Citation Nr: 21013199 Decision Date: 03/09/21 Archive Date: 03/08/21 DOCKET NO. 19-29 573 DATE: March 9, 2021 ORDER From August 29, 2017 to November 4, 2018, an initial rating of 40 percent for dorsolumbar spondylosis is granted. An initial rating in excess of 40 percent for dorsolumbar spondylosis is denied. Service connection for chronic fatigue syndrome is denied.   FINDINGS OF FACT 1. The Veteran’s back disability has been manifested by painful motion with forward flexion approximating 30 degrees or less for the entire appeal period; ankylosis has not been shown. 2. The Veteran has not been diagnosed with chronic fatigue syndrome. CONCLUSIONS OF LAW 1. From August 29, 2017 to November 4, 2018, the criteria for an initial rating of 40 percent for dorsolumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an initial rating in excess of 40 percent for dorsolumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to April 1987, June 1989 to September 1989, January 1991 to June 1991, November 2005 to January 2006, January 2006 to June 2006 and December 2007 to June 2008. The case is on appeal from a May 2018 rating decision. In a September 2019 rating decision, the back rating was increased to 40 percent effective November 5, 2018. The increased rating matter remains in appellate status as the maximum rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additional evidence was received following the September 2019 statement of the case (SOC). The Veteran submitted a November 2020 waiver of initial Regional Office (RO) consideration of the evidence. See 38 C.F.R. § 20.1305(c). Thus, the claims may be adjudicated by the Board. Increased Rating 1. From August 29, 2017 to November 4, 2018, an initial rating in excess of 20 percent for the back disorder. 2. An initial rating in excess of 40 percent for the back disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Following the Veteran’s August 2017 claim, he was afforded a May 2018 VA examination in which he was diagnosed with dorsolumbar spondylosis. He reported constant pain in his back which produces a pressure sensation. He indicated his back pain is exacerbated when dressing and undressing due to movements that affect his back. The Veteran reported flare-ups which prevent him from continuing his duties and force him to rest. Range of motion testing revealed forward flexion limited to 40 degrees and extension limited to 20 degrees with pain noted on all movements. The Veteran was able to perform repetitive testing with no reduction in range of motion. The examiner found the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. The examiner indicated there was no ankylosis. The examiner stated the Veteran is unable to sit or stand for extended periods of time, has difficulty climbing stairs and is unable to lift or carry heavy weights. Additionally, he indicated the Veteran has no pain with weight bearing. The Veteran was afforded a November 2018 VA examination in which the Veteran reported flare-ups, including caused by bending forward and prolonged sitting and standing. Range of motion testing revealed his forward flexion was limited to 30 degrees with pain noted throughout testing. The examiner reported no ankylosis is present. She noted the functional impact of the Veteran’s back disability includes difficulty with prolonged standing and sitting, as well as prolonged walking. She further stated there is no objective evidence of pain with weight bearing, non-weight bearing or during passive range of motion testing. The Board determines that his initial back rating prior to November 5, 2018 warrants an increased rating to 40 percent due to his limitation of motion and the severity of his symptoms. An increased rating in excess of 40 percent from November 5, 2018, for the back disability is not supported during the appeal period. With regard to the initial rating period, the May 2018 VA examiner indicated the Veteran’s back disability causes constant pain and forward flexion was limited to 40 degrees, with pain noted on all movements. The additional functional impact was described as the Veteran being unable to sit or stand for extended periods of time, difficulty climbing stairs and that he is unable to lift or carry heavy weights. Additionally, the November 2018 VA examiner found forward flexion limited to 30 degrees with pain noted throughout testing. The May 2018 VA examination does not show flexion more nearly approximating 30 degrees. However, the May 2018 VA examination and November 2018 VA examination were conducted in close proximity, and the evidence does not indicate that a material worsening occurring during the interval. Rather, the Veteran had similar pain and functional limitations. Hence, the Board finds that his back disability warrants a 40 percent rating throughout the appeal period. While an increased rating to 40 percent is appropriate, the Board determines a rating in excess of 40 percent is not supported during the appeal period. The VA examinations of record dated May 2018 and November 2018 showed pain and limited range of motion; however, they do not establish that the Veteran has ankylosis. Without a showing of ankylosis, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted. The Board notes the most recent November 2018 VA examination may not contain all the necessary findings to evaluate the Veteran’s loss of function, including during flare-ups. However, a rating in excess of 40 percent cannot be assigned for the back disability regardless of these findings absent ankylosis or episodes of intervertebral disc syndrome requiring bedrest of at least 6 weeks within a 12 months duration. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). In sum, the Board finds from August 29, 2017 to November 4, 2018, an increased initial rating to 40 percent for the Veteran’s back disability is warranted when affording all reasonable doubt in his favor. However, the preponderance of the evidence is against a further increase in excess of 40 percent during the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for chronic fatigue syndrome. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pertinent to a service connection claim, such a determination requires a finding of a current disability as one of the elements. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). Analysis The Veteran is seeking service connection for chronic fatigue syndrome as caused by his exposure to burn pits during service. The Veteran’s service treatment records do not contain any treatment or symptoms related to chronic fatigue syndrome. The medical evidence of record, including the Veteran’s VA treatment records, shows no diagnosis of chronic fatigue syndrome. Following his August 2017 claim, the Veteran was afforded a May 2018 VA examination. The examiner indicated the Veteran is not diagnosed and has never been diagnosed with chronic fatigue syndrome. Additionally, the Veteran reported that he does not have a diagnosis of chronic fatigue syndrome. The Veteran stated he claimed chronic fatigue syndrome because of weakness since 2016, after undergoing six intestinal surgeries, and reported he does not have the strength that he previously had. The Veteran has received treatment throughout the appeal period through the VA Medical Center. In VA treatment records dated July 2018 and October 2018, the Veteran reported frequent fatigue. However, in a May 2019 VA record the examination was negative for fatigue and in February 2020, there was no fatigue reported. The Board finds service connection for chronic fatigue syndrome is denied. As noted above, a claim for service connection requires a current disability. As to the current disability element of the claim, the most persuasive evidence consists of the VA examination report from May 2018 in which the examiner found no diagnosis for chronic fatigue syndrome. Further, the Veteran himself reported during the May 2018 examination that he does not have such a diagnosis. Therefore, the evidence does not show the existence of chronic fatigue syndrome at any point during the course of the appeal. See Brammer, 3 Vet. App. at 225. Although he had complaints of fatigue, these were related to a nonservice-connected disability. Accordingly, the preponderance of the evidence is against the claim of service connection for chronic fatigue syndrome. The current disability element of the claim is not established. Thus, the benefit-of-the-doubt doctrine is not applicable and service connection for chronic fatigue syndrome is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. COREY BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.