Citation Nr: 21023116 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-43 509 DATE: April 20, 2021 ORDER The claim of entitlement to an initial compensable disability rating for service-connected alopecia areata (hair loss) is denied. The claim of entitlement to a separate disability rating for dry scalp is denied. The claim of entitlement to an initial compensable disability rating for chronic fatigue syndrome (CFS) with headaches is denied. REMANDED Entitlement to a separate disability rating for headaches is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected alopecia areata (now diagnosed as androgenic alopecia – male pattern baldness) is manifested by loss of hair on the top of the head with hair on the sides and without loss of body hair. 2. Dry scalp is not demonstrated. 3. CFS is not manifested by periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for alopecia areata have not been met. 38 U.S.C. §§ 1155, 5107 (20212); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Code (DC) 7831 (2020). 2. The criteria for a separate compensable rating for dry scalp have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, DC 7806 (2020) 3. The criteria for an initial compensable rating for CFS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.1000, 4.88b, DC 6354 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to February 1993. These matters come before the Board of Veteran’s Appeals (Board) from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in February 2019. At that time, various claims were recharacterized. Specifically, while the Regional Office (RO) had rated allergic rhinitis, alopecia reata, and CFS with headaches under one DC (6522) for allergic rhinitis, the Board separated the conditions for a thorough and proper analysis. The February 2019 Board decision denied a compensable disability rating for the Veteran’s hair loss and a compensable disability rating for the Veteran’s chronic fatigue with headaches. The Veteran appealed the February 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In February 2020, CAVC granted a Joint Motion for Remand (JMR) and partially vacated the February 2019 Board decision only as to the issues noted above. In September 2020, the claims were remanded for additional evidentiary development, to include contemporaneous examinations. The case has been returned to the Board for further appellate consideration. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2020). While the Veteran’s entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Therefore, the Board will determine whether further staged evaluations are warranted. Initial Considerations By way of history, the Veteran presented a claim of service connection for hair loss and a severe case of flaky skin on his scalp which did not respond to prescribed dandruff shampoo. See Veteran’s Application for Compensation or Pension of April 2013. In March 2014, the Veteran was administered a Gulf War General Medical Examination Disability Benefits Questionnaire (Gulf War DBQ) where the Veteran was noted to suffer from skin diseases, intestinal conditions, headaches, and chronic fatigue syndrome. The examiner also noted that the Veteran reported experiencing hair loss and scalp itching within 6 months of his separation from service with no family history of hair loss. The examiner diagnosed the Veteran with male pattern hair loss with dry scalp however, the examiner did not complete a Skin Diseases Disability Benefits Questionnaire following this Gulf War DBQ. See Gulf War DBQ of March 2014. In April 2014, the RO granted the Veteran service connection for allergic rhinitis and noncompensable alopecia areata (hair loss), chronic fatigue with headaches, and chronic diarrhea (claimed as gulf war syndrome), all globally evaluated as 10 percent disabling effective April 26, 2013. The Veteran disagreed with the disability evaluation initially assigned and has consistently pursued his appeal. In the February 2019 Board decision, the Veteran’s claim for a compensable disability rating for his hair loss was denied. The Veteran appealed that decision to CAVC. CAVC partially vacated the February 2019 Board decision, pursuant to a JMR, finding that the Board decision failed to provide sufficient reasons and bases by not addressing whether the Veteran’s diagnosis of dry scalp warranted a separate compensable rating from the rating assigned to his hair loss. See JMR associated with the claims file in February 2020. As noted above, in September 2020, the claims were remanded for additional evidentiary development, to include contemporaneous examinations. Further details are provided below. 1. Entitlement to an initial compensable disability rating for alopecia areata (hair loss). 2. Entitlement to a separate disability rating for dry scalp. DC 7831 provides a noncompensable rating for loss of hair that is limited to the scalp and face and a maximum schedular 10 percent rating for the loss of all body hair. See 38 C.F.R. § 4.118, DC 7831 (2020). In the Board’s September 2020 remand decision, it was noted that it was not clear from the medical evidence available whether the Veteran’s noted dry scalp was a symptom of his hair loss or whether it was a separate disability. As it was unclear whether the Veteran’s dry scalp was related to his hair loss or whether it was a separate disability, and to correct a predecisional duty to assist error, a remand was necessary to obtain a medical examination regarding the Veteran’s dry scalp condition and a medical opinion that addressed the question of whether the Veteran’s noted dry scalp was related to his hair loss problem or whether it was a different disability. The Board also remanded the claim of entitlement to an initial compensable disability rating for hair loss because it was inextricably intertwined with the issue of an entitlement to a separate disability rating for a dry scalp. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Upon VA video telehealth examination in September 2021, it was noted by the VA examiner that the claim file was reviewed. The Veteran stated that hair loss started about 5 years post military, and it had gradually continued and now extended from the frontal to superior parietal region. He explained that the pruritis had decreased in intensity and frequency as the hair loss continued. He never had any lesions (dry or open) on the scalp. The areas affected were “top of head only, sides maintain intact hair.” Dry scalp was not evident on exam. Rather than the previous diagnosis of alopecia areata, the VA examiner opined that the correct diagnosis was androgenic alopecia (male pattern baldness). Based on the circumstances as to these claims, the currently assigned noncompensable disability rating for loss of hair that is limited to the scalp and face is appropriate. There is no indication of loss of body hair that would warrant a compensable rating pursuant to DC 7831. Moreover, there is no dry or itchy scalp demonstrated. As a result, the criteria for an initial compensable rating for the Veteran’s service-connected hair loss is not warranted, and a separate disability rating is not warranted for a dry scalp. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a (2020). 3. Entitlement to an initial compensable disability rating for CFS. The Veteran asserts that his fatigue disability should have a compensable disability rating. The Board notes that applicable VA regulations specifically define “chronic fatigue syndrome” at 38 C.F.R. § 4.88a in terms of identifying characteristics. A diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity, or pattern that is different from headaches in a pre-morbid state); (viii) migratory joint pains; (ix) neuropsychologic symptoms; (x) sleep disturbance. 38 C.F.R. § 4.88a (2020). Under DC 6354, a 10 percent rating is assigned for CFS which waxes and wanes but results in period of incapacitation of at least one but less than two weeks total duration per year; or for symptoms controlled by continuous medication. A 20 percent disability is assigned under this code for symptoms which are nearly constant and restrict daily activities by less than 25 percent of pre-illness level; or, which wax and wane, resulting in incapacitation of at least two but less than four weeks total duration per year. Under DC 6354, a 10 percent rating is assigned for CFS which waxes and wanes but results in period of incapacitation of at least one but less than two weeks total duration per year; or for symptoms controlled by continuous medication. A 20 percent disability is assigned under this code for symptoms which are nearly constant and restrict daily activities by less than 25 percent of pre-illness level; or, which wax and wane, resulting in incapacitation of at least two but less than four weeks total duration per year. A 40 percent is assigned for symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which 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 assigned for symptoms, which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. See 38 C.F.R. § 4.88b (2020). A Note to DC 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, DC 6354, Note. Additionally, the Board notes the Veteran is also service connected for fibromyalgia rated under DC 5025. Fibromyalgia refers to widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel syndrome, depression, anxiety, or Raynaud’s like symptoms. Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, DC 5025. DC 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms, is to be rated 10 percent disabling if the symptoms require continuous medication for control. A 20 percent disability rating is assigned if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time. A 40 percent disability rating is assigned if the symptoms are constant or nearly constant and are refractory to therapy. 38 C.F.R. § 4.71a, DC 5025. As both DC 6354 for CFS and DC 5025 for fibromyalgia take into consideration the possibility of headaches, the Board found in September 2020 that a remand was necessary so that a medical opinion could be obtained as to whether the Veteran’s headaches were plainly a symptom of either his service connected CFS or his service connected fibromyalgia or whether his headaches were a separate and distinct disability, unrelated to the Veteran’s service connected CFS and fibromyalgia. Additionally, as noted in the Board’s September 2020 remand, pursuant to Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. However, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14 (2020). As fibromyalgia and CFS could sometimes share some symptomatology, like fatigue and headaches, as well as to correct a predecisional duty to assist error, the Board determined that a medical examination for the Veteran’s CFS and fibromyalgia was necessary so that a VA examiner could note which symptoms corresponded to which disability and opine whether the symptomatology associated with each disability could be differentiated from the other or not. The Board further noted that this medical opinion was necessary so that the Board could make an informed decision on the Veteran’s claim for a disability rating increase regarding his chronic fatigue and to avoid any impermissible pyramiding. Additionally, the Board found that a VA examination for the Veteran’s headaches was necessary; as well as a medical opinion that addressed whether the Veteran’s headaches were a symptom of either his chronic fatigue and/or his fibromyalgia or whether his headaches were a separate and distinct disability unrelated to his already service-connected disabilities. Upon VA video telehealth examination in September 2020, the examiner noted that the claims file was reviewed. After her review, she opined that the Veteran did not meet the criteria for a diagnosis of CFS. There was no debilitating fatigue which reduced daily activity levels to less than 50 percent of pre-illness level. Moreover, the Veteran did not have any findings, signs, and symptoms attributable to CFS, and there was no cognitive impairment attributable to CFS. As for headaches, she did not find such to be attributable to alleged CFS or service-connected fibromyalgia. Instead, she found headaches to be related to service-connected rhinitis. See remand. Based on review of the evidence, lay and medical, the Board finds that a compensable initial rating for CFS is not warranted. As discussed above, there are no current CFS symptoms, and it is the examiner’s opinion that the Veteran currently does not meet the criteria for a diagnosis of CFS. As such, there are no symptoms or functional impairments to be considered in rating the CFS. Thus, a compensable rating for CFS must be denied. For these reasons, the Board finds the preponderance of evidence supports a finding that an initial compensable rating for CFS is not warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a (2020). REASONS FOR REMAND 4. Entitlement to a separate disability rating for headaches is remanded. As noted above, the claim for a separate disability rating for headaches was also remanded by the Board in September 2020. The resulting VA examination report from September 2020 reflects that the Veteran claimed that his headaches coincided with nasal congestion. The cephalgia was not debilitating and was treated successfully with over the counter pain medication. The examiner added that in the available medical evidence, there was no link of headaches to a nexus while on active duty. However, the medical literature did note how associated nasal congestion could lead to cephalgia. It was her medical opinion that it was more likely than not that the Veteran’s current and intermittent cephalgia was related to his service-connected rhinitis. She did not specifically discuss aggravation of the Veteran’s headaches by the service-connected rhinitis. A remand is necessary to obtain an addendum opinion with clarification as to medical questions regarding the Veteran’s headaches. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the September 2020 VA examiner (or a suitable substitute) regarding the etiology of the Veteran’s headaches. The Veteran’s electronic claim folder, including a copy of this remand, must be provided to the examiner. If the examiner determines that additional physical examination is necessary to address these questions, such should be conducted. The September 2020 examiner has opined that cephalgia is associated with service-connected rhinitis. Please provide a statement addressing whether service-connected rhinitis has aggravated the Veteran’s headaches. If aggravation is found, provide the baseline manifestations and any increased manifestations due to the service-connected rhinitis. As the matter is on remand, it is also requested that the examiner specifically provide a statement as to whether the Veteran’s headaches are a distinct and separate disability from the rhinitis or a symptom of that disability. A complete rationale for all opinions reached must be provided.   2. Upon completion of the above, if the issue remains denied, the appeal should be returned t the Board after compliance with appellate procedure. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.