Citation Nr: 21004383 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-25 080 DATE: January 27, 2021 ORDER 1. The appeal to reopen a claim of service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness, is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability on an extraschedular basis prior to January 6, 2017, is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War Era. 2. An unappealed February 1998 rating decision denied the Veteran service connection for CFS essentially based on a finding that he was not shown to have CFS, and competent medical evidence showed that his symptom of fatigue was part of the overall (known clinical) diagnosis of generalized anxiety disorder, which is not currently service-connected. 3. Evidence received since the February 1998 rating decision is cumulative or does not tend establish that the Veteran has CFS or otherwise relate his symptom of fatigue to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for CFS; and does not raise a reasonable possibility of substantiating such claim. 4. Prior to January 6, 2017, the Veteran’s service-connected disabilities of bilateral pes planus (rated 30 percent), lumbar spine degenerative disc disease (DDD) (rated 10 percent), cervical spine DDD (rated 10 percent), and tinnitus (rated 10 percent), were not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment; were not shown to have required frequent hospitalization, or to have caused marked interference with employment, or have involved any other exceptional factors that would render application of regular schedular standards impractical; and referral of this case to the Director of Compensation and Pension for consideration of an extraschedular TDIU rating prior to January 6, 2017 is not warranted. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for CFS may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. Prior to January 6, 2017, the schedular requirements for a TDIU rating were not met; a TDIU rating prior to January 6, 2017, is not warranted; and referral for consideration of an extraschedular TDIU rating prior to January 6, 2017 is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1980 to September 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision. An interim ( May 2019 ) rating decision granted a TDIU rating from August 6, 2018 to January 11, 2019 (the effective date of assignment of a 100 percent schedular rating for the Veteran’s posttraumatic stress disorder (PTSD)). Another interim ( August 2019 ) rating decision granted an earlier effective date of January 6, 2017 for the TDIU rating. In May 2020, a virtual hearing was held before the undersigned; a transcript is in the record. Although the Regional Office (RO) reopened the claim of service connection for CFS when it decided the underlying issue on the merits in a December 2018 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. 1. The appeal to reopen a claim of service connection for CFS is denied. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A February 1996 rating decision denied service connection for CFS as due to an undiagnosed illness, essentially because it was found to not be related to his service. The Veteran did not appeal the decision; however, a July 1997 rating decision (which also denied service connection for CFS) reconsidered his claim and noted that it was being reviewed under the provisions of an All Station Fast Letter 96-73 dated July 16, 1996. The Veteran did not appeal this decision; however, a November 1997 rating decision recharacterized the issue as service connection for generalized anxiety disorder/panic attacks and depression (claimed as chronic fatigue, forgetfulness, difficulty concentrating, and irritability as due to an undiagnosed illness) and denied the claim, in part, because CFS had not been diagnosed and fatigue was considered a symptom of the diagnosis of generalized anxiety disorder. Additional evidence was submitted, and a February 1998 rating decision once again denied service connection for generalized anxiety disorder/panic attacks and depression (claimed as chronic fatigue, forgetfulness, difficulty concentrating, and irritability as due to an undiagnosed illness) essentially on the same basis as the November 1997 rating decision. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the February 1998 rating decision included the Veteran’s service treatment records (STRs), VA treatment records, and lay statements by the Veteran. The Veteran’s STRs are silent for complaints, findings, treatment or diagnosis of CFS. Evidence received since the February 1998 rating decision includes VA and private treatment records, and lay statements and testimony from the Veteran. A June 2004 VA treatment record notes that the Veteran reported that he had experienced mild fatigue since starting to exercise 2-3 months ago but did not currently have fatigue. A July 2006 VA treatment record notes that the Veteran denied having any change in appetite, weight loss, weight gain, fever, or fatigue. A September 2011 VA treatment record notes that the Veteran called VA to report muscle aches, joint stiffness, headaches, weakness and fatigue. The message was forwarded message to his primary care provider; a follow up appointment was not scheduled. A June 2012 VA treatment record notes that the Veteran denied having fever, chills, night sweat, or fatigue. An April 2015 treatment record notes that Geodon (a psychiatric medication) was discontinued due to the Veteran reports of hypersomnolence and fatigue. A December 2016 VA treatment record notes that the Veteran reported that he had experienced fatigue for about 2 months. He had been severely restricting his food and calories in an attempt at weight loss. The provider’s assessment, in part, was that the Veteran’s fatigue was possibly nutrition-related since he was skipping meals and undertaking severe food restrictions for self-imposed weight loss efforts. A July 2017 sleep apnea Disability Benefits Questionnaire (DBQ) notes that obstructive sleep apnea (OSA) was diagnosed, and the provider attributed the Veteran’s persistent daytime hypersomnolence to OSA. On November 2018 CFS examination, it was noted that the Veteran did not currently have and had not been previously had, a diagnosis of CFS. It was noted that he had served in SW Asia from December 1990 to May 1991. The examiner indicated that the Veteran had a diagnosis of OSA which was treated with CPAP and PTSD which was treated with individual psychotherapy, Haloperidol, Fluoxetine, and Trazadone. The examiner noted that CFS was a diagnosis of exclusion, that the Veteran did not meet the diagnostic criteria for CFS, and that he had no signs or symptoms or cognitive impairment attributable to CFS. The examiner opined that the Veteran’s fatigue symptoms are related to OSA. A July 2019 VA mental health treatment record notes that the Veteran reported feeling tired or having little energy for several days. The provider noted that OSA was recently diagnosed, and that the Veteran was directed to use a CPAP. A May 2020 VA treatment record notes that the Veteran sent a message in a VA message portal that he had been suffering from chronic fatigue and sleep apnea for decades and inquired if the clinic could provide an official diagnosis of CFS based on the medical history in his treatment record. A VA provider responded and informed the Veteran that he had been diagnosed with severe sleep apnea which could make him sleepy during the day and for which he had been provided letters documenting its presence and severity. The provider also urged the Veteran to get back to using his CPAP regularly because sleep apnea made sleep unrefreshing, increased the risk of heart attack and stroke, and worsened GERD. It was also noted that on a recent sleep study the Veteran’s breathing had stopped or decreased 35 times per hour which does not help memory or brain function. The provider noted that sleep apnea was distinct from CFS and that the Veteran needed to contact his primary care physician if he wanted to further discuss the treatment. At the May 2020 virtual hearing, the Veteran testified that no doctor had informed him that he had a diagnosis of CFS or signs or symptoms of CFS. He related that he had only been treated for sleep apnea and PTSD. [It was also noted at the hearing that the Veteran submitted evidence to VA on April 30, 2020 but that it was not associated with the record. A November 2020 VA letter to the Veteran notes that the evidence had still not been received, and he was asked to resubmit any such evidence. No further evidence was received.] Because service connection for CFS was previously denied based essentially on a finding that CFS was not diagnosed and the Veteran’s fatigue symptoms were symptoms of disabilities such as OSA and a mental disability (and encompassed by the criteria for rating such disorders), for evidence to be new and material in this matter, it would have to tend to show that he has a diagnosis of CFS or that his fatigue complaints constitute a separate and distinct disability entity that is etiologically relate to his service. No evidence received since February 1998 is new evidence that links the Veteran’s asserted CFS or manifestations of fatigue to his service. He has not provided a medical opinion that shows he has a diagnosis of CFS or that links any current symptoms of fatigue to his service (other than as a symptom of a service-connected disability encompassed by the rating for such disability). The evidence received since February 1998 (private and VA treatment records and testimony that show that episodes of fatigue have been attributed to his self-imposed severe calorie restriction and OSA) is new, but not material, evidence. It does not relate positively to an unestablished fact necessary to substantiate the claim of service connection for a CFS, and does not raise a reasonable possibility of substantiating such claim. Accordingly, the claim of service connection for CFS may not be reopened. 2. Entitlement to an extraschedular TDIU rating prior to January 6, 2017 is denied. The Veteran contends that prior to January 6, 2017, (and from either 2007 or 2012) he was unable to maintain substantially gainful employment due to his service-connected bilateral pes planus, lumbar spine DDD, cervical spine DDD, and tinnitus. The 40 percent combined ratings from June 19, 2002 and 50 percent combined ratings from August 26, 2015 do not meet the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. Accordingly, the analysis must turn to whether the Veteran’s service-connected disabilities nonetheless rendered him unemployable, requiring that the case be referred to the VA Compensation Service Director for consideration of an extraschedular TDIU rating. When a veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), consideration must be given to the possibility of an extraschedular TDIU rating. Because the Board may not award an extraschedular TDIU rating in the first instance, if one is deemed warranted, the claim must be submitted to VA's Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Therefore, the Board’s analysis is limited to either granting or denying the request for referral for extraschedular consideration for the period prior to January 6, 2017. A November 1997 VA treatment record notes that the Veteran reported that he was working but continued to have some issues at work. A July 2003 VA treatment record notes that the Veteran reported working as a parking attendant and prior to that servicing vending machines for approximately one year. A September 2003 VA treatment record notes that the Veteran had no work limitations except that he should avoid running and sit down when he experiences discomfort from his flat feet. A July 2009 VA treatment record notes that the Veteran was then an unemployed college student. He reported that he was dismissed from his job as a substitute teacher in 2007 because the school system was dissatisfied with his performance, and that had not been able to find work since then. He had been looking for a job in the security field and indicated that he was currently enrolled in college classes. On February 2010 VA foot examination, the Veteran reported that his foot pain had worsened and that he took Tylenol with codeine for pain. He reported pain in both feet while standing and walking. He reported flare-ups, due to prolonged walking and standing, that occurred weekly or more often and lasted less than one day. He indicated that he was able to stand for up to one hour, and to walk 1-3 miles, and that he did not use assistive devices. On examination, there was no evidence of painful motion, swelling, tenderness, instability, or weakness bilaterally; however, there was evidence of abnormal weight-bearing bilaterally. The examiner opined that flat feet significantly impacted the Veteran’s occupational activities due to pain; regarding daily life activities (ADL’s), the examiner noted that the bilateral flat feet had mild effect on chores and recreation, moderate effect on shopping, exercise and travel, and no impact on feeding, bathing, and driving. A February 2010 VA treatment record notes that the Veteran reported that he was unemployed and had been unemployed for the past 2-5 years. He indicated that he was unable to find work. A December 2012 VA treatment record notes that the Veteran reported that he was homeless and had recently lost his job (of unreported duration) with a security firm (not due to his service-connected disabilities). He reported that he experienced low back pain with prolonged standing. A June 2013 VA treatment record notes that the Veteran was working with a VA representative to obtain employment. A September 2013 VA compensated work therapy record notes that the Veteran was capable of competitive employment, was interested in competitive employment, and was not considered too ill or disabled to work. It was also noted that on departure from the work program, he was employed on call with a service company (and earlier had noted he hoped to be a security guard with them). While in the program, he was provided resume assistance, job search assistance, transportation assistance, job referrals, and interview skills training. A December 2014 VA treatment record notes that the Veteran reported that he was working and functioning well. He described his mood as good and that he enjoyed riding his bike and going to work. A January 2015 VA physical therapy treatment record notes that the Veteran reported that he did not need to work out because he was completely healed, and that he was able to work full time. On October 2016 VA back examination, degenerative arthritis of the lumbar spine was diagnosed. The Veteran reported constant mild pain that increased with prolonged standing for 30 minutes, bending, and walking. He denied having flare ups. The examiner opined that the back disability had no functional impact. On October 2016 VA neck examination, degenerative arthritis of the spine was diagnosed. The Veteran reported constant pain between his shoulder blades and in the mid neck that intermittently radiated to his right arm. He rated the pain at 5/10. He related that the pain worsened when he slept, lifted heavy objects, or moved heavy objects. On examination there was some limitation of turning his neck. The examiner opined that the Veteran’s neck disability had no functional impact. On the Veteran’s January 2019 TDIU application, he reported that he last worked full time in May 2017 and had not tried to work since then. The only employer he listed (with employment dates from February to May 2007), confirmed that employment was terminated in May 2007. He also reported that in 2012 he received a bachelor’s degree with a major in interdisciplinary studies. A July 2019 VA phone contact report notes that the Veteran reported he last worked with USPS in 1997 and was not sure why he had listed May 2017 on his TDIU application. He reported that he was employed as a security guard for 30 days in 2007. At the May 2020 virtual hearing, the Veteran testified that he was not currently working and had not worked since 2012, when he worked as a security guard. He related that while working as a security guard, he was able to sit down and often had to patrol the complex. At times his feet hurt, and he was not able to walk or stand for an extended period of time. He did not take any time off due to his disabilities, but did have some issues with coworkers. At the outset the Board finds that the Veteran has been less than forthright in his reports that he last worked in 2012 (or even earlier). The Board finds those accounts to be self-serving and compensation-driven, and not credible. They are directly contradicted by clinically record data in the record, including a December 2014 treatment record notation that he reported he was working and functioning well and enjoyed riding his bicycle and working. And a January 2015 physical therapy record notes that he reported he did not need to work out because he had healed completely, and was able to work full time. Based on the foregoing, the Board finds that while the record does not show when the Veteran was actually last employed (because he has not provided information regarding the employment that was ongoing in December 2014 and January 2015, to allow for verification) it was some time after January 2015. Furthermore, the evidence of record does not support that prior to January 6, 2017 (when PTSD and OSA were added to the service connected disabilities and became for consideration in this matter), the Veteran’s service-connected bilateral pes planus, cervical spine DDD, lumbar spine DDD, and tinnitus, were (of themselves) of such nature and severity as to preclude his participation in substantially gainful employment, and warrant referral for consideration of an extra-schedular TDIU rating under 38 C.F.R. § 3.321(b); 4.16(b). The records of his treatment for service-connected disabilities between January 2015 and January 2017 do not suggest that the disabilities then service-connected rendered him unemployable. The Board’s conclusion does not suggest that prior to January 6, 2017 the Veteran’s then-service-connected disabilities would not have presented some difficulty in obtaining and maintaining substantially gainful employment. Indeed, his symptoms are not negligible but consequential; they restricted him to the types of employment that did not require lifting heavy objects (although he apparently did so to some extent based on clinical notations), or prolonged standing or walking. Rather, the Board finds that considering the functional loss from his then-service-connected physical disability symptoms, the Veteran was not incapable of participating in the less strenuous and physically demanding types of regular gainful employment (monitoring surveillance cameras, night watchman in a public building, grounds security, tracking inventory, and other such forms of occupation, which were not inconsistent with the acknowledged physical limitations imposed by his feet, neck, and lower back disabilities). Significantly, he acquired a college education (and after 2012 participated in a VA training program to improve employment-seeking skills and assistance searching for employment, following which, as the record shows, he was in fact employed). Accordingly, it is the Board’s conclusion that the preponderance of the evidence is against a finding that prior January 6, 2017, the disability picture presented by the Veteran’s service-connected disabilities was such as to warrant referral to the Director of Compensation for consideration of an extraschedular TDIU rating. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.