Citation Nr: 21066886 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-22 490A DATE: November 2, 2021 ORDER Entitlement to a disability rating in excess of 60 percent for chronic fatigue syndrome (CFS) is denied. REMANDED Entitlement to service connection, including a temporary total evaluation for convalescence after surgery, for a back disability, to include as secondary to service-connected CFS is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The manifestations of the Veteran's CFS are not so severe as to restrict routine daily activities almost completely and occasionally preclude self-care. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for CFS 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 6354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1988 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board previously remanded the case in December 2019 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 60 percent for CFS is denied. The Veteran is seeking a higher disability rating for his service-connected CFS. Specifically, the Veteran contends the severity of his disability is not accurately reflected by his assigned disability rating. 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 facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's CFS is rated at 60 percent under Diagnostic Code 6354. Diagnostic Code 6354 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 60 percent 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. A 100 percent 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. A note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b. Turning to the evidence of record, the Veteran was afforded a VA examination for CFS in February 2016. Continuous medication was not required for the control of the Veteran's CFS. He reported he had been on medication in the past, but it had not helped. The VA examiner indicated that debilitating fatigue had reduced the Veteran's daily activity level to less than 50 percent of his pre-illness level for the past six months or longer. Symptoms of his CFS included debilitating fatigue, low grade fever, nonexudative pharyngitis, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, migratory joint pains, neuropsychological symptoms, and sleep disturbance. Cognitive impairments attributable to CFS included poor attention, inability to concentrate, and forgetfulness. The Veteran's symptoms were nearly constant and restricted routine daily activities to 50 to 75 percent of his pre-illness level. The examiner noted that symptoms due to CFS did not result in periods of incapacitation. The examiner indicated that the Veteran's CFS impacted his ability to work. The Veteran worked as a financial planner and had been working from home three to four hours a week. He was not able to work over one hour a day due to pain and fatigue. He did not take medication and did not sleep well. The Veteran noted he was unable to exercise or walk over 500 feet due to pain. He experienced shakiness, diaphoresis, and nausea due to fatigue. Pursuant to the Board's December 2019 remand, the Veteran was afforded a VA examination for CFS in November 2020. The Veteran reported his condition began in the 1990s with constant fatigue while doing normal daily activities. Continuous medication was not required for the control of his CFS. The Veteran did not have an acute onset of CFS and debilitating fatigue had not reduced his activity level to less than 50 percent of his pre-illness level. Symptoms attributable to the Veteran's CFS included debilitating fatigue and worsening severe fatigue. Cognitive impairments associated with CFS included brain fog. The VA examiner indicated that the Veteran's symptoms were nearly constant and restricted his daily activities from 50 to 75 percent of the pre-illness level. Periods of incapacitation due to CFS were not indicated. The examiner noted that the Veteran's CFS did not impact his ability to work. The examiner explained that CFS was a common condition and difficult to definitively diagnose. There was no evidence that the condition was causing impairment. The Board finds that the VA examinations of record do not reflect that the Veteran is entitled to a disability rating greater than 60 percent for his service-connected CFS. As noted above, Diagnostic Code 6354 requires 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 in order to warrant a 100 percent disability rating. Treatment records for the period on appeal similarly fail to reflect the severity of signs and symptoms of CFS necessary for a 100 percent evaluation. The Board has considered the lay statements of record describing the symptoms and effects of the Veteran's CFS. However, even these statements do not detail manifestations of CFS so severe as to almost completely restrict routine daily activity and occasionally preclude self care. The Board acknowledges the Veteran's contentions that the disability rating assigned to his CFS fails to compensate him for pain associated with CFS. However, Diagnostic Code 6354 does indeed consider pain in its rating criteria. Specifically, the code considers "debilitating fatigue, cognitive impairments (such as an inability to concentrate, forgetfulness, or confusion, or a combination of other signs and symptoms. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (emphasis added). A May 2012 VA examination noted that for VA purposes, a diagnosis of CFS required, in pertinent part, six or more of the following: acute onset of the condition, low grade fever, non-exudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pains, neuropsychological symptoms, or sleep disturbance. The Veteran's diagnosis of CFS was confirmed on the May 2012 examination with symptoms of generalized muscle aches or weakness and migratory joint pains noted. With the consideration of all symptoms related to the Veteran's CFS, the record fails to support a disability rating higher than 60 percent for his CFS. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for the assignment of a 100 percent rating for CFS; the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b);38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection, including a temporary total evaluation for convalescence after surgery, for a back disability, to include as secondary to service-connected CFS is remanded. 2. Entitlement to TDIU is remanded. The Veteran is seeking to establish service connection for a back disability, to include a temporary total evaluation for convalescence after surgery, and entitlement to TDIU. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the August 2019 Board hearing and accompanying statement, the Veteran's representative asserted that the Veteran had injured his back on multiple occasions during service; however, these injuries were not documented in service records. In December 219, the Board determined that the Veteran was competent to report his back injuries and remanded the Veteran's claim for a VA examination. In November 2020, following an examination and review of the record, a VA examiner opined that the Veteran's back disability was less likely than not related to service or caused by his service-connected CFS. The RO requested an addendum opinion in December 2020, noting that the VA examiner had used the same rationale for both direct and secondary opinions. In the addendum opinion, the examiner explained that the Veteran believed his back injury to be due to traumatic events in service, which confounded the etiology of his back condition being due to CFS. Further, the Veteran underwent back surgery in 2016 but wasn't diagnosed with CFS until November 2020. Therefore, the examiner stated that it was his opinion that "a greater than 50% causal relationship" could not be established between the Veteran's back disability and CFS. The examiner also opined that "a greater than 50% aggravation relationship" could not be established between the Veteran's back disability and CFS, explaining that a November 2020 VA examination for CFS did not note any musculoskeletal complaints due to CFS and indicated there was no impact of CFS on the Veteran's ability to work. The Board finds that the November and December 2020 VA examiner's opinions are inadequate. First, a veteran may advance multiple theories of entitlement to service connection for the same disability without delegitimizing one theory over another. Here, the examiner found the Veteran's belief that his back disability was incurred in service confounded the etiology that it was caused by CFS. However, the examiner had already opined that the Veteran's current back disability was not related to any injury incurred in service. Next, the examiner used the wrong standard when providing rationale in support of his opinions, as the relevant inquiry is whether it is as least as likely as not that the claimed condition is related to service, not whether there is a more definitive relationship (i.e., greater than 50 percent). The examiner also incorrectly noted that the Veteran was diagnosed with CFS in 2020 (he was diagnosed with CFS in 2012) and in part, based his opinion on this false premise, explaining there was a temporal issue with the onset of back pain and the diagnosis of CFS. Finally, while the November 2020 VA examination may not have reflected musculoskeletal issues related to CFS, a February 2016 VA examination and treatment records during the appeal period show that the Veteran experienced muscle and joint aches and pains. Due to these deficiencies, the Board finds that remand for an addendum opinion is warranted. The decision on the issue of entitlement to service connection for a back disability may impact upon the Veteran's claim for TDIU. Therefore, the Board finds this issue to be inextricably intertwined and the Board must defer the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, regarding the Veteran's back disability. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran's back disability was caused by his service-connected CFS? Please explain why or why not. b) Is it as least as likely as not (50 percent probability or greater) that the Veteran's back disability is aggravated (worsened beyond its natural progression) by his service-connected CFS? Please explain why or why not. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.