Citation Nr: 1315709 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-41 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to an increased initial rating for chronic fatigue syndrome (CFS), rated 0 percent from October 20, 2003 to May 31, 2010, and 60 percent as of June 1, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from April 1979 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2008 and July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2012, the Veteran testified before the undersigned at a Board hearing held in Washington, D.C. A transcript of the hearing has been associated with the claims file. Subsequently, the Board remanded this matter for additional development in a decision dated in June 2012. The Board notes that the Veteran and his representative appear to have briefed more issues than are currently on appeal. While an earlier effective date for the grant of service connection for CFS and entitlement to service connection for a psychiatric disability were on appeal when the Board last viewed this case in June 2012, the Board granted an earlier effective date for CFS in the June 2012 decision and the RO subsequently granted service connection for a major depressive disorder in a January 2013 rating decision. Therefore, those issues are no longer on appeal. The following decision is based on review of the Veteran's claims file and the electronic Virtual VA file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record does not show that any currently diagnosed GERD is etiologically related to the Veteran's period of active service. 2. From October 20, 2003, to May 31, 2009, the Veteran's CFS manifested with symptoms controlled by continuous medication. 3. From June 1, 2009, to April 11, 2011, the Veteran's CFS manifested with a restriction on routine daily activities to less than 50 percent of the pre-illness level. 4. From April 12, 2011, the Veteran's CFS manifested with nearly constant debilitating fatigue and cognitive impairments so severe as to restrict routine daily activities almost completely and which occasionally preclude self-care. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for an initial 10 percent disability rating, but not higher, for CFS are met from October 20, 2003, to May 31, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.88a, 4.88b, Diagnostic Code 6354 (2012). 3. The criteria for a disability rating in excess of 60 percent for CFS are not met from June 1, 2009, to April 11, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.88a, 4.88b, Diagnostic Code 6354 (2012). 4. The criteria for a 100 percent disability rating for CFS are met from April 12, 2011 to the present. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.88a, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Those requirements have been fulfilled by information provided to the Veteran in letters from the RO dated in August 2007 and October 2007 before the rating decisions on appeal were issued. These letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The letters also advised the Veteran as to how VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on the party attacking the agency determination). In view of the above, the Board finds that the notice requirements have been met. VA also has a duty to assist a Veteran in the development of his claims. That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated some of the Veteran's service medical records and identified VA and private treatment records. The Veteran was also given the opportunity to provide oral testimony in support of his appeal. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained, except for the following. The Veteran asserts that he was diagnosed and treated for GERD at the 121st Combat Support Hospital while stationed in Korea in the 1990s. In February 2008, the RO issued a formal finding that the identified in-service hospital treatment records were unavailable. In March 2008, the RO also issued a formal finding that VA treatment records from the Memphis VAMC for the period from January 2002 to May 2006 were unavailable. Some of the Veteran's service treatment records are evidently unavailable from the National Personnel Records Center (NPRC) or the Veteran himself. Where service records and some post-service records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). While it is unfortunate that some records may be unavailable, this appeal must be decided on the evidence of record. VA examinations were undertaken with respect to both claims on appeal. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). The Veteran's claimed GERD is not a chronic disease listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply as to the claim. Walker v. Shinseki, -- F.3d --, No. 2011-7184 (Fed. Cir February 21, 2013). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. The Veteran seeks service connection for GERD. In written submissions and testimony, he contends that he had GERD during service and was prescribed Nexium during service for his GERD symptoms. According to his service separation form, the Veteran was stationed in the Southwest Asia theater of operations from September 1990 to May 1991 and received the Combat Infantryman Badge (CIB) during a career of more than 20 years with the United States Army infantry. Available service treatment records contain complaints of stomach cramps with a finding of hyper acidity in July 1980. A treatment record dated in July 2000 shows that while the Veteran was stationed in Korea, he was seen for back pain. The clinician noted no nausea or vomiting. His August 2002 discharge and VA examination do not make any mention of GERD or any gastrointestinal difficulties and do not note any examination of the digestive system. The Veteran had not listed any digestive complaints in the first claim he had submitted to VA. After service, no abnormal digestive system conditions were diagnosed during a February 2003 Persian Gulf War Registry examination. In fact, the report indicates that no gastroenterological work-up was done at that time. Private treatment records dated in June 2005 from the emergency room of the Jackson Madison County General Hospital show that the Veteran was seen for a history of gastric reflux and was diagnosed with GERD. Reportedly the Veteran had been diagnosed with GERD the previous month. A July 2005 private medical record noted that the Veteran presented with a two to three year history of recurrent stomach discomfort. The Veteran indicated that the pain increased when the stomach was empty and it improved when he ate. He had some mild epigastric tenderness occasionally when the pain was there. He occasionally had a feeling of heartburn. It also was noted that the Veteran had never been treated for the complaints before although he had taken some over-the-counter Zantac and said that it helped with his symptoms. Dr. R.D.C. indicated that the Veteran might possibly have peptic ulcer disease and treated the Veteran as though he did, along with an infection. Biaxin and Amoxicillin were prescribed for two weeks along with Nexium. A November 2005 private medical record noted that the Veteran had been treated in July 2005 for peptic ulcer disease with Nexium, Amoxicillin, and Biaxin for two weeks. There was total symptom resolution and no reoccurrence. A March 2007 private medical record noted that the Veteran was seen for follow-up of abdominal pain and reflux. It was noted that at one time he was diagnosed with reflux and placed on Nexium for a short period of time. He noticed some relief but stopped taking that medicine since then. The record notes that he had tried no medicine for relief of symptoms of reflux. He denied any vomiting, but said that his symptoms were worse at night. GERD was assessed and daily Nexium was prescribed. A July 2007 private medical record notes that the Veteran wanted to change from Nexium to Protonix. He said that ever since he had been taking Nexium he had difficulty sleeping. He was then given a prescription for Protonix. In an October 2007 statement, the Veteran asserted that his GERD began during his period of active service and not after his discharge in August 2002. A November 2007 private medical record shows no gastrointestinal complaints, but there was a diagnosis of GERD and a notation that his GERD was stable and that Nexium was prescribed. According to February 2009 Persian Gulf War Registry correspondence, the Veteran apparently underwent another Gulf War examination and was notified that his examination and laboratory tests showed that he had GERD. A June 2009 VA primary care note shows that the Veteran had GERD and used to take Nexium while in service. In a signed affidavit received in November 2009, the Veteran's wife stated that the Veteran always complained about pain in his right shoulder during his more than 20 years in service and that sometimes that pain was manifested by vomiting. He was prescribed Nexium, which helped him gain weight. However, he now belched a lot. She said that she and the Veteran had determined that he had a reflux disease and that it was service connected. According to a January 2010 VA medical record, the Veteran had no heartburn, stomach pain, or constipation. According to a May 2010 VA history and physical, the Veteran had not experienced any recent nausea, vomiting, constipation, diarrhea, melena, hematochezia, or bright red blood per rectum. In a January 2011 VA examination for unemployability, an examination showed no symptoms of gastrointestinal issues such as nausea, heartburn, or regurgitation and gastrointestinal inspection was listed as normal. A February 2011 VA medical record shows that the Veteran had no heartburn, stomach pain, constipation, diarrhea, blood in stool, or nausea. He was still assessed with GERD. It was noted that he took Omeprazole twice a day. In his August 2011 substantive appeal, the Veteran stated that he was diagnosed with GERD while in service in Korea at a service hospital. He was given a pink or white fluid that reminded him of a milkshake. He was also given a prescription for another medication which stopped the vomiting. However, he continued to the present to have chest pain, lower stomach cramps, and constipation. The Veteran asserted these symptoms were from the Gulf War and should be service connected. According to an August 2011 VA medical record, the Veteran claimed that he had GERD for 19 years but had not been seen by the VA gastroenterology clinic in awhile. He denied any acute problems. During his January 2012 Board hearing, the Veteran testified that while serving in Korea in 1995 he threw up sometimes and felt like he was having a heart attack. At first he thought that was attributable to bad food. He went to a service hospital and for the first time found out what GERD was. The examiner told him he had gas and reflux disease and gave him a prescription. She also gave him a drink, which tasted like a milkshake. He testified that was the first time in a long time that he had ever had some relief and that took the pain away. He could not remember whether he was prescribed Nexium while in Korea, but did not think so. He said that when he returned from Korea in 2000, he was no longer on any prescription for his GERD and that in the time period close to his discharge in 2002 he was not taking anything for GERD. He testified that he doubted he even mentioned the GERD at Fort Leonard Wood before discharge although he supposed he should have continued the medication. The Veteran also testified that he went to Korea in 2004, after service, to visit one of his children, and again went to a service hospital and obtained another dose of the same "milkshake" medication he had taken in 1995. The Veteran underwent a VA examination in August 2012. The Veteran told the examiner that he started having heartburn in 1991 when he was in Iraq, but he was not treated at that time. He stated that he felt burning in his chest irrespective of food intake or activity. He never saw a gastroenterologist for his GERD and never had an EGD done. The examiner noted that the Veteran was diagnosed at VA with GERD in February 2011 and was referred to a gastroenterologist, but the Veteran never saw one or got an EGD done. The examiner also noted that the file showed that the Veteran was diagnosed with GERD in June 2005 when he was seen in a private emergency room. The VA examiner also noted that the Veteran took continuous medication for his GERD, or Omeprazole twice a day. Signs or symptoms of his GERD included heartburn and reflux. Mild vomiting and nausea four or more times a year were also noted. The diagnosis was GERD. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by service. The examiner explained that a one time incidence of stomach acidity due to a missed supper in July 1980 with resolved symptoms and normal exams in 1998 and later on during military service without any medical evidence of GERD made it less likely as a service-connected medical problem. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current GERD disorder was incurred as a result of any established event, injury, or disease during active service. The Board notes that there is no medical evidence of diagnosed GERD during service. Medical records associated with the claims file do not show a diagnosis of GERD until the May 2005 to June 2005 time period, or approximately three years after discharge from service. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In view of the three year period following service without a showing of a GERD disability, the evidence is against a finding of continuity of symptomatology, and that weighs against the Veteran's claim. As to service incurrence, information in the claims file indicates that the Veteran is a combat veteran. In any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat veteran's burden of demonstrating the occurrence of some inservice incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296 (1999). Thus, the provisions of 38 U.S.C.A. § 1154(b) apply only to the material issue involved in establishing direct service connection, evidence of the incurrence of a disease or injury in service. The Veteran is competent to testify about suffering gastrointestinal complaints during service as these recollections are consistent with the circumstances, conditions or hardships of service in Iraq. 38 U.S.C.A. § 1154(b) (West 2002). However, the Board notes that the Veteran usually dates his GERD symptoms to service in Korea in 1995, several years after his service in Southwest Asia, and never asserted that his GERD was a combat disease. Furthermore, the evidence does not show that the GERD was otherwise incurred during combat with the enemy. However, the Board finds that Veteran's contention that he first felt heartburn in 1991 when serving in Iraq, as he told the August 2012 VA examiner, to be credible. However, the Veteran has not provided any competent medical evidence to demonstrate that any current GERD disorder was caused by or was a result of his period of service. The August 2012 VA examiner did not suggest such a connection in that examination and a review of the claims file has not disclosed that any private physician has suggested the same. While VA has been unable to obtain records from the claimed treatment at a hospital in Korea from 1995, his later October 1998 inservice examination and August 2002 discharge examination revealed no gastrointestinal abnormalities in the years immediately preceding discharge. In fact, the Veteran testified that when he left Korea in 2000, and in the period prior to his discharge, he did not take anything for any gastrointestinal disorder. In essence, there is no competent medical opinion of record etiologically relating the Veteran's currently diagnosed GERD to events in his military service. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson v. West, 12 Vet. App. 247 (1999). In reviewing the Veteran's claim the Board has reviewed his written statements and testimony and those of his spouse and representative. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). The Board recognizes that the Veteran, as a layperson, is competent to report that he experienced gastrointestinal problems in service that required medical treatment with medication. In addition, he and his spouse are competent to report post-service symptoms of vomiting, dizziness, pain in the throat and chest, heartburn, and belching, as those symptoms are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, many of their statements can be considered credible in the absence of competent contrary evidence. However, to the extent that the Veteran and his spouse have related his current gastrointestinal symptoms to his period of active service, neither the Veteran nor his spouse has been shown to have the expertise to provide a competent opinion regarding the incurrence or aggravation of his current GERD disability. Thus, their lay assertions, standing alone, are insufficient to support a grant of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the onset of gastrointestinal problems during service, and the continuity of symptoms after service, he, his wife, and his service representative are not competent to diagnose or to relate GERD to his active service. In specific regard to his GERD claim, his contention that his GERD condition might be related to service, because of occasional treatment for stomach complaints while in service, while credible, is not persuasive in view of the findings of the October 1998 inservice examination, the August 2002 discharge examination, and the opinion of the August 2012 VA examiner that a nexus between currently diagnosed GERD and active service was less likely than not. In addition, he told the July 2005 private examiner that he had never been treated for heartburn before. Questions of medical diagnosis and causation are within the province of medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As a lay person without the appropriate medical training or expertise, the Veteran, his wife, and his representative simply are not competent to render a probative opinion on medical matters. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (lay person is generally not capable of opining on matters requiring medical knowledge). Consequently, the assertions of the Veteran, his spouse, and his representative in this matter do not constitute persuasive evidence in support of the Veteran's claim. In addition, GERD is not a disease subject to presumptive service connection. While the regulations permit presumptive service connection for gastric ulcers, there is no claim or evidence of any gastric ulcer in the record. 38 C.F.R. §§ 3.307, 3.309 (2012). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for GERD and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The percentage ratings in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for any times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994). Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2012). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson the Veteran is only competent to report observable symptoms, not clinical findings. Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405 (1998). When there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). The Veteran applied for service connection for chronic fatigue syndrome (CFS) on October 20, 2003 which was denied in a rating decision dated in March 2004. He did not appeal. In October 2007, he again applied for service connection. In an April 2009 rating decision the RO found that new and material evidence had not been received to reopen the Veteran's claim. The Veteran appealed and during the course of that appeal service connection was granted, effective October 15, 2007, in a July 2010 rating decision, A 0 percent rating was assigned, effective October 15, 2007, and a 60 percent disability rating was awarded from June 1, 2010, the date of his VA examination. The Veteran filed a Notice of Disagreement the following month arguing both for a higher rating and for an earlier effective date. In the Board's June 2012 decision, the Veteran was granted an earlier effective date for service connection for CFS of October 20, 2003, the date of his original claim for service connection. However, the RO had not as yet assigned a disability rating for CFS for the period prior to the previously assigned effective date of October 15, 2007. Therefore, with regard to the Veteran's claim for entitlement to an increased rating for CFS, because a rating had not yet been assigned for part of the period for which the appeal for increased rating covered, the Board found that a decision on the appeal for increased disability ratings for CFS would await the assignment of a rating for the period newly service-connected. A 0 percent rating has now been assigned from October 20, 2003, to May 31, 2010. The Veteran claims that his service-connected CFS warrants a compensable disability rating for the period from the grant of service connection on October 20, 2003 to June 1, 2010, when a 60 percent rating was assigned. He essentially contends that he was denied a CFS examination until June 1, 2010, because of VA errors in not recognizing his claim earlier and that he should be rated at least 10 percent from the effective date of service connection on October 20, 2003, and that his 60 percent rating should be awarded either to the time service connection was first denied in March 2004 or to October 15, 2007, the first effective date assigned. The Veteran's service-connected CFS was assigned a 0 percent rating under Diagnostic Code 6354, which provides the rating criteria for CFS. 38 C.F.R. § 4.88b (2012). Diagnostic Code 6354 states 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 rating is assigned for signs and symptoms of CFS that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms 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. 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, Diagnostic Code 6354, Note (2012). The Veteran's service medical records have been reviewed and show some symptomatology or diagnoses relevant to the CFS disability. For example, a February 1989 service treatment record shows that the Veteran was seen for complaints of dizziness, headache, sore throat, and cold and muscle aches. It was observed that the Veteran appeared tired. A March 1995 service treatment record noted that the Veteran was seen for feeling weak. He told the examiner that he had difficulty getting up in the morning and that he was very fatigued in the morning. He checked the "yes" box on his October 1998 service examination when asked whether he ever had easy fatigability and wrote that he did not have the energy that he had years ago. April 2001 service treatment records revealed that the Veteran was sent to quarters for 24 hours after complaining of pain in the back of the head and neck. It was also noted that he had little sleep the previous evening secondary to pain. Several other service treatment records dated in 2000 and 2001 noted that the Veteran was taking as much as 800 milligrams of Motrin every 8 hours for pain. After service, CFS was diagnosed during a February 2003 Persian Gulf War Registry examination. A March 2007 private medical record noted that the Veteran denied any excessive daytime sleepiness. He said that he tired more toward the end of the day, but nothing out of the ordinary. Obstructive sleep apnea was assessed and a polysonogram scheduled. June 2007 private medical records indicate that the Veteran underwent a private sleep study which showed mild obstructive sleep apnea. A July 2007 private medical record notes that the Veteran wanted to change from Nexium to Protonix. He said that ever since he had been taking Nexium he had difficulty sleeping. He also discussed recent sleep study results. He denied any chest pain or shortness of breath or any episodes of bleeding. The physician did not recommend another sleep study. A November 2007 VA medical record notes an overnight sleep study of the Veteran which showed mild obstructive sleep apnea syndrome which worsened to moderate in the supine position. January 2009 VA medical records note that the Veteran had run out of Motrin and needed pain medication. A subsequent record notes that he was given Tylenol 3 to take for pain. In a February 2009 Persian Gulf War Registry correspondence, the Veteran was notified that a recent examination and laboratory tests showed he had fatigue and sleep apnea among other conditions. A June 2009 VA primary care note shows that the Veteran had chronic fatigue. A July 2009 VA treatment record shows a past history of hypersomnia with sleep apnea. A July 2009 VA psychiatric record shows that the Veteran felt more tired and reported his sleep was unrefreshing. In his August 2009 notice of disagreement to an earlier denial of his claim, the Veteran stated that each day, and at least three or four times a day for about 45 minutes to 1 hour and 15 minutes, his energy vanished. Sitting or lying down did not end the fatigue. He said he could not do physical labor and did not have the energy for social activities. A September 2009 VA psychiatric record noted that the Veteran was sleeping better, but his wife told the examiner that he got tired very easily. She wanted to know if a stimulant could be added to his medication and reported that he was ordered stimulants while stationed in Korea. A January 2010 VA medical record shows that the Veteran had hypersomnia with sleep apnea, but had not picked up any medications since July 2009. May 2010 medical records show that the Veteran was hospitalized briefly for depression and suicidal ideation at a VA hospital. He reported poor sleep and low energy and it was noted that he had obstructive sleep apnea and chronic fatigue. It was also noted that he slept one night for 7 hours without incident and the night before had slept for 6.5 hours. The discharge summary reported that the Veteran frequently slept in the common room and said that he always felt tired. The Veteran underwent a VA examination on June 1, 2010. The Veteran told the examiner that he had a gradual onset of CFS. He went on sick call for aches and pains in service and expressed increased fatigue. He said he was not given medications for CFS while in service. He said that CFS hindered him from performing most daily activities. His wife said he could sleep the entire day. He stated that he noticed increased fatigue within an hour of awakening. His wife mentioned that the symptoms had worsened over the past 5 to 6 years. The Veteran did not desire to leave the home and also had noticed increased sleepiness with driving. It was also noted that the Veteran was being treated for depression and sleep apnea. The report of examination noted that the Veteran had debilitating fatigue which lasted 24 hours or longer after exercise. The examiner estimated that 50 percent of routine daily activities were restricted and that the restrictions had lasted for more than 12 months. The two examples noted were moving the lawn and removing boots. CFS symptoms included occasional sore throat, frequent generalized weakness, frequent migratory joint pains, constant sleep disturbance, frequent forgetfulness, frequent confusion, frequent headaches, frequent fever, and enlarged cervical lymph nodes. On examination, there was no evidence of pharyngitis, cervical adenopathy, or axillary lymphadenopathy, but there was evidence of cervical lymphadenopathy. A previous sleep study at VA was noted. Diagnosis was chronic fatigue syndrome with moderate to severe affects on the Veteran's usual daily activities. The VA examiner opined that the Veteran's debilitating fatigue was severe enough to reduce or impair the average daily activity below 50 percent of the Veteran's pre-illness activity level for a period of six months and that the Veteran manifested at least 6 of the 10 CFS diagnostic criteria found in VA regulations. The examiner also stated that the Veteran's CFS symptoms were at least as likely as not valid. The examiner could not differentiate between the symptomatology of sleep apnea and CFS without speculation. In a statement received in September 2010, the Veteran's wife stated that the Veteran was often confused as a result of his chronic fatigue syndrome and that the day before she had to rush her husband to a private hospital emergency room for first and second degree burns on his left hand and arm. She explained that he had placed a skillet of grease on the stove and then forgot about it. As the house filled with smoke, he then grabbed the skillet and placed it in the sink, but when he ran water he created a hot liquid fireball. In a January 2011 VA examination for unemployability, the Veteran told the examiner that he was tired daily and felt as if he could not get enough rest. He said that he stayed in bed most of the day, but did not take medications for his symptoms and was not under the care of a rheumatologist. This examiner noted that CFS was a debilitating and complex disorder characterized by profound fatigue that was not improved by bed rest and that could be worsened by physical or mental activity. A February 2011 VA medical record shows that the Veteran's hypersomnia with sleep apnea had improved. In an April 12, 2011 VA joints examination the Veteran told the examiner that he now could not even put on his own shoes and could not bend over to put on his socks. He denied being able to perform any of his activities of daily living and said that he depended on his wife for everything. He estimated his pain registered a 10 on a pain scale ranging from 0 to 10. The Veteran underwent a VA examination later in April 2011 by the same examiner who conducted the June 2010 VA examination. The report noted a progressively worse course since onset and that current treatment consisted of daily intake of Motrin. It was also noted that the Veteran had constant debilitating fatigue which lasted 24 hours or longer after exercise. The examiner estimated that 70 percent of routine daily activities were restricted and that the restrictions had lasted for more than 12 months. The two examples noted were help with dressing and showering. CFS symptoms included frequent sore throat, constant generalized muscle aches, migratory joint pains, constant sleep disturbance, constant forgetfulness, constant confusion, and frequent headaches. On examination, there was no evidence of pharyngitis, cervical adenopathy, or axillary lymphadenopathy, but there was evidence of cervical lymphadenopathy. The diagnosis was CFS with severe affects on the Veteran's usual daily activities. The examiner opined that the Veteran's debilitating fatigue was severe enough to reduce or impair the average daily activity below 50 percent of the Veteran's pre-illness activity level for a period of six months and that the Veteran manifested at least 6 of the 10 CFS diagnostic criteria found in VA regulations. In an April 2011 signed statement, the Veteran's wife stated that the Veteran could not get up out of bed at least two to three times per week and needed assistance getting dressed and bathing. She said her observation of the Veteran over the past 10 years showed his deterioration. During his January 2012 Board hearing, the Veteran testified that he was taking Motrin medication for his fatigue symptoms when he was discharged from active duty. He also testified that his symptoms of chronic fatigue syndrome got worse over time. For example, his wife noticed that he left a pot on the stove which eventually burned him. He also said that she had noticed that he was forgetful and did not ever have energy. The Veteran further testified that Motrin was the only medication he was ever prescribed for fatigue and pain. He said it was reduced because he was told it was not good for him to take larger doses over long periods of time. He also said that he briefly had some energy when he got out of bed after using the CPAP machine, but he did not like to use the mask and had nightmares and memories of being in Iraq. He also said he might be claustrophobic. Having reviewed the foregoing, the Board finds that the Veteran's service-connected CFS more clearly approximated the criteria for a 10 percent disability rating for the period from October 20, 2003, to May 31, 2009. Specifically, the medical and lay evidence of record documents the Veteran's use of Motrin to control his pain. The Veteran sometimes denied taking medication for his CFS, and it appears from his service treatment records that Motrin was initially prescribed for alleviation of pain that arose from certain orthopedic conditions. Nevertheless, the Veteran credibly testified during his hearing that he took Motrin for CFS symptoms since before discharge from service and that Motrin was the only medication that he was ever prescribed for fatigue and pain. Moreover, the April 2011 VA examiner noted that the Veteran's treatment for CFS consisted of daily intake of Motrin. As the Rating Schedule warrants a compensable rating for CFS symptoms controlled by continuous medication, the Board will award an initial disability rating of 10 percent for the period from October 20, 2003, to May 31, 2009. The evidence of record, however, does not indicate that a disability rating in excess of 10 percent is warranted prior to June 1, 2009. A 20 percent rating is warranted for CFS symptoms 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. The evidence of record does not indicate that the severity of the Veteran's CFS rose to the level contemplated by the criteria for a 20 percent disability rating during this time period. For example, in March 2007 he denied any excessive daytime sleepiness and he has denied being under the care of a rheumatologist. There is no medical evidence of an "incapacitating condition" treated by a physician. As to the Veteran's argument that the process of obtaining service connection took too long due to VA mistakes, and that he should have been provided with a VA examination of his CFS condition before June 2010, the Board finds that the evidence in the claims file suggests that the Veteran was employed at the post office until the summer or fall of 2010 and that an earlier VA examination in this case would not likely have shown the severe restrictions on his routine daily activities noted in the later VA examinations of record. In addition, the Veteran himself failed to appeal the initial denial of his claim for service connection for CFS in March 2004 and did not file to reopen his claim until October 2007. Therefore, a rating in excess of 10 percent is not warranted in this case from October 20, 2003, to May 31, 2009. The Board also believes after its review of the evidence that the Veteran's 60 percent disability rating for CFS should be awarded from June 1, 2009, rather than June 1, 2010. The Veteran reported in an August 2009 filing that every day his energy vanished at least three or four times a day for approximately an hour. Of more import, the June 2010 VA examiner estimated that 50 percent of the Veteran's routine daily activities were restricted and that these restrictions had lasted for more than 12 months. Therefore, the Board believes that the Veteran's 60 percent disability rating, which had been awarded effective June 1, 2010, based on this VA examination, should be effective 12 months earlier because the restrictions on his usual daily activities supporting the 60 percent rating had lasted for at least the previous 12 months. This examination report also showed that the Veteran manifested at least 6 of the 10 CFS diagnostic criteria found in VA regulations. The June 2010 VA examiner also was unable to differentiate between what symptomatology could be assigned to his nonservice-connected sleep apnea and what symptomatology could be assigned to his service-connected CFS. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms from June 1, 2009, to April 11, 2011, more closely approximated a reduction in his activity level to less than 50 percent of his pre-illness level. Accordingly, a 60 percent disability rating is warranted for the Veteran's disability from June 1, 2009 to April 11, 2011. There is no indication from evidence dated from June 1, 2009, to April 11, 2011, that the Veteran's CFS disability was so severe then as to warrant a rating in excess of 60 percent. In his August 2009 submission he estimated that when awake he was without energy at least four hours every day. The preponderance of the evidence for this time period does not show that the Veteran experienced nearly constant symptoms that were so severe as to restrict the Veteran's routine daily activities almost completely or that his CFS signs and symptoms occasionally precluded self-care. Essentially, the medical and lay evidence does not support the assignment of a 100 percent rating for the time period from June 1, 2009, to April 11, 2011. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 60 percent from June 1, 2009 to April 11, 2011. However, the Board finds that a 100 percent schedular rating for CFS is warranted as of the date of the April 12, 2011, VA joints examination. In that examination, the Veteran told the examiner that he was no longer able to put on his own shoes and could not bend over to put on his own socks and admitted that he depended on his wife for everything. Later that same month the VA examiner, who had examined the Veteran in June 2010, noted the Veteran's increased symptomatology and the severe effects of CFS on his usual daily activities. There is also evidence that his wife helped the Veteran dress and shower. Her April 2011 statement noted that the Veteran had difficulty getting out of bed two to three times a week. The Board finds that lay evidence competent and credible and not contradicted by the other evidence of record. The Board has considered the Veteran's statements as to the nature and severity of his CFS in awarding a compensable rating for the period from October 20, 2003; in bringing forward the 60 percent disability rating by one year based on a reevaluation of the medical and lay evidence; and in awarding a full 100 percent rating for the period from April 12, 2011. The Veteran is competent to report that his symptoms are worse and to describe his symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). However, in rating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204 (1994). The Board has considered whether the application of any further staged ratings would be in order. Fenderson v. West, 12 Vet. App. 119 (1999). However, the Board can identify no other period of time since the effective date of service connection during which the Veteran's service-connected CFS is shown to warrant disability ratings in excess of what has been assigned herein. Additionally, the Board has considered whether an extraschedular rating is warranted for the period before the 100 percent schedular rating became effective on April 12, 2011. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). In determining whether referral for consideration of an extraschedular rating is warranted, the Board must determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. 38 C.F.R. § 3.321(b)(1) (2012). In this case, in assigning the 10 percent disability rating and continuing the 60 percent rating but assigning it a year earlier, the evidence of record does not establish that the schedular criteria are inadequate to rate the Veteran's disability. Higher ratings are available under the applicable criteria for the first two time periods discussed and the Veteran's disability does not more closely approximate the criteria for disability ratings higher than what has already been assigned in those periods. The Board has determined that the evidence permits a 100 percent schedular rating for the period since April 12, 2011. Furthermore, the Veteran is already in receipt of a total disability rating for individual unemployability (TDIU), effective August 25, 2010. Thus, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Service connection for GERD is denied. Entitlement to an initial 10 percent rating, but not higher, for CFS is granted from October 20, 2003, to May 31, 2009. Entitlement to a rating of 60 percent for CFS is granted, effective June 1, 2009. Entitlement to a rating greater than 60 percent from June 1, 2009, to April 11, 2011, is denied. Entitlement to a 100 percent rating for CFS is granted as of April 12, 2011. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs