Citation Nr: 21000101 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-32 923 DATE: January 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to service connection for fatigue, claimed as due to chronic fatigue syndrome (CFS) or an undiagnosed illness, is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is granted. REMANDED Entitlement to service connection for a joint pain, claimed as due to an undiagnosed illness, is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension has been manifested by diastolic pressure predominantly below 110 and systolic pressure predominantly below 200 throughout the appellate period. 2. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of CFS or an undiagnosed illness. 3. The Veteran has IBS, a medically unexplained chronic multi-symptom illness. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for hypertension have not been met throughout the entire appellate period. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.104, Diagnostic Code 7101. 2. The criteria for entitlement to service connection for fatigue, to include as due to CFS or an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for IBS have been met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to January 2000. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. The hearing transcript is of record. The Board remanded the claim in February 2020 for further development by the RO. The case has been returned to the Board for further appellate action. 1. Entitlement to a rating in excess of 10 percent for hypertension A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertensive vascular disease, to include hypertension and isolated systolic hypertension, is rated under Diagnostic Code (DC) 7101. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term “hypertension” means the diastolic blood pressure (the bottom number) is predominantly 90mm. or greater, and “isolated systolic hypertension” means that the systolic blood pressure (the top number) is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, DC 7101, Note 1. The Veteran contends that his service-connected hypertension has worsened and requires a significantly higher dosage of medication to control. See August 2015 Statement in Support of Claim; January 2020 Board hearing. The Veteran underwent a VA examination in October 2020. His blood pressure was taken three times at that examination and the readings were as follows: 150/87, 146/82, and 129/80. The Veteran also underwent a VA examination in January 2016. His blood pressure was taken three times at that examination and the readings were as follows: 122/78, 118/76, and 120/74. VA treatment records indicate the following blood pressure readings: 116/69 in August 2015; 116/77 in October 2016; and 139/88 in October 2017. Private treatment records indicate the following blood pressure readings: 153/99 and 169/89 in May 2019; 129/86 in November 2019; 128/94 and 137/93 in November 2018; 118/78 in August 2018; 125/82 in November 2017; 152/97 in August 2017; 121/84 in May 2016; and 139/95 in April 2016. The Board notes that there is one blood pressure reading of 168/118 in October 2014, related to injuries from a fall due to a possible overdose or poisoning. Private treatment records for August 2014 indicate a blood pressure reading of 140/90 and a note that the Veteran often had readings in that range; he also had some blood pressure readings in the 170s and 180s, as well as some diastolic pressure readings in the 100s. On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned 10 percent rating. Despite an apparent one-time blood pressure reading of 168/118 in October 2014, there is a preponderance of evidence that the appellant’s diastolic pressure has not been predominantly 110 or more, nor has his systolic pressure been predominantly 200 or more. A single reading does not provide a basis upon which to award a rating in excess of 10 percent, given the repeated blood pressure tests otherwise documented in the record. McCarroll v. McDonald, 28 Vet. App. 267, 274 (2016) (holding that a single diastolic blood pressure reading of 100 does not demonstrate a history of diastolic pressure “predominantly” of 100 or more, as required by DC 7101). Furthermore, August 2014 private treatment notes indicate that approximately in the same time period, the Veteran’s diastolic blood pressure readings were not predominantly 110 or more, nor was his systolic pressure predominantly 200 or more. Therefore, the Veteran’s hypertension does not more closely approximate the criteria contemplated for a 20 percent rating. The Board acknowledges the Veteran’s statement that his service-connected hypertension has worsened and requires a significantly higher dosage of medication to control. However, the evaluation for hypertension is based not on the amount of medication required to control it, but on the level of control that can be achieved. See 62 Fed. Reg. 65207, 65215 (December 11, 1997). To the extent that the Veteran believes that a higher rating is warranted, this contention is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a rating in excess of 0 percent for hypertension is not warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection 2. Entitlement to service connection for fatigue, claimed as due to CFS or an undiagnosed illness Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term “chronic” means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The term “MUCMI” refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). CFS constitutes a MUCMI. 38 C.F.R. § 3.317(a)(2)(B). For VA purposes, a diagnosis of CFS requires: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity or pattern that is different from headaches in the premorbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and/or (x) sleep disturbance. 38 C.F.R. § 4.88(a). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Here, the Veteran had active service in the Southwest Asia theater of operations. See DD-214. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran underwent a VA examination in October 2020 and the examiner indicated that the Veteran does not manifest debilitating fatigue or any of the other findings, signs and symptoms attributable to CFS. The examiner opined that the Veteran does not meet the criteria for a diagnosis of CFS and no diagnosis was warranted. The Veteran also underwent a VA examination in January 2016. The examiner indicated that the Veteran manifested nearly constant symptoms of generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; and migratory joint pains. As discussed below, the issue of service connection for a joint disability is remanded for further development. As there is no diagnosis of a disability, the Veteran’s signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). Service connection under this regulation still requires the finding of a disability, and here, the evidence weighs against a finding of the contended fatigue disability. In a January 2020 private treatment record, the Veteran reported feeling tired all the time and that his bloodwork did not reveal a cause. In a December 2019 private treatment record, the Veteran reported fatigue. However, in a November 2019 private treatment record, the Veteran denied fatigue and weakness. The next available record of fatigue is more than one year earlier. In a July 2018 private treatment record, the Veteran reported occasional episodes of fatigue but denied chronic concerns. In a January 2018 private treatment record, the Veteran reported sleep disturbances and restless sleep. In September and October 2017 private treatment records, the Veteran denied fatigue, weakness or sleep disturbance. The next available record of fatigue is dated two years earlier. In an August 2015 VA treatment record, the Veteran reported fatigue and joint discomfort. CFS is the closest diagnosis by analogy given the Veteran’s reported symptoms as set out above. Under DC 6354, a 10 percent rating is warranted when debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms 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. 38 C.F.R. § 4.88b, DC 6354. Incapacitation exists only when a licensed physician prescribes bed rest and treatment. Id., Note. Here, the record does not show that the Veteran’s symptoms resulted in periods of incapacitation of at least one but less than two weeks total duration per year or that they are controlled by continuous medication. Accordingly, presumptive service connection as an undiagnosed illness is not warranted. Direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As stated above, the Board finds that the Veteran does not have a current diagnosis of CFS or any clinical disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the preponderance of the evidence is against finding that any fatigue began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) indicate that he reported fatigue in February 1997. However, in the August 1999 separation examination, he denied easy fatigability. Moreover, in May 1998, the Veteran reported getting proper rest. In September 1993 and October 1986, he denied frequent trouble sleeping. Thus, a grant of service connection on a direct basis is not warranted. The Board acknowledges the lay statements of the Veteran. While the Veteran is competent to report that he experiences fatigue, he does not have the required skill, knowledge or expertise to determine the likely etiology of such fatigue or to diagnose CFS. These issues are medically complex, as they require the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for IBS MUCMIs also include functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317(a)(2)(B). Functional gastrointestinal disorders include IBS. Id.; Note to paragraph 38 C.F.R. § 3.317(a)(2)(i)(B)(3). An October 2020 VA examination shows the Veteran has a diagnosis of IBS, as of the date of the examination. A diagnosis of acute IBS was first noted in a January 2020 private treatment record; prescription medication controlled his symptoms. The January 2016 VA examination noted that the Veteran reported gastrointestinal issues, including frequent loose stools, constipation and cramping; he reported these symptoms previously to health care providers and was told it was likely a virus. Complaints of abdominal pain were noted in April 2016 and August 2017 private treatment records. The Veteran stated in the January 2020 Board hearing that symptoms began in 1994 following deployment to Somalia, and that he had gastrointestinal issues and cramping since then. See Gutierrez v. Principi, 19 Vet. App. 1 (2004) (objective medical evidence is not required for an award of service connection under 38 U.S.C. § 1117). The Veteran’s IBS has existed from at least January 2020. Thus, it is considered chronic under the regulatory definition. Moreover, the IBS has manifested to a degree of 10 percent or more because the Veteran complained of gastrointestinal symptoms, as described above, which were treated with medication. As there is no affirmative evidence to the contrary, see 38 C.F.R. § 3.317(a)(7)(i)-(iii), the Veteran’s IBS is considered a MUCMI and presumptive service connection is warranted. REASONS FOR REMAND The February 2020 Board remand directed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of the reported joint pain, to include all necessary testing and evaluation. This was not done. The October 2020 VA examination evaluated only the Veteran’s shoulder and arm conditions. It did not evaluate his knee and lower leg or elbow and forearm conditions. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of directive # 1, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the reported joint pain. All necessary testing and evaluation should be performed, and all findings set forth in detail. The examiner is asked to elicit from the Veteran and the record, a detailed history of the Veteran’s joint pain signs and symptoms. Thereafter, the examiner should provide an opinion as to the following: (a) Indicate whether the Veteran’s joint pain signs and symptoms are: (i) associated with any specific pathology or diagnosed disorder; (ii) considered an undiagnosed illness; or (iii) considered a medically unexplained chronic multi-symptom illness. (b) For any clinically diagnosed disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset during or is otherwise etiologically related to service, to include acknowledged environmental exposures while in Southwest Asia theater of operations. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.