Citation Nr: 1324686 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 04-24 161 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable evaluation for gastroesophageal reflux disease (GERD) status post fundoplication prior to May 24, 2012. 2. Entitlement to an initial evaluation in excess of 10 percent for GERD status post fundoplication on or after May 24, 2012. 3. Entitlement to an initial compensable evaluation for chronic fatigue syndrome prior to May 24, 2012. 4. Entitlement to an initial evaluation in excess of 20 percent for chronic fatigue syndrome on or after May 24, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to June 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from October 2001 and July 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The October 2001 rating decision granted service connection for gastroesophageal reflux disease (GERD) status post fundoplication and assigned a noncompensable evaluation effective from November 1, 2001, which was based on the Veteran's anticipated separation date of October 31, 2001. The July 2002 rating decision also granted service connection for chronic fatigue syndrome and assigned a noncompensable evaluation effective form July 1, 2001. In addition, the RO determined in the July 2002 rating decision that July 1, 2002, was the correct effective date for the grant of service connection for GERD. The RO explained that a DD 214 had been obtained after the issuance of the October 2001 rating decision showing that his actual date of discharge was June 30, 2002. The Board remanded the case for further development in September 2006. That development was completed, and the case was returned to the Board for appellate review. In November 2008, the Board denied the claims for a higher initial evaluation for GERD and chronic fatigue syndrome. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a June 2010 Order, the Court vacated the November 2008 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board then remanded the case in October 2010 to provide the Veteran a second hearing, which was later held in February 2012. At the February 2012 hearing, the Veteran submitted additional evidence with a waiver of the RO's initial consideration. See 38 C.F.R. § 20.1304 (2011). The Board subsequently remanded the case again for further development in May 2012. That development was completed, and in December 2012, the RO issued another rating decision granting a 10 percent evaluation for GERD and a 20 percent evaluation for chronic fatigue syndrome effective from May 24, 2012. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues of entitlement to higher initial evaluations for GERD and chronic fatigue syndrome remain on appeal and have been recharacterized as reflected on the title page. The case has since been returned to the Board for appellate review. As previously noted, the Veteran has been provided two hearings on the issues currently before the Board. A hearing was held in June 2006, by F. Judge Flowers, a Veterans Law Judge, in St. Petersburg, Florida. Another hearing was held in February 2012 before Jessica J. Wills, a Veterans Law Judge, in Atlanta, Georgia. These individuals were designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and are among the panel of judges rendering the determination in this case. Transcripts of the hearing testimony are in the claims file. All Veterans Law Judges (VLJ) who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C.A § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held. The appeal is then ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. In this case, during a pre-hearing conference in February 2012, the Veteran was advised of his right to a third hearing pursuant to Arneson v. Shinseki; however, he chose to waive his right to the additional hearing by a third individual. It was specifically noted on the record at the beginning of the hearing that he was choosing to waive his right, and there was no objection by the Veteran or his representative. See, e.g. Janssen v. Principi, 15 Vet. App. 370, 374 (2001); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). Therefore, the Board may proceed with the adjudication of the claims without providing a third hearing in this case. The Board has reviewed additional documents included in the Virtual VA system; however, no new records pertinent to this appeal were found therein. The Board also notes that the Veteran indicated at the February 2012 hearing that he wanted to file a claim for depression secondary to his service-connected chronic fatigue syndrome. However, that issue is not currently before the Board. Therefore, the matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's GERD has been productive of substernal pain with recurrent epigastric distress and occasional heartburn and dysphagia. He has not been shown to have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, that is productive of considerable impairment of health. 2. Prior to May 24, 2012, the Veteran was shown to be taking medication on a regular basis to help alleviate the symptoms of his chronic fatigue syndrome. He did not have symptoms that were nearly constant and restricted routine activities by less than 25 percent of the pre-illness level. He also did not have symptoms that waxed and waned resulting in periods of incapacitation of at least two but less than four weeks total duration per year. 3. Since May, 24, 2012, the Veteran's chronic fatigue syndrome has not been productive of symptoms that are nearly constant and restrict routine activities to 50 to 75 percent of the pre-illness level, or which wax and wane resulting in periods of incapacitation of at least four but less than six weeks total duration per year. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 10 percent evaluation for GERD have been met for the period prior to May 24, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Code 7346 (2012). 2. The criteria for an evaluation in excess of 10 percent for GERD have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Code 7346 (2012). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 10 percent evaluation for chronic fatigue syndrome have been met for the period prior to May 24, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.88b, Diagnostic Code 6354 (2012). 4. The criteria for an evaluation in excess of 20 percent for chronic fatigue syndrome have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for GERD and chronic fatigue syndrome. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his GERD and chronic fatigue syndrome. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claims. The Veteran has not identified any outstanding records that are relevant to the issues being decided herein. Moreover, the Veteran and his representative have provided written statements and argument, and the record contain transcripts from both of the hearings held before the Board. During the most recent hearing in February 2012, the undersigned Veterans Law Judge identified the issues on appeal, and the Veteran and his wife were provided the opportunity to describe the symptoms of his GERD and chronic fatigue syndrome and their impact on him. The undersigned Veterans Law Judge also clarified where the Veteran receives his treatment in order to determine whether all relevant records had been obtained. Therefore, the Board finds that it has complied with the duties owed during a hearing. Moreover, the Veteran and his representative have not contended otherwise. In addition, the Veteran was afforded VA examinations in May 2012 in connection with his claims. Those examinations were provided in compliance with the May 2012 remand directives and in response to the contentions set forth at the May 2012 hearing. 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 VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record, including the Veteran's own reports, as well as on an examination, and fully address the rating criteria that are relevant to rating the disabilities in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Moreover, also in compliance with the remand, the Veteran was sent a letter in May 2012 requesting that he identify any additional treatment he had received for GERD or chronic fatigue syndrome. However, in June 2012, he indicated that he had no more evidence to submit. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Anlysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. 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. 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 regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the 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 [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period 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) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). A. GERD The Veteran's GERD is currently assigned a noncompensable evaluation effective from July 1, 2002, and a 10 percent evaluation effective from May 24, 2012. Those evaluations were assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is assigned when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is contemplated for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Where the schedular criteria does not provide for a noncompensable evaluation, such an evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In this case, the Veteran's service treatment records reflect that he was diagnosed with GERD and prescribed medications. The Veteran was first examined in connection with his claim in October 2001, which was shortly before his discharge from service. At that time, he reported a history of two fundoplications that occurred in 1998. The Veteran indicated that his heartburn was better, but noted that he still had trouble with his stomach cramping after meals, poor digestion, and gas pains. An examination showed that the Veteran was well nourished. His abdomen was flat, soft, and nontender with normoactive bowel sounds. The examiner diagnosed him with GERD status post fundoplication and noted that treatment was ongoing. In a written statement submitted in May 2004, the Veteran contended that he experienced cramping after eating and severe pain at the base of the sternum and left shoulder. He reported that a March 2004 endoscopy showed reflux. He was taking multiple medications for his GERD as well as medications to treat his sternum and left shoulder pain. At his hearing in June 2006, the Veteran testified that he had constant pain at the base of his sternum, which was worse after eating. He did not have difficulties with vomiting and had not been told that he was anemic. He did not have any weight loss, but he had difficulty sleeping because of his sternum and shoulder pain. The Veteran was reexamined by VA in June 2008 at which time he reported that the symptoms of his GERD were worse and that he had constant pain. It was noted that he took medication to treat his disability. The Veteran indicated that he had nausea less than weekly, and there was no dysphagia. He experienced esophageal distress accompanied by pain several times daily, but he had heartburn less than weekly. There was no regurgitation, hematemesis, or melena. The Veteran's overall health was good, and there were no signs of anemia. The examiner opined that, although the Veteran had daily GERD symptoms, they were mild in nature. In a September 2008 written statement, the Veteran reported that he was in constant pain due to his GERD, which he had been told was a complication of his 1998 surgery. Private treatment records reflected complaints of gastroesophogeal reflux and dysphagia. The Veteran reported constant pain at the base of his sternum that got worse when he ate and difficulty swallowing. On a December 2008 new patient questionnaire, the Veteran reported that his main problem was severe cramping and bloating. He reported having difficulty swallowing, changes in appetite, abdominal pain, changes in bowel habits, and heartburn or indigestion more than once a week. There was no anemia, vomiting blood, black or tarry stools, recurrent nausea, or rectal bleeding. A December 2008 treatment note indicated that the Veteran had not been having much of a problem with heartburn, but indicated that this symptom had recently worsened. He complained of abdominal and substernal pain, early satiety, a lot of gurgling in his stomach, and loose stools. He appeared well developed and well nourished, but he had had gas/bloat syndrome. In April 2009, the Veteran was diagnosed with gas/bloat syndrome as a result of the 1998 fundoplication. He continued to report substernal pain that was worse after eating, but he denied having any bowel complaints, nausea, vomiting, abdominal bloating, or distension. A physical examination was normal except for back complaints. On a new patient health questionnaire in May 2011, the Veteran reported that he had difficulty swallowing and abdominal pain. He reported that he had no anemia, change in appetite, vomiting blood, black or tarry stools, changes in bowel habits, heartburn or indigestion more than once per week, nausea, or rectal bleeding. In May 2011 and June 2011, the Veteran reported having sternum pain, difficulty swallowing, occasional bloating, and gas, but he denied nausea or vomiting. An August 2011 treatment note showed bowel concerns with alternating constipation and diarrhea, excessive gas, and sternum pain that was worse with eating or palpation. He had tried several medications without relief. He denied heartburn or reflux. An abdominal examination was normal. In general, the primary complaint in the treatment records was abdominal and substernal pain, with periodic complaints about heartburn, difficulty swallowing, gas, bloating, and bowel problems. The Veteran testified at another hearing in February 2012 at which time he indicated that he had a constant dull pain at the base of his sternum that was worse with palpation. He also got a pain in his left shoulder when he ate. He felt that his sternum had moved since the 1998 fundoplication. The Veteran stated that he had been diagnosed with gas bloat syndrome. He noted that his stomach gurgles loudly at times. Medications did not help much. The Veteran also stated that he did not go out to eat much because his symptoms were embarrassing. It often felt like food was building up in his esophagus. He had not lost weight, and nobody had told him that he had anemia. The Veteran was provided another VA examination in May 2012 during which he reported that he was treated by a private gastroenterologist and had been prescribed several medications in the past that did not work and were resultantly discontinued. Currently, he took Rolaids or Tums. He reported experiencing constant epigastric pain that was worse with eating, as well as left shoulder pain with eating. He had reflux and indigestion and persistently recurrent epigastric distress, regurgitation, and substernal arm or shoulder pain. No other symptoms were identified. The examiner felt that the Veteran's GERD impacted his ability to work. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an initial compensable evaluation prior to May 24, 2012. In this regard, the evidence shows that the Veteran has variously reported having complaints of dysphagia and substernal and shoulder pain. For example, private medical records noted a complaint of dysphagia, and he was noted to have substernal pain in December 2008 and April 2009. Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds that his symptoms more nearly approximate the criteria for a 10 percent evaluation prior to May 24, 2012. The Board has also considered whether an initial evaluation in excess of 10 percent is warranted at any point during the pendency of the appeal. However, the preponderance of the evidence does not support a finding that he has persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In fact, the June 2008 VA examiner indicated that there was no dysphagia or regurgitation, and the Veteran's overall health was considered good. The examiner also commented that the symptoms were mild in nature. The Board does acknowledge that there are treatment records noting complaints of dysphagia as well as substernal arm and shoulder pain; however, in December 2008, it was noted that the Veteran was well developed and well nourished, and in May 2011 and June 2011, there was no nausea or vomiting. Thus, even considering the complaints and symptoms, those treatment records do not suggest that the Veteran had considerable impairment of health. Likewise, the May 2012 VA examiner indicated that the Veteran had persistently recurrent epigastric distress with regurgitation and substernal arm or shoulder pain. However, despite noting those complaints and being specifically asked about other pertinent signs or symptoms, there was no indication by the examiner that the Veteran had or reported having dysphagia, pyrosis, nausea, anemia, weight loss, hematemesis, or melena. Notably, various treatment records indicate that the Veteran was well nourished and in no acute distress. The Veteran's only reported restriction was eating out, which appeared to be related more to embarrassment about his symptoms rather than an inability to go out. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has met the criteria for a 30 percent or 60 percent evaluation under the rating criteria. Therefore, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his GERD at any point during the pendency of the appeal. B. Chronic fatigue syndrome The Veteran chronic fatigue syndrome is currently assigned a noncompensable evaluation prior to May 24, 2012, and a 20 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.88b, Diagnostic Code 6354. Under that diagnostic code, a 10 percent disability evaluation is assigned when there is debilitating fatigue, cognitive impairments ((such as inability to concentrate, forgetfulness, confusion, or a combination of other signs and symptoms which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or symptoms controlled by continuous medication. A 20 percent evaluation is contemplated when those symptoms are nearly constant and restrict routine activities by less than 25 percent of the pre-illness level, or which wax and wane resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent evaluation is warranted when those symptoms are nearly constant and restrict routine activities to 50 to 75 percent of the pre-illness level, or which wax and wane resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent evaluation is assigned when the symptoms are nearly constant and restrict routine 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 rating is warranted for symptoms that are nearly constant and so severe as to restrict routine activity almost completely and which may occasionally preclude self care. For purposes of applying these criteria, 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. A zero percent evaluation applies when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran's service treatment records reflect that he reported experiencing difficulties with chronic fatigue. The Veteran was first examined in connection with his claim in October 2001. Although the examination did not specifically address the Veteran's chronic fatigue syndrome, the Veteran did provide a history indicating that he never felt quite right and that the fatigue had never fully stopped since he became sick. In a May 2004 statement, the Veteran indicated that he was prescribed Prozac for migraines and chronic fatigue. He still had symptoms four to six days per month. At his June 2006 hearing, the Veteran testified that he contracted Valley Fever in service, indicated that he was treated for approximately one year, and noted that it had never fully left him. Since that illness, there were many times when he just felt exhausted. The Veteran stated that he was taking Elavil for pain and chronic fatigue, and he felt that he was incapacitated four to six times a month. At times, he felt lethargic and had no motivation to do anything. The Veteran also indicated that he had difficulty focusing at work because he was tired. He stated that he does not regularly see a physician for chronic fatigue because there is little they can do other than prescribe the medication. He indicated that they have told him he should rest when he has symptoms. He further noted that he feels depressed because of his medical problems. The Veteran's wife testified that the Veteran sometimes cancels plans because he is too tired. The Veteran was reexamined by VA in June 2008 at which time he reported that his fatigue originated with an episode of Valley Fever and that it never really went away. The Veteran reported that he was prescribed Elavil for the peaks and troughs he goes through, but indicated that his symptoms are mostly stable. There was no debilitating fatigue, and symptoms restricted daily activity by 20 percent. It was noted that his fatigue did not last 24 hours or more after exercise. The Veteran reported experiencing constant generalized weakness and frequent migratory joint pains. It was noted that he worked as a government contractor and had missed eight to ten days of work in the past year due to his chronic fatigue disability. Following an examination, the examiner opined that the Veteran did not meet the criteria for chronic fatigue syndrome and stated that his symptoms were instead most likely due to a psychiatric disorder, such as depression. However, the symptoms that he did have resulted in weakness or fatigue and caused increase absenteeism at work. It was also noted that they had moderate effects on sports and recreation, a mild effect on chores, shopping, and exercise, and no effect on other activities of daily living. At his February 2012 hearing, the Veteran testified that he felt depressed because he was tired so much and noted that he had been prescribed various antidepressants. He stated that nothing seemed to help his fatigue. He also had difficulty staying focused at work and problems getting up in the morning to go to work and often got there at the last minute, which frustrated his wife because they carpool together. On weekends, the Veteran often sleeps late or does not get up at all. He testified that his performance ratings at work were not as good as they had been before, and the Veteran felt that this was because of his chronic fatigue symptoms. He had difficulty focusing and remembering things. The Veteran's wife also testified that the Veteran is often tired and has problems focusing on projects. His fatigue limits social plans, and the Veteran does not drive much because he is tired. The Veteran provided another VA examination on May 24, 2012, during which he reported that his chronic fatigue symptoms had worsened since his prior examination. He indicated that he easily falls asleep and sometimes stays in bed on the weekends. He had been prescribed several medications, but nothing seemed to help his chronic fatigue. He also tried several antidepressants with no improvement. He further reported having chronic pain. The Veteran stated that he experiences debilitating fatigue, generalized muscle aches or weakness, forgetfulness, and poor concentration due to his chronic fatigue disability. It was noted that his symptoms waxed and waned and restricted his activity by less than 25 percent of the pre-illness level. The Veteran gets easily exhausted doing chores. He did not have periods of incapacitation due to chronic fatigue syndrome. The Veteran reported that he missed eight days of work in the past year due to chronic fatigue syndrome. Viewing the evidence in the manner most favorable to the Veteran, the criteria for a 10 percent rating for chronic fatigue syndrome were met for the period prior to May 24, 2012. The Veteran reported that he took antidepressants to treat his chronic fatigue syndrome, although they were also used to treat other disorders at the same time. By the nature of these medications, they would be taken on a daily basis. Thus, the Veteran required continuous medication to control his chronic fatigue symptoms and met the criteria for a 10 percent rating during this time period. The Board has also considered whether the Veteran met the criteria for an initial evaluation in excess of 10 percent prior to May 24, 2012. However, there was no evidence that his symptoms were nearly constant and restricted routine activities by less than 25 percent of the pre-illness level or that they waxed and waned resulting in periods of incapacitation of at least two but less than four weeks total duration per year. In fact, the June 2008 VA examiner indicated that the Veteran did not have debilitating fatigue, and his symptoms were considered stable. It was also noted that he reported only missing 8 days of work in the prior year due to his disability. As such, the preponderance of the evidence weighs against an initial evaluation in excess of 10 percent prior to May 24, 2012. In addition, the Board concludes that the Veteran is not entitled to an evaluation in excess of 20 percent for chronic fatigue syndrome on or after May 24, 2012. The evidence does not reveal symptoms that are nearly constant and restrict routine activities to 50 to 75 percent of the pre-illness level, or that wax and wane resulting in periods of incapacitation of at least four but less than six weeks total duration per year. Indeed, the May 2012 VA examiner stated that the Veteran's symptoms restricted his activity by less than 25 percent of the pre-illness level and indicated that there were no periods of incapacitation. It was also noted that the Veteran had only missed 8 days of work in the past year due to his disability. These findings are also consistent with the other evidence, including the Veteran's testimony. The Veteran and his wife both testified that he had difficulty getting up to go to work or to do chores, but indicated that he was usually able to do these activities even though he sometimes needed rest periods. Therefore, the Board finds that the Veteran is not entitled to an increased evaluation for the period beginning on May 24, 2012. C. Conclusion In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected GERD and chronic fatigue syndrome are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the 10 rating for his GERD specifically contemplates his primary complaints of substernal arm and shoulder pain, epigastric distress, difficulty swallowing, and intermittent heartburn. Similarly, the Veteran's staged ratings for his chronic fatigue syndrome contemplate his primary complaints of fatigue and cognitive impairment, such as difficulty focusing and remembering things. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected GERD and chronic fatigue syndrome under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Subject to the provisions governing the award of monetary benefits, a 10 percent rating is granted for GERD prior to May 24, 2012. A rating in excess of 10 percent for GERD for the entire appeal period is denied. Subject to the provisions governing the award of monetary benefits, a 10 percent rating, but no higher, is granted for chronic fatigue syndrome prior to May 24, 2012. A rating in excess of 20 percent for chronic fatigue syndrome on or after May 24, 2012, is denied. ____________________________ __________________________ JESSICA J. WILLS F. JUDGE FLOWERS Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs