initial evaluation in excess of 60 percent beginning July 9, 2012 for CFS. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from February 1998 to August 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO), which granted service connection for CFS and assigned a noncompensable rating effective January 17, 2003. A November 2012 Decision Review Officer's decision granted a rating of 60 percent for CFS effective July 9, 2012, the date of VA evaluation. The Veteran has indicated a desire to continue the appeal. In April 2012, the Board found that the severance of service connection for an anxiety disorder claimed as posttraumatic stress disorder was improper and restored service connection for an anxiety disorder, effective May 1, 2005; the Board remanded the issue of entitlement to an initial compensable evaluation for CFS to the RO for additional VA treatment reports and a current evaluation of the disability. Additional VA treatment records and a VA evaluation report for July 2012 were subsequently added to the file. Consequently, there has been substantial compliance with the April 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) FINDINGS OF FACT 1. The evidence is in equipoise as to whether it shows periods of incapacitation of at least one but less than two weeks during a 12 month period or symptoms controlled by continuous medications. 2. The evidence does not show nearly constant symptoms of CFS that are so severe as to restrict routine daily activities almost completely and occasionally preclude self-care. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 60 percent, but no higher, prior to July 9, 2012 for CFS are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.88b, Diagnostic Code 6354 (2012). 2. The criteria for an initial evaluation in excess of 60 percent for CFS are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in February 2003, prior to adjudication, which informed her of the requirements needed to establish entitlement to service connection. Service connection was subsequently granted for CFS by rating decision in February 2005. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating until April 2008, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Consequently, notice has been given in this case with respect to the increased rating claim. In accordance with the requirements of VCAA, the February 2003 and April 2008 letters informed the Veteran what evidence and information she was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical evidence was subsequently added to the claims files. The Veteran was informed in the April 2008 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA examinations were conducted in May 2008 and July 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2008 and July 2012 VA examinations are adequate, as they provide the symptomatology of the Veteran's CFS. There is adequate medical evidence of record to make a determination on the issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination in this case has been met and that the case will be decided based on the evidence of record. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claim. The Veteran has been given ample opportunity to present evidence and argument in support of her claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Although there is evidence on file that the Veteran had received treatment from the Spokane Vet Center, an attempt to obtain these records was not made because, as noted in a February 2012 VA Memorandum, VA was unable to obtain the Veteran's prior authorization despite several written attempts. Analysis of the Claim A February 2005 rating decision granted service connection for CFS and assigned a noncompensable rating effective January 17, 2003, the date of claim, under Diagnostic Code 6354. The Veteran appealed. A November 2012 Decision Review Officer's decision granted a rating of 60 percent for CFS, effective July 9, 2012. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 (2012). Diagnostic Code 6354 provides ratings for CFS. 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 10 percent evaluation is assigned for symptoms that wax and wane, resulting in periods of incapacitation of at least one but less than two weeks total duration per year, or symptoms that are controlled by continuous medication. 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. According to a June 2003 VA Gulf War evaluation, the Veteran worked in a restaurant and supervised employees, making sure that the food served was acceptable. She had lost her previous job because of being sick and vomiting too much; she had worked at her current job for 27 days. She complained of nausea, vomiting, passing out, light-sensitive headaches, intermittent muscle and joint pains. She reported that, if she fatigued herself, it took 3-4 hours to recover. She did not sleep well, and she tired easily. She was found to have an undiagnosed illness, more likely CFS, as she seemed to fit most of the criteria for it, although she did not have debilitating fatigue. No other diagnosis could be found. It was reported on VA Gulf War evaluation in May 2008 that the Veteran had fatigability, generalized weakness, cold and heat intolerance, insomnia, and palpitations. The Veteran said that, since 2000, she had had episodes where she suddenly felt sick, hot, and, occasionally, dizzy. The episodes occurred 1-2 times a month and could last a couple of minutes to all afternoon. The episodes were followed by a migraine headache that lasted 2-3 days. She was taking Prednisone, Atenolol, and birth control pills. Taking Atenolol for tachycardia resulted in excessive fatigue, where she felt exhausted. She was an administrative assistant with Goodwill, working full-time, and had not lost any time from work in the past year. The diagnosis was noted to be unsubstantiated by the laboratory results; there was no anemia, electrolyte disorder, or weight loss. Her condition did not cause a significant effect on her general occupation or on her daily activities. VA treatment reports dated through July 2012 reveal that the Veteran was primarily treated for other disabilities; an assessment of fatigue was noted in August 2010. It was noted on VA evaluation for CFS in July 2012 that the claims files had been reviewed. The Veteran complained of always being tired, of feeling that she had not slept even though she had slept well, and of feeling exhausted. The evaluation reported that the Veteran's debilitating fatigue had reduced her daily activity level to less than 50 percent of the pre-illness level for at least 6 months. She had symptoms of debilitating fatigue, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches different than pre-illness, migratory joint pains, and sleep disturbance. Her symptoms were nearly constant. There was no cognitive impairment and no period of incapacitation requiring bed rest and treatment by a physician. It was reported that the Veteran's CFS did not impact her ability to work as a scheduler at the Spokane VA Medical Center. Her routine daily activities had been restricted approximately 60 percent for more than a year. Her CBC (complete blood count) and LFT (liver function tests) were considered essentially normal. Her CFS had a severe effect on her ability to exercise and a moderate effect on her ability to do chores and shopping. The Board notes that the medical evidence prior to VA evaluation on July 9, 2012 is essentially inadequate for rating purposes, as it does not address the rating criteria and is not based on a review of the claims files. Consequently, because the July 2012 evaluation indicates that the Veteran's CFS debilitating fatigue had reduced her daily activity level to less than 50 percent of the pre-illness level for at least 6 months, the Board finds the evidence in equipoise as to whether CFS symptomatology is indicative of a 60 percent rating throughout the appeal period. The Board finds, however, that a rating in excess of 60 percent is not warranted throughout the appeal period. Although the examiner concluded in July 2012 that the Veteran's symptoms were almost constant and that debilitating fatigue had reduced her daily activity level to less than 50 percent of the pre-illness level for at least 6 months, the evidence does not show signs and symptoms of CFS so severe as to restrict routine daily activities almost completely, such as to occasionally preclude self-care. In fact, it was concluded in July 2012 that the Veteran did not have any cognitive impairment or period of incapacitation requiring bed rest and treatment by a physician. It was also reported that the Veteran's CFS did not impact her ability to work as a scheduler at the Spokane VA Medical Center and only moderately affected her ability to do routine activities such as chores and shopping. The Board acknowledges the Veteran's subjective complaints of CFS throughout the appeal period, such as fatigue and muscle pain. The Veteran is competent to report her subjective symptoms. These lay observations are credible, but must be evaluated in light of the rating schedule described above. The lay statements have been considered in the above noted grant of a 60 percent rating for CFS throughout the appeal period. However, the evidence of record has not shown the severity required for a higher schedular at any other time, as discussed above. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board finds that referral for extraschedular consideration is not warranted. The Veteran's service-connected CFS is contemplated and reasonably described by the rating criteria, which account for signs and symptoms such as debilitating fatigue. Id. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's CFS presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. The benefit-of-the-doubt rule has been considered in the above grant of benefits; however, as noted above, the preponderance of the evidence weighs against an initial rating in excess of 60 percent for the Veteran's CFS. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Finally, the Board notes that, according to the July 2012 examination report, the Veteran is working full time. Consequently, the matter of entitlement to TDIU is not relevant to the IR issue decided above. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Entitlement to an initial rating of 60 percent rating beginning January 17, 2003 for CFS is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an initial rating in excess of 60 percent for CFS is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs