Citation Nr: 18140881 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-29 114 DATE: October 9, 2018 ORDER The application to reopen the claim for service connection for short-term memory loss is dismissed as moot. An initial disability rating in excess of 40 percent for chronic fatigue syndrome (CFS) is denied. (The claims of entitlement to service connection for plantar fasciitis and service connection for bilateral hearing loss will be the subject of a separate Board decision). REMANDED Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran’s symptoms of short-term memory loss, attention deficit, and forgetfulness are manifestations of his service-connected CFS disability and have been evaluated as such; the claim to reopen service connection for short-term memory problems is therefore rendered moot. 2. The Veteran’s CFS disability is not shown to be manifested by symptoms that restrict his routine daily activities to less than 50 percent of his pre-illness level and have not resulted in periods of incapacitation. CONCLUSIONS OF LAW 1. The application to reopen the claim for service connection for short-term memory loss is dismissed as moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.101 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998). 2. The criteria for an initial disability rating in excess of 40 percent for CFS are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.88b; Diagnostic Code (DC) 6354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1993. These matters come to the Board of Veterans’ Appeals (Board) from the March 2013 and June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction resides with the Waco, Texas RO. An informal hearing conference was held with a Decision Review Officer in March 2018, during which two of the issues on appeal here were noted. In addition to the issues adjudicated herein, the Veteran perfected an appeal as to the issues of entitlement to service connection for plantar fasciitis and service connection for bilateral hearing loss. The Veteran has requested a Board hearing before a Veterans Law Judge in connection with these issues; as such, the claims for entitlement to service connection for plantar fasciitis and service connection for bilateral hearing loss will be the subject of a separate Board decision issued at a later date after the requested hearing has been afforded to the Veteran. To the contrary, the Veteran did not request a hearing for the issues addressed in this decision. Regarding the application to reopen the claim for service connection for short-term memory loss, the Board notes that the Veteran was initially denied service connection for a “nervous disorder (claimed as recent short-term memory loss)” in a March 1994 rating decision. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the March 1994 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2012, the Veteran filed a claim for service connection for “short term memory loss.” As such, the claim has been appropriately characterized as a claim to reopen service connection for short-term memory loss. For the reasons discussed below, the Board finds that dismissal of this issue is appropriate. According to the Centers for Disease Control and Prevention (citing the Institute of Medicine), the diagnostic criteria for CFS requires three symptoms and at least one of two additional manifestation. Specifically, the three required symptoms include: (1) a substantial reduction or impairment in the ability to engage in pre-illness levels of activity; (2) post-exertional malaise; and (3) unrefreshed sleep. The two additional manifestations include: (1) cognitive impairment; and (2) orthostatic intolerance. Notably, information widely available to the public on the worldwide web indicates that cognitive impairment includes problems with memory and attention deficit. The Veteran has been awarded service connection for CFS and has been assigned a 40 percent disability rating by the RO. The Veteran’s 40 percent rating has been assigned, in part, due to symptoms of memory loss, attention deficit, and forgetfulness. Specifically, a June 2013 VA CFS examination report noted that the Veteran’s cognitive impairment “attributable to chronic fatigue syndrome” included poor attention, inability to concentrate, forgetfulness, and confusion. Similarly, a March 2016 VA CFS examination report indicated that the Veteran’s cognitive impairment attributable to CFS included forgetfulness and short-term memory loss. In a November 2005 VA treatment record, the Veteran was noted to have “cyclic fatigue/cyclic difficulties concentrating.” In sum, the Veteran has been awarded service connection for CFS, which is inclusive of the Veteran’s cognitive impairments, including memory loss, attention deficit, and forgetfulness. In other words, there is no indication, either lay or medical, that there are symptoms of another separate disorder that is distinct from the one for which service connection has been granted. Mittleider v. West, 11 Vet. App. 181, 182 (1998). For these reasons, there no longer remains a case or controversy with respect to the Veteran’s claim for service connection for short-term memory loss. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). As such, dismissal of this claim is warranted. Initial Rating Analysis - CFS Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran’s initial rating claim, the Board has considered it from the assigned initial effective date, which the Veteran has not appealed, as well as the currently assigned staged rating period. The Veteran’s service-connected CFS is currently rated as 40 percent disabling under DC 6354. 38 C.F.R. § 4.88b, DC 6354. Pursuant to DC 6354, which provides ratings for CFS consisting of debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms, a 40 percent disability 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. 38 C.F.R. § 4.88b, DC 6354. A 60 percent disability 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. Id. A maximum 100 percent disability 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. Id. For the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Id. The relevant evidence of record includes VA treatment records dated in November 2005. At that time, the Veteran’s “cycles of fatigue” were noted to run 4-5 days and occurred about 5-6 times a year. He also had cyclic difficulties concentrating. During a February 2013 VA Gulf War medical examination, the Veteran reported having fatigue that began in 1991. The Veteran indicated that he had experienced episodes of “severe” fatigue that lasted for 1-2 weeks. He explained that, due to his fatigue, he had to alter his daily activities. No further discussion regarding the Veteran’s fatigue was provided by the examiner. The Veteran was afforded a VA “CFS” examination in June 2013. During the evaluation, the Veteran reported that he began to experience fatigue and tiredness in service and that these symptoms continued. He reported experiencing fatigue, joint pain, and headaches. He also indicated that there was no cycle and that episodes could occur at any time. These symptoms lasted hours and sometimes days (up to 1 week). Debilitating fatigue was noted to occur “at least twice a month lasting hours to days.” Muscle aches and weakness occurred “all the time” and severe episodes were noted to occur “at least once every other month.” Migratory joint pain was present every day. The Veteran was also noted to have cognitive impairment associated with his CFS, including poor attention, inability to contrate, forgetfulness, and confusion. The Veteran’s CFS symptoms were noted as “nearly constant.” The examiner then indicated that the Veteran’s debilitating fatigue reduced daily activity levels to 50 to 75 percent of pre-illness levels. The examiner further noted that the Veteran’s symptoms did not result in periods of incapacitation. The Veteran was afforded another VA CFS examination in March 2016. During the evaluation, the Veteran reported that he sometimes fell asleep at his desk, but he denied missing work due to his fatigue. Symptoms of CFS were noted to include generalized muscles aches or weakness, sleep disturbance, and joint pain. He also had cognitive impairment noted as “forgetfulness.” The examiner stated that the Veteran’s symptoms waxed and waned and that the Veteran’s debilitating fatigue reduced daily activity by less than 25 percent of the pre-illness levels. The Veteran’s symptoms did not result in periods of incapacitation. Based upon a review of the evidence of record discussed above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 40 percent CFS. The Veteran generally contends that a higher initial rating is warranted for his CFS disability. The Veteran is competent to report that he feels his symptoms are worse than evaluated. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, neither he nor his representative have presented evidence that the Veteran possesses the medical credentials necessary to determine that his CFS is productive of greater impairment than reflected in the medical evidence and discussed above. Thus, his lay statements alone, without corroborating medical evidence, is insufficient to outweigh that of the VA medical examiners. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the objective medical evidence discussed above documents that the Veteran’s CFS was not manifested by symptoms that were nearly constant and which restricted his routine daily activities to less than 50 percent of his pre-illness level. His CFS has also not been found to result in periods of incapacitation (i.e., requiring bed rest and treatment by a physician). The Veteran has also indicated that despite his symptoms, he had not missed any days of work due to his CFS disability. See March 2016 VA examination report. For these reasons, the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3 (2017). REASONS FOR REMAND During a February 2013 VA headaches examination report, the examiner confirmed a diagnosis of migraines. The examiner indicated that the Veteran’s headaches were noted to occur prior to his deployment to the Gulf War; as such, they were not related to the Gulf War. The examiner did not opine whether the Veteran’s headaches were otherwise related to service. VA obtained another medical opinion in April 2013 where the examiner stated that the Veteran’s migraine disability was not related to service. In support of this opinion, the examiner stated that the Veteran had 3 days of headaches in 1989 associated with a sinus condition. The Veteran’s headaches were noted to be related to an isolated event of congestion and not related to any complaints of headaches. The Board finds that clarification is still needed regarding the nature and etiology of the Veteran’s migraine headaches. In this regard, the February 2013 examiner noted that the Veteran’s headaches occurred prior to his deployment; however, the April 2013 VA examiner noted that these headaches were not “complaints of headaches,” but were symptoms associated with a sinus condition. In other words, unlike the February 2013 examiner, the April 2013 examiner did not appear to believe that the Veteran had a migraine headache disability in service (but instead, had a sinus condition manifested by headaches). Further, the Centers for Disease Control and Prevention (citing the Institute of Medicine) has indicated that the diagnostic criteria for CFS requires three symptoms and at least one of two additional manifestation. Specifically, the two additional manifestations include: (1) cognitive impairment; and (2) orthostatic intolerance. Notably, orthostatic intolerance includes headaches. For these reasons, the Veteran should be afforded a new VA examination for several reasons. First, the examiner should address whether the Veteran has a separate and distinct migraine headache disability (as opposed to a symptom associated with CFS). Moreover, if the Veteran is found to have a separate and distinct migraine headache disability, an opinion regarding the etiology of such a disorder should be discussed. The matters are REMANDED for the following actions: 1. After updating any outstanding VA medical records, provide the Veteran with an appropriate VA examination to determine the nature and etiology of his claimed migraine headache disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The complete claims file, including a copy of this remand, should be provided to the examiner. The examiner should then address the following: (a.) Indicate, with full explanation, whether the Veteran’s headaches are a separate and distinct diagnosis or whether they are symptoms associated with the Veteran’s service-connected CFS disability. (b.) If the Veteran’s migraine headaches are found to be a separate and distinct diagnosis, the examiner should opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran’s headaches were incurred in service or are otherwise related to service. A complete rationale for any opinion expressed should be included in the examination report. 2. Thereafter, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel