Citation Nr: 1334996 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-13 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial rating higher than 60 percent for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for left ear hearing loss disability. REPRESENTATION Appellant represented by: Niki Fisher, Attorney ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from June 1986 to March 1988 and from December 1990 to May 1991. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. During the pendency of the claim, a November 2012 Decision Review Officer decision increased the rating for CFS from 10 percent to 60 percent, from April 27, 2006, the effective date of service connection. This did not satisfy the Veteran's appeal. The Veteran was scheduled for a videoconference hearing before the Board in July 2013. He failed to report for the hearing without explanation and has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed withdrawn. FINDINGS OF FACT 1. Throughout the initial rating period, the Veteran's CFS has more nearly approximated signs and symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of pre-illness levels, or signs and symptoms that wax and wane, than it has signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 2. A left ear hearing loss disability has not been present at any time during the pendency of the Veteran's claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for CFS have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.88b, Diagnostic Code 6354 (2012). 2. The criteria for service connection for a left ear hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in response to her claim for service connection for hearing loss by a June 2006 letter, prior to the initial adjudication of the claim. In addition, she was provided all required notice in response to her claim for service connection for CFS by a March 2007 letter, prior to the initial decision rating the disability. The Board also finds VA has complied with its duty to assist the Veteran in the development of her claims. In this regard, the record reflects that service treatment records and all available post-service medical evidence identified by the Veteran, to include private and VA outpatient treatment records, have been obtained. In addition, the Veteran has been afforded appropriate VA examinations in connection with the claims decided herein. Examinations conducted, as discussed below, address the nature and extent of the left ear hearing loss, and the nature and extent of the Veteran's CFS. The Veteran has not asserted, and the evidence of record does not show, that there has been a material change in the Veteran with respect to either of these claimed conditions since the most recent examinations. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims on appeal. II. Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Claim for Higher Rating for CFS A. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). CFS is rated under Diagnostic Code 6354, which states that debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms of the disability are rated as follows: 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). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). B. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran was afforded a VA Gulf War Registry Examination in February 2006. Her history of being stationed in Saudi Arabia during the Persian Gulf War was noted. Findings as contained in this examination report are questionable, as the report identifies the Veteran as an adult female and the mother of healthy children, but then also identifies the examinee as a circumcised adult male with fully descended testes. There is no resolution of this apparent discrepancy in the examination record, and hence the Board cannot judge the examination report to be reliable, since the Board cannot reliably discern what findings are attributable to the Veteran. In any event, the report of this examination does not address the criteria for rating CFS. In August 2006 the Veteran was afforded a VA examination addressing CFS. She reported having difficulty telling when she was sick due to having so many aches and pains, and feeling unwell most of the time. She reported having only low-grade fever occasionally, but having recurrent pharyngitis with swollen glands lasting at least two to three weeks and recurring every three months. She reported being able to walk 15 to 20 minutes, but that if she did too much her legs would ache, and she would become fatigued and get a migraine. She asserted that her fatigue episodes lasted 24 hours or longer after exercise, and that if she became overly fatigued she would be unable to do anything for two to three days. She denied migratory joint pains, neurological symptoms, sleep problems, a skin condition, or cardiac problems. She reported that she had continued migraine headaches on the right side with sharp pain, vestibular dysfunction, dizziness, and unstable gait. She asserted that these migraines occurred seven to nine times monthly and lasted three to four days. Treatment for the migraines included medications; a dark, quiet room; and an ice pack. The Veteran was also afforded a VA examination in June 2007 addressing her CFS. She reported that she was tired all the time and that she had multiple swollen lymph nodes and joint pain. Symptoms were reported to be episodic, and the Veteran was receiving cognitive behavioral therapy. The Veteran was also noted to have had multiple recurrent infections beginning in 2002, including sinus infections and urinary tract infections. The June 2007 examiner noted that the Veteran had been treated for migraine headaches since 2002, and noted the record of a November 2006 neurological evaluation for the migraines reflecting a suspicion that a component of the Veteran's CFS symptoms may be attributable to the Topamax taken for migraines. The examiner noted that upon system review the Veteran denied a recent history of genitourinary disease; a history of abdominal disorders or gastrointestinal problems; and a history of arthritis, arthralgias, or muscle weakness or pain associated with CFS. The examiner found full range of motion and 5/5 strength in all muscle groups, while noting that the Veteran expressed pain and painful range of motion during the examination "by [her] statement, facial grimace, resistance to [range of motion] movement, moaning [and] groaning, and blowing air through [her] teeth." The examiner assessed that the Veteran's complaints of fatigue, headaches, and myalgias were consistent with cytomegalovirus infection. He traced the chain of events leading to the Veteran's current condition to the Veteran reported sinus infection in 2002. The examiner then concluded that the Veteran's current symptoms were not attributable to Gulf War Syndrome. The examiner differentiated the Veteran's right ear saccule dysfunction as distinct from the symptoms he attributed to the cytomegalovirus infection. The June 2007 examiner, in an addendum opinion, expressed substantial doubt that the Veteran has CFS due the her Persian Gulf War exposure, noting the elapsed time of 12 years prior to onset of symptoms, and noting the absence of objective criteria or tests to arrive at a diagnosis of CFS. The examiner concluded, simply, that there was "no evidence at all" that the Veteran had CFS due to her Persian Gulf War experiences. The Veteran in statements submitted in 2007 objected to the findings of the June 2007 examiner. The Board notes in this regard that the Veteran has been granted service connection for CFS on a presumptive basis, and hence the question of whether CFS is related to service is moot. The June 2007 examination report is only relevant for its findings of no current symptoms attributed to CFS. Treatment records reflect treatment for many physiological conditions, but with much treatment focused on psychological care, migraine headaches, infections, and saccule dysfunction with vertigo. A mood disorder, migraine headaches, and saccule dysfunction with vertigo have been separately service connected and separately rated, and are not the subject of the present appeal. The regulation precluding pyramiding prevents assignment of a higher rating for the Veteran's CFS based on symptoms attributed to these separately rated conditions. 38 C.F.R. § 4.14. VA psychotherapy/ mental health treatment records over the claim period reflect the Veteran engaged in household activities including the care of her children. At a VA Gulf War CFS examination in April 2010, the Veteran reported a history of general aches throughout her body since her return from the Persian Gulf War, and asserted that this pain was like having the flu. She added that the pain was worst in her hands, with difficulty gripping and occasional loss of strength, though without swelling. She also reported experiencing pain or tightness/tension in her shoulders and her lower back. She complained of tiredness and intermittent fatigue since returning from the Persian Gulf War. The examiner noted that there had been no significant changes or interventions since the diagnosis of CFS in 2003. The Veteran reported that she had worked as an insurance agent for 18 years, but that she had not worked since November 2009 due to missing too much work, which in turn was due to her fatigue, migraines, and dizziness. She was noted to be currently engaged in VA vocational rehabilitation. The Veteran reported that her fatigue had an extreme effect on her everyday functioning, that it was present five to six days per week, that it was typically present all day, and that it was extreme in nature. She denied any impact on her sleep. The April 2010 VA Gulf War CFS examiner assessed "numerous problems, some of unclear basis." The examiner also noted that the Veteran reported chronic fatigue had an unclear basis. Additional assessments included psychological problems including difficulty concentrating, memory problems, depression, and anger control issues. The Veteran reported sleep issues and chronic migraines, both of which were noted to be treated with medication. A VA neurological consultation was also performed in April 2010. The neurologist noted that the Veteran had significant depression and PTSD, and that she reported some unusual cognitive problems unrelated to either of these psychiatric disorders. A PET scan identified a right frontal lobe lesion possibly representing encephalomalacia. The neurologist assessed multi-factorial headache, vertigo, unusual pattern of cognitive impairment, and chronic nausea and vomiting without weight loss (as self-reported). The Board has carefully reviewed the evidence of record. Treatment records and reports of recent examinations reflect the Veteran's self-reports of nearly constant CFS symptoms which restrict daily activities and wax and wane, but do not appear by the weight of the evidence, or indeed by the Veteran's own assertions, to result in incapacitation requiring bed rest and treatment by a physician. Neither the medical evidence nor the Veteran's own assertions support a finding that the Veteran's CFS restricts the Veteran's daily activities almost completely, or that they occasionally preclude self-care. Rather, treatment records including the Veteran's psychotherapy notes reflect that the Veteran performs daily activities including self-care, household tasks, and caring for her children. The apparently greater impairment in this case, by the Veteran's self-report, is her chronically recurrent migraine condition, for which she is separately rated. The Board thus finds that the Veteran's CFS more nearly approximates the criteria for a 60 percent rating than the criteria for a 100 percent rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 60 percent rating under the schedular criteria. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. C. Other Considerations The Board has considered whether the claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As explained above, the manifestations and functional impairment due to the Veteran's CFS are consistent with the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not warranted. Finally, the Board notes that the Veteran has already been granted a total rating based on unemployability due to service-connected disabilities effective from the day following her last date of full-time employment. The Veteran does not contend and the evidence does not suggest that she is unemployable due solely to her CFS. Therefore, the Board has concluded that the issue of entitlement to a total rating based on unemployability due to CFS has not been raised in this case. IV. Claim for Service Connection for Left Ear Hearing Loss A. Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. B. Factual Background and Analysis There is no medical evidence showing that the Veteran has been found to have sufficient hearing impairment in the left ear to qualify as a disability at any time during the period of this claim. Moreover, the Veteran was afforded VA audiology examinations for compensation purposes in August 2006 and September 2009. On the authorized audiological evaluations, pure tone thresholds, in decibels, were as follows for the left ear: HERTZ 500 1000 2000 3000 4000 August 2006 5 10 5 15 10 September 2009 5 15 5 10 10 In August 2006, speech audiometry revealed speech recognition ability of 96 percent in the left ear. In September 2009, speech audiometry also revealed speech recognition ability of 96 percent in the left ear. Post-service audiological treatment records during the claim period and prior to the claim period are consistent in finding no hearing loss disability of the left ear. Treatment and examination records are thus consistent in showing no hearing loss disability in the left ear at any time during the claim period. While the Veteran is competent to address her self-perceived symptoms of disability, she is not competent to state that her hearing impairment is sufficient to qualify as a disability for VA compensation. Moreover, even if she were competent to render such an opinion, her opinion would be of lesser probative value than the medical evidence prepared by skilled professionals showing that she does not have sufficient hearing impairment in the left ear to qualify as a disability. Accordingly, this claim must also be denied. The Board has also considered the doctrine of reasonable doubt in reaching this decision but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. (CONTINUED ON NEXT PAGE) ORDER An initial rating higher than 60 percent for chronic fatigue syndrome is denied. Service connection for left ear hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs