Citation Nr: 18145544 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-27 996 DATE: October 29, 2018 ORDER Entitlement to a rating in excess of 10 percent for chronic fatigue syndrome from August 24, 2012 to June 14, 2016 is denied. Entitlement to a 20 percent rating for chronic fatigue syndrome from June 15, 2016 to November 22, 2016 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a 60 percent rating for chronic fatigue syndrome since November 23, 2016 is granted subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From August 24, 2012 to June 14, 2016 the appellant’s symptoms due to chronic fatigue syndrome waxed and waned and resulted in periods of incapacitation of at least one but less than two weeks total duration per year. 2. From June 15, 2016 to November 22, 2016, the appellant’s symptoms due to chronic fatigue syndrome waxed and waned, resulting in periods of incapacitation of at least two but less than four weeks total duration per year 3. Since November 23, 2016, the disability picture related to the Veteran’s chronic fatigue syndrome most nearly approximates signs and symptoms that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level. 4. Since November 23, 2016, the Veteran’s chronic fatigue syndrome has not been manifested by symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chronic fatigue syndrome from August 24, 2012 to June 14, 2016 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.88b, Diagnostic Code 6354. 2. The criteria for a 20 percent rating, and no more, for chronic fatigue syndrome were met from June 15, 2016 to November 22, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 4.88b, Diagnostic Code 6354. 3. The criteria for a 60 percent rating, and no more, for chronic fatigue syndrome have been met since November 23, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 4.88b, Diagnostic Code 6354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to June 2006. The Veteran submitted additional evidence following certification. Automatic waiver applies. 38 U.S.C. § 7105(e). Increased rating From August 24, 2012 to June 14, 2016 In August 2013, VA continued a 10 percent rating for chronic fatigue syndrome. The Veteran disagreed with the decision and perfected this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Chronic fatigue syndrome - debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms is evaluated as follows: 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 (10 percent); symptoms which are nearly constant and restrict routine daily 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 (20 percent); symptoms which are nearly constant and restrict routine daily 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 (40 percent); symptoms which are nearly constant and restrict routine daily 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 (60 percent); and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care (100 percent). 38 C.F.R. § 4.88b, Diagnostic Code 6354. Note to this provision indicates that for the purposes of evaluating this disability, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Id. at Note. Military treatment facility records dated in September and October 2012 note complaints of debilitating fatigue, difficulty sleeping, and decreased focus. At a VA examination in November 2012, the Veteran reported he was constantly tired. Some days were better but it depends on how well he sleeps. He reported just starting to use Wellbutrin and the effectiveness was noted as “partial”. The examiner opined that debilitating fatigue did not reduce daily activity level to less than 50 percent of pre-illness level. The Veteran indicated he was working and that he would not let it affect his work. No cognitive impairment was noted. The symptoms did not result in periods of incapacitation which required bed rest and treatment by a physician. A February 2013 military treatment facility record indicates that the Veteran started Wellbutrin a few months ago but he did not have any increased energy or changes in mood, and continued to have sleep issues. In June 2013, VA received a treatment summary from the Veteran’s private psychologist. He stated that the Veteran had been his patient since January 2013. The Veteran reported significant chronic fatigue and impaired activity level. The appellant also reported some interpersonal conflict between the family because of his lack of energy and inability to complete normal household tasks. The examiner did not report that the appellant’s disorder required bed rest. In a November 2015 statement the Veteran’s private psychologist indicated that behaviorally, the Veteran’s difficulties were such that he had been incapacitated approximately 10 days per month over the past year. The claimant’s symptoms included headaches, dizziness, facial and fingertip numbness, low concentration and attention where he is unable to focus on tasks, low energy, and easy fatigability. The psychologist stated that using VA’s rating schedule, the Veteran met the criteria where he nearly was consistent at restricting his daily routine activities to at least 50 percent of his pre-illness level. His symptoms reportedly waxed and waned resulting in periods of incapacitation of at least 6 weeks total per year. Significantly, the examiner did not report that the disorder required bed rest. As noted above, by VA regulation chronic fatigue syndrome is only considered incapacitating when the disorder requires both bed rest and treatment by a physician. It is clear from the foregoing that between August 24, 2012, i.e., the date the claimant claimed entitlement to an increased rating, and June 14, 2016, the appellant needed physician treatment of this disorder. What is also clear, however, is that no physician found that the disorder required bed rest. Without evidence of incapacitating episodes manifested by required bed rest there is no basis for an increased rating during this term. 38 C.F.R. § 4.88b. From June 15, 2016 to November 22, 2016 On June 15, 2016 VA received a report from the Veteran’s treating physician at Eglin Air Force Base completed a disability benefits questionnaire. The physician stated that the Veteran continued to experience fatigue with physical and psychologic symptoms and he had no improvement despite multiple therapies. Symptoms were listed as debilitating fatigue, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, neuropsychologic symptoms, and sleep disturbance. He also experienced cognitive impairment with poor attention, an inability to concentrate, forgetfulness, and confusion. The Veteran’s symptoms were judged to wax and wane, and to restrict routine daily activities to 50 percent to 75 percent of the pre-illness level. The physician further stated that the symptoms result in periods of incapacitation, to include a need for bed rest, of at least two weeks but less than four weeks or more over the past 12 months. Under the provisions of 38 C.F.R. § 4.88b, Diagnostic Code 6354, a 20 percent rating is in order where chronic fatigue syndrome requires treatment and bed rest at least two weeks but less than four weeks or more over a 12 month period. Given the findings of the June 15, 2016 examiner the Board will grant a 20 percent rating for this term. Without evidence, however, of periods of incapacitation (i.e., bed rest plus physician treatment) of at least four but less than six weeks total duration per year, an evaluation in excess of 20 percent is not in order. Since November 23, 2016 On November 23, 2016, VA received a report from the Veteran’s treating physician who completed another disability benefits questionnaire. The symptoms were described as in the June 2016 examination; however, the physician now stated that symptoms restrict routine daily activities to less than 50 percent of the pre-illness level. He also indicated that periods of incapacitation which required bed rest and treatment by a physician totaled at least six weeks or more per year. Military treatment facility record dated in July 2018 indicates the Veteran continues to complain of chronic fatigue, feeling dazed, and having low energy. He was now trying acupuncture. The Veteran generally argues that the currently assigned rating does not accurately reflect the severity of his disability. In his Form 9, the Veteran stated that he had tried various medications to help his chronic fatigue syndrome, but to no avail. He further argued that the conclusion that his daily routine or activity level was not affected was false. In support, he submitted a copy of his journal which keeps track of his symptoms and their severity. Review of the journal shows the Veteran’s symptoms are generally manifested by significant tiredness, headaches, and confusion. On review, the medical evidence since November 23, 2016 shows that the Veteran’s chronic fatigue syndrome causes incapacitation, i.e., a need for bed rest and physician treatment at least six weeks or more per year. As such, a 60 percent rating is in order from that date. There is no evidence, however, that symptoms due to chronic fatigue syndrome have at any time since November 23, 20016 been nearly constant and so severe as to restrict routine daily activities almost completely. Further, there is no evidence that the disorder has occasionally precluded self-care. Hence, an evaluation in excess of 60 percent is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent that the claim is denied the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C. § 5107 DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel