Citation Nr: 21010632 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-27 730 DATE: February 25, 2021 ORDER Entitlement to a rating in excess of 60 percent for chronic fatigue syndrome (CFS) is denied. FINDING OF FACT The service-connected CFS was manifested by debilitating fatigue and cognitive impairments that reduced daily activities to less than 50 percent of pre-illness level; but these manifestations were not so severe as to restrict routine daily activities almost completely and which occasionally precluded self-care. CONCLUSION OF LAW Entitlement to 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 (DC) 6354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1982. This appeal is from a June 2015 rating decision. In February 2020, the Veteran had a hearing with the undersigned VLJ. A copy of the proceeding is associated with the electronic claims file. In April 2020, the Board remanded this appeal for further development. At that time, the Board noted that the issue in appellate status was not whether CFS was still formally diagnosed but was instead whether the previously service-connected disability resulted in manifestations causing functional impairment, as outlined in the rating criteria provided in DC 6354. The Board directed that VA records be updated and a new examination be provided. Review of the subsequent record reveals that the Agency of Original Jurisdiction (AOJ) completed these directives and this appeal is ripe for further review. This appeal steams from a December 2011 claim. Subsequent to the Board remand, the AOJ granted a 60 percent rating for CFS from this date. This is a partial grant of the benefits sought. The remaining question before the Board is whether the 100 percent rating is warranted at any time in appellate status. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be “staged.” See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, preponderance of the evidence weighs against the issues on appeal herein. Thus, the benefit-of-the-doubt doctrine is not for application. Entitlement to an increased rating for CFS The Veteran contends that a rating in excess of 60 percent is warranted for CFS but have not made any specific contentions in this regard. As noted the Veteran is currently in receipt of a 60 percent disability rating for chronic fatigue under Diagnostic Code 6354 for the period under appeal. 38 C.F.R. § 4.88b. As no relevant evidence or documents are of record in the year prior to the claim, the period under review is from December 2011 to present. Diagnostic Code 6354 provides ratings for chronic fatigue syndrome 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 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 assigned 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 Diagnostic Code 6354 provides that, for the purpose of rating chronic fatigue syndrome, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b. The Board has thoroughly reviewed the entire relevant record to include the Veteran’s testimony, medical records, and the VA examinations. The Board finds it unnecessary to summarize the VA examinations that addressed the proper diagnosis instead of the manifestations of the service-connected disability. The Veteran underwent relevant VA examinations that addressed these manifestations in January 2012, and May 2013, and a VA contract examination in May 2020. In the May 2013 examination, the examiner found that the Veteran had incapacitating episodes that last at least 4 weeks but less than 6 weeks. In the May 2020 VA contract examination, the examiner found that there were not incapacitating episodes but that symptoms that were nearly constant and that restricted routine daily activities to less than 50 percent of the pre-illness level. Under schedular criteria, this finding is reflective of more severe disability and the AOJ used this finding to grant the current 60 percent rating throughout the appeal period. The examiner found that although the symptoms were nearly constant they did not restrict routine daily activities completely and did not occasionally preclude self-care. There are no medical records that provide findings supportive of the 100 percent rating criteria. As outlined above, the Board has considered the Veteran’s lay description of his symptoms as did the examiners. As described above, however, the medical evidence does not support that his chronic fatigue syndrome warrants a 100 percent disability rating. Considering the Veteran’s testimony and statements of record, he has not detailed manifestations reflecting that his daily routine is almost completely restricted nor provided evidence that he is precluded from self-care due to this disability. 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 chronic fatigue syndrome; the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.