Citation Nr: 18151347 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-17 930 DATE: November 16, 2018 ORDER Entitlement to an earlier effective date for the grant of service connection for chronic fatigue syndrome is denied. Entitlement to an earlier effective date for the grant of service connection for a right knee strain is denied. Entitlement to an earlier effective date for the assignment of a 10 percent rating for residuals of a right ankle strain is denied. Entitlement to an initial rating greater than 20 percent for chronic fatigue syndrome is denied. Entitlement to a rating greater than 30 percent for asthma is denied. REMANDED In addition, the issues of entitlement to an increased rating for a right knee strain and for an increased rating for residuals of a right ankle strain are remanded, as well as, the issue of entitlement to a total disability rating based upon unemployability (TDIU). FINDINGS OF FACT 1. A rating decision issued July 1997 denied service connection for fatigue and for a right knee condition. An initial noncompensable evaluation for residuals of a right ankle condition was granted effective May 29, 1994. 2. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of that rating decision; thus, it became final. 3. The claims to reopen and the claim for an increase were received in April 2014. 4. The record evidence shows that the Veteran’s service-connected chronic fatigue syndrome is manifested by, at worst, symptoms that are nearly constant but have not restricted routine daily activities to less than 50 percent of the pre-illness level. 5. Prior to October 15, 2015, the Veteran’s bronchial asthma has manifested in no worse than an FEV-1 of 97 percent predicted. CONCLUSIONS OF LAW 1. The July 1997 rating decision, which denied service connection for fatigue and for a right knee condition and granted an initial noncompensable evaluation for residuals of a right ankle condition, is final. 38 U.S.C. §7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. 2. The criteria for an earlier effective date than April 25, 2014, for service connection of and the currently assigned ratings for chronic fatigue syndrome, a right knee condition, and residuals of a right ankle condition have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.151 (a), 3.156, 3.400, 4.7, 4.126, 4.130. 3. The criteria for entitlement to an initial rating greater than 20 percent for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.88a, 4.88b, Diagnostic Code (DC) 6354. 4. Prior to October 15, 2015, the criteria for a disability rating in excess of 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97 DC 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines from October 1986 to May 1994. EARLIER EFFECTIVE DATE CLAIMS The Veteran claims that he is entitled to an earlier effective date for service-connection chronic fatigue syndrome and for a right knee injury. Further, he contends that he should be awarded a higher rating for residuals of a right ankle injury prior to the date currently assigned. In support thereof, the Veteran contends that he was originally denied in 1997 and these claims should be back-dated to then. 1. Prior final determination Preliminarily, the Board notes that a rating decision issued July 1997 denied service connection for fatigue and for a right knee condition. In that same rating decision, an initial noncompensable evaluation for residuals of a right ankle condition was granted effective May 29, 1994. The Veteran did not file a notice of disagreement with that action. However, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). This new and material evidence will serve as a notice of disagreement and the appeal will not become final. Yet, new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Prior to the July 1997 rating decision, in June 1997, the RO sent the Veteran a letter so that he could add additional information for his claim. In September 1997, the Veteran sent in several letters from his friends and family. Because these statements came after the rating decision, the RO was asked to clarify with the Veteran the purpose of the letters. There is a report of contact in the file from October 2, 1997 that states that the statements submitted were in response to the June 1997 letter requesting additional information and that the Veteran would be submitting a formal claim at another date with new issues. The Veteran did not file another claim until July 2005 and further did not raise any issue addressed in the July 1997 rating decision. Therefore, the Board finds that these letters were not new and material evidence because they were not submitted to contest the July 1997 rating decision, but instead to bolster the arguments for the July 1997 rating decision. Further, the Veteran clarified that he would be submitting a new claim, which he did not do for much later. Therefore, because the Veteran did not submit and new and material evidence within one year of the July 1997 rating decision nor did he submit a notice of disagreement, the July 1997 rating decision is final. 2. Earlier effective date On April 25, 2014, the Veteran submitted an application for service connection for a right knee condition and chronic fatigue syndrome and for an increase in his right ankle condition. The regulation governing effective dates for service connection claims is clear—the effective date is the date of receipt of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). As for increased ratings, it is just as clear—the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date or the date of receipt of the claim. See 38 C.F.R. § 3.400 (o)(2). In this case, the Veteran applied for service connection for a right knee condition and for chronic fatigue syndrome on April 25, 2014. Further, it is not factually ascertainable that an increase in disability occurred prior to April 25, 2014, for a right ankle condition. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than April 25, 2014. In summary, the Board finds that the criteria for an earlier effective date than April 25, 2014 have not been met for these claims. INCREASED RATINGS CLAIMS Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). No such consideration is warranted in this case because the Veteran’s symptomology has remained consistently below what is required for the next higher evaluation. 1. Entitlement to an initial rating greater than 20 percent for chronic fatigue syndrome The Veteran asserts that his work is mentally and physically demanding because of his chronic fatigue syndrome. Under DC 6254, chronic fatigue syndrome, is rated as follows: a 10 percent disability rating is assigned when symptoms wax and wane but results in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms are controlled by continuous medication. A 20 percent rating is assigned is assigned when symptoms 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. A 40 percent rating is assigned when symptoms 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 per year. A 60 percent rating is assigned when symptoms 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. And a 100 percent rating is authorized when symptoms are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Id. Chronic fatigue syndrome is considered incapacitating only when it requires bed rest and treatment by a physician. See Note to 38 C.F.R. § 4.88b, DC 6354. A VA medical report in October 2014 notes that he is too busy to nap because he works 55 hours a week. In December 2015, the Veteran reported that he is always tired. Through the medical records, the Veteran has a provisional diagnosis of obstructive sleep apnea, with significant daytime sleepiness noted. In a VA examination for chronic fatigue syndrome in December 2014, the Veteran reported that he works full-time but that he has to take a nap after work on a daily basis. He can do his recreational activities on the weekend, but must rest frequently. He takes prescriptions for his condition and the prescriptions help to control his symptoms. However, in describing his symptoms, the VA examiner gave the opinion that his symptoms do not reduce his daily activity level to less than 50 percent of his pre-illness level, but he did have fatigue lasting 24 hours after exercise. There was no functional impact from his chronic fatigue syndrome because he worked full-time. The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an initial rating greater than 20 percent for chronic fatigue syndrome. The evidence shows that his service-connected chronic fatigue syndrome is manifested by, at worst, symptoms that are nearly constant but have not restricted routine daily activities to less than 50 percent of the pre-illness level. The Board acknowledges that the Veteran has reported consistently in lay statements that his service-connected chronic fatigue syndrome is a debilitating illness and the Board does not doubt his sincerity in describing how the impact of chronic fatigue syndrome. Nevertheless, there is no indication that the Veteran experiences symptoms of chronic fatigue syndrome which are nearly constant and so severe as to restrict routine daily activities to a greater level. The Board notes that the Veteran works full-time and is able to accomplish this work with a daily nap and that there is a provisional diagnosis of sleep apnea that could also explain his symptoms of sleepiness and need to nap. The Board has considered the Veteran’s lay opinion that his chronic fatigue syndrome is more severe. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding severity of the chronic fatigue syndrome to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing the severity of the same. Moreover, he has offered only conclusory statements on the same. In view of the above, the weight of the evidence is against the claim for an increased rating for chronic fatigue syndrome. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating greater than 30 percent for service-connected asthma The Veteran’s asthma is currently rated as 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6602 (2015) for bronchial asthma. Diagnostic Code 6602 provides for a 10 percent disability rating where pulmonary function tests (PFTs) show any of the following: FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or where intermittent inhalational or oral bronchodilator therapy is required. A 30 percent disability evaluation is warranted where PFTs show any of the following: FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent disability evaluation is warranted where PFTs show any of the following: FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is warranted where PFTs show any of the following: FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2017). The Veteran was afforded a VA examination in connection with his asthma claim in December 2014. Based on a description of his condition, the examiner found that he required use of daily therapy, but not bronchodilators, or oral or parenteral corticosteroid medications. Further, he didn’t require the use of antibiotics or oxygen therapy. He had no episodes of respiratory failure, but he had one visit for an exacerbation and after he had his prescription changed. On respiratory testing, all of his FVC/FEV values were greater than 97 percent predicted and reflect his pulmonary functioning testing. The Veteran did not need to use a bronchodilatory for his testing. The tests were within normal limits. Overall, the examiner felt the Veteran’s asthma would have no impact on his ability to work. Medical records the Veteran’s asthma prescription has stayed the same since October 2014. Overall, the records do not reflect that the Veteran has any PFTs which show any of the following: FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Instead, the Veteran’s asthma was within normal limits and there was only one episode of an exacerbation and his medication was changed because of it. In view of the above, the weight of the evidence is against the claim for an increased rating for service-connected asthma. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMANDED ISSUES 1. Entitlement to a rating greater than 10 percent for residuals of a right ankle sprain is remanded. 2. Entitlement to an initial rating greater than 10 percent for a right knee strain is remanded. The Veteran was afforded a VA examination for his right knee and ankle conditions in December 2014. The Veteran reported flare-ups of pain of his knee and that it would ache and swell. As for his ankle, the Veteran reported that his ankle gives out frequently, with associated pain and weakness, and that it resulted in limitation of motion. The examiner gave the opinion that in absence of further objective evidence, she could not render an opinion without resorting to mere speculation on the issues of functional limitations after repetitive use and during flare-ups of pain. Since these examinations, the Board received judicial guidance on the requirement for increased ratings examinations for musculoskeletal disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). Pertinent examinations in 2006, 2013, and 2014 do not include passive range of motion measurements or pain on weight-bearing testing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Further, no examiner attempted to estimate any additional function loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). 3. Entitlement to a TDIU is remanded. The Board notes that the Veteran contested the total rating assigned to him for his service-connected disabilities. The Board interprets this to mean that the Veteran believes he is entitled to a TDIU, even though he was working full-time. Given that the complete evaluation of the Veteran’s right knee and ankle condition is needed to determine his eligibility for a TDIU, that matter is inextricably intertwined with the TDIU issue and a remand is necessary. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Further, the Veteran should have an opportunity to supply information related to a formal TDIU claim on remand. The matters are REMANDED for the following action: 1. Ask the Veteran to submit information for a claim of TDIU. 2. After completing the above, schedule the Veteran for an examination of the current severity of his right knee strain and residuals of a right ankle sprain. 3. Adjudicate the issue of entitlement to a TDIU and the Veteran’s service-connected right knee and right ankle disabilities. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock