Citation Nr: 21009398 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-04 318 DATE: February 22, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to February 4, 2020, and a rating in excess of 60 percent since February 4, 2020, for chronic fatigue syndrome, is denied. FINDINGS OF FACT 1. During the period prior to February 4, 2020, the Veteran’s chronic fatigue syndrome symptoms were not nearly constant and did not restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; did not result in periods of incapacitation of at least four but less than six weeks total duration per year. 2. During the period from February 4, 2020, the Veteran’s chronic fatigue syndrome symptoms have not been so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for chronic fatigue syndrome prior to February 4, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.88b, Diagnostic Code (DC) 6354. 2. The criteria for a disability rating in excess of 60 percent for chronic fatigue syndrome from February 4, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.88b, DC 6354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to November 2009. This matter is on appeal from an April 2017 rating decision. The Veteran provided testimony at a February 2020 videoconference hearing before the undersigned Acting Veterans Law Judge at the Winston-Salem RO. A transcript of the hearing is associated with the claims folder. In August 2020, the Board remanded the case for further development. The development requested having been completed, the case is now appropriate for appellate review. The Board notes that a November 2020 Report of General Information shows that the Veteran indicated that he had more information to submit in support of his appeal, but to date no such information has been received. Increased rating for chronic fatigue syndrome Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran seeks a rating in excess of 20 percent prior to February 4, 2020, and in excess of 60 percent thereafter, for his service-connected chronic fatigue syndrome under Diagnostic Code (DC) 6354. Under DC 6354 for chronic fatigue syndrome, ratings are provided for symptoms including debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 20 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; signs and symptoms that 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 warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is warranted for signs and symptoms of chronic fatigue syndrome 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 warranted for signs and symptoms of chronic fatigue syndrome 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 DC 6354 provides that, for the purpose of rating chronic fatigue syndrome, the disability 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, in a July 2015 statement received by VA in September 2015, the Veteran complained of episodes of fatigue that lasted 1 to 2 weeks during which he was unable to get out of bed and perform basic daily functions which caused his business to suffer. In a September 2015 statement the Veteran’s former spouse recounted his struggle with fatigue and exhaustion. At a January 2016 VA chronic fatigue syndrome Disability Benefits Questionnaire (DBQ) examination, the Veteran presented with a history of chronic fatigue syndrome (CFS) since January 2016. He did not require continuous medication for control of CFS nor did he have an acute onset of CFS. However, debilitating fatigue reduced his daily activity level to less than 50 percent of pre-illness level for 6 months or longer. Symptoms attributable to CFS included nonexudative pharyngitis, generalized muscle aches or weakness, headaches, neuropsychological symptoms, and sleep disturbance. He also had a history of PTSD, obstructive sleep apnea, an occasional sore throat, and bilateral knee and hip pain. Cognitive impairment attributable to CFS included poor attention and an inability to concentrate. The Veteran stated that he forgot where his business was located and had no recollection of conversations he had while driving. He had to write a lot of things down and had difficulty keeping up with online classes which caused him to drop a few courses. The examiner opined that the Veteran’s symptoms, which waxed and waned, restricted routine daily activities by less than 25 percent of the pre-illness level (more than 75 percent of the pre-illness level of activities were not restricted). His symptoms did not result in periods of incapacitation. Regarding functional impact, the examiner opined that CFS did not impact the Veteran’s ability to work. VA treatment records include an April 2016 primary care nurse note which shows that the Veteran’s primary care physician recommended stretching, aerobic exercise, and yoga to help manage his CFS. Another April 2016 report indicates that low impact swimming, walking, biking, a proper diet, and a good night sleep were also recommended. In a September 2016 statement, the Veteran’s former business partner and friend stated that at the beginning of their friendship and partnership he was outgoing, helpful, and eager to work; he was the leader of their team. However, over the years he became less interested in business and their friendship. He began missing meetings and when confronted stated that he had forgotten and was tired. Their partnership ended in December 2015 due to his forgetfulness and fatigue. In a September 2016 statement, the Veteran stated that CFS greatly impacted his life and ability to perform basic functions he once accomplished with ease. He was often confused and forgot simple tasks and important obligations. He sometimes wound up driving completely off course from his intended destination. He was able to accomplish less than 50 percent of his daily tasks, due to the need to stop and rest, forgetfulness, and difficulty figuring things out. He failed to notice any improvement in his symptoms with diet and exercise. At a December 2016 VA contract chronic fatigue syndrome DBQ examination, the Veteran presented with a complaints of fatigue which reduced his productivity by half, confusion, and forgetfulness. He did not require continuous medication for control of CFS, but debilitating fatigue did not reduce his daily activity level to less than 50 percent of pre-illness level. CFS symptoms included fatigue lasting 24 hours or longer after exercise, headaches, and sleep disturbance. Cognitive impairment attributable to CFS was described as an inability to concentrate and forgetfulness. Symptoms were nearly constant. However, they did not result in periods of incapacitation or restrict routine daily activities as compared to pre-illness level. The examiner opined that the Veteran’s disability impacted his ability to work due to the fact that he was unable to concentrate, forgot tasks, and needed to rest between physical activities. In a July 2017 notice of disagreement, the Veteran stated that his disability had worsened to the point he was sometimes unable to get out of bed. He was constantly drained, tired, forgetful, and confused. He was also restricted from doing daily routines due to CFS. During the February 2020 Board hearing, the undersigned asked the Veteran if his symptoms were worse since the last VA examination. The Veteran responded that his symptoms were definitely worse in that he experienced symptoms daily, that his doctors recommended rest, and that his daily activities were significantly affected. He testified that his CFS symptoms included cognitive impairments that included an inability to concentrate, forgetfulness, and confusion. He testified that his disability did not restrict his “living activities.” However, he also testified that he sometimes fell asleep while working and overslept while napping during lunch breaks which affected his performance and resulted in termination in November 2019. Pursuant to the Board’s August 2020 remand, at an October 2020 VA chronic fatigue syndrome DBQ examination, the Veteran reported feeling tired, forgetfulness, taking frequent rest breaks between physical activities, worsening muscle aches, and weight gain. His primary care physician recommended watching his diet and exercising. Additional symptoms included headaches, sleep disturbance, and an inability to concentrate. Continuous medication was not required for control of CFS, but debilitating fatigue reduced daily activity level to less than 50 percent of pre-illness level 6 months or longer. Findings, signs and symptoms attributable to CFS included generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, and sleep disturbance. Generalized muscle aches or weakness were persistent with and without exercise or strenuous activities. Fatigue lasted 24 hours or longer after exercise manifested by muscle ache and tightness. He had pain in his lower back, groin areas, shoulders, and neck. He complained of difficulty concentrating and forgetfulness which affected employment as a business owner and realtor and studying while in college. He stated that his short-term memory was mostly affected. The Veteran’s CFS symptoms were nearly constant and restricted routine daily activities to less than 50 percent of the pre-illness level. However, symptoms did not result in periods of incapacitation. CFS impacted his ability to work and caused a loss of 1 to 2 week in the last 12 months. He reported taking off work for a total of about 3 weeks within the past 12 months due to CFS symptoms, but more often described frequently reporting late for work and previously losing a job due to tardiness. Pursuant to the Board’s August 2020 remand, additional VA treatment records were also obtained, but are silent as to any restrictions of routine daily activities or signs and symptoms of CFS that resulted in periods of incapacitation. After review of the evidence, the Board finds that a rating higher than 20 percent prior to February 4, 2020, or a rating higher than 60 percent since February 4, 2020, for the Veteran’s chronic fatigue syndrome, is not warranted. For the rating period prior to February 4, 2020, a rating more than 20 percent is not warranted because the evidence does not show signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. Specifically, the January 2016 VA examiner opined that the Veteran’s CFS symptoms restricted routine daily activities by less than 25 percent of the pre-illness level. The December 2016 VA examiner opined that the Veteran’s CFS did not reduce his daily activity level to less than 50 percent of pre-illness level. Both examiners opined that his symptoms did not result in periods of incapacitation. Since February 4, 2020, a rating more than 60 percent is not warranted because the evidence does not show signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Specifically, the October 2020 VA examination report noted that the Veteran’s CFS symptoms were nearly constant and restricted routine daily activities to less than 50 percent of the pre-illness level. However, his symptoms did not result in periods of incapacitation. In this regard, the Board notes that in a January 2021 Brief, the Veteran, through his representative, contended that he should be assigned a 60 percent rating prior to February 4, 2020, for CFS. However, as previously discussed, the evidence of record does not support the assigment of a 60 percent rating for CFS prior to February 4, 2020. The Board also notes that although the VA examinations indicate the Veteran’s complaints headaches, sleep impairment, and forgetfulness as symptoms of CFS, the Veteran is separately service-connected for tension headaches secondary to the service-connected PTSD. The Veteran’s PTSD encompasses his symptoms of sleep impairment and forgetfulness. Accordingly, the Board is prohibited from awarding a higher rating for CFS based on complaints of headaches or separate ratings for sleep impairment and forgetfulness as this would amount to impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban, supra, see also December 2017 Statement of the Case. Accordingly, the Veteran is not entitled to a higher rating for his chronic fatigue syndrome during the rating period prior to or since February 4, 2020. In this case, the Veteran is competent to report complaints such as and fatigue and difficulty concentrating, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant higher ratings and has taken these contentions seriously. He is not, however, competent to identify a specific level of disability of his chronic fatigue syndrome, according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. [CONTINUED ON NEXT PAGE] Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). T. SHERRARD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.