Citation Nr: 21032779 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-00 866 DATE: May 27, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome is denied. The reduction in the rating assigned to the Veteran's bilateral palmar and plantar keratoderma from 60 percent to zero percent was improper and the 60 percent rating is reinstated, effective March 1, 2017. Entitlement to a disability rating higher than 60 percent for the Veteran's bilateral palmar and plantar keratoderma is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of chronic fatigue syndrome as defined by the applicable VA regulation. 2. The agency of original jurisdiction (AOJ) reduced the rating assigned to bilateral palmar and plantar keratoderma without first obtaining an adequate examination report. 3. Given the Board's restoration of the previously assigned rating for his service-connected skin disorder, the Veteran has been assigned the highest authorized rating for his service-connected palmar and plantar keratoderma. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.88a. 2. The reduction in the disability rating assigned to the Veteran's bilateral palmar and plantar keratoderma from 60 percent to zero percent was improper. 38 U.S.C. §§ 1155, 1159; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10. 3. The criteria for a disability rating higher than 60 percent for bilateral palmar and plantar keratoderma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7824. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to August 1995. This case comes to the Board from rating decisions issued by the Agency of Original Jurisdiction (AOJ) in December 2014 and October 2016. The first decision denied service-connected compensation for chronic fatigue syndrome. The second reduced the 60 percent rating assigned to his service-connected skin disability of the hands and feet from 60 percent disabling to zero percent disabling, effective January 1, 2017. In October 2017, the AOJ issued a new decision increasing the applicable rating to 30 percent, effective June 13, 2017, and changing the effective date of the previously imposed rating reduction from January 1, 2017 to March 1, 2017. Although this decision was favorable to the Veteran, it did not fully resolve his notice of disagreement. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the propriety of the rating reduction remains on appeal. In November 2020, the Veteran testified before the undersigned at a virtual hearing. Although technical difficulties temporarily interrupted the hearing, a complete transcript is available in the form of two documents both of which are part of his electronic claims file. Service Connection for Chronic Fatigue Syndrome Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 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 the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a. To help decide the chronic fatigue claim, the AOJ arranged for an examination in December 2014. According to the examiner's report, the Veteran did not satisfy the criteria for a diagnosis of chronic fatigue syndrome. The "remarks" section of the report attributed the Veteran's experience of fatigue to sleep apnea and obesity. The Veteran's fatigue, the examiner explained, "does not restrict his daily activities to his pre-illness level. He is currently working 40 hours a week as an engineering tech. . . ." The examiner provided an opinion, further explaining why, in his view, a diagnosis of chronic fatigue syndrome would be inappropriate in the Veteran's case. Consistent with the applicable regulation, the examiner described chronic fatigue syndrome as a diagnosis of exclusion. The examiner then mentioned recent progress notes from the Veteran's primary care provider and a pulmonary consultant indicating that sleep apnea explained the Veteran's symptoms of fatigue. There was another VA chronic fatigue examination in October 2016. According to her report, the examining physician reached conclusions similar to those of the December 2014 examiner. In addition to sleep apnea (for which service connection was granted with a 50 percent disability rating) and obesity/ deconditioning, the October 2016 examiner indicated that the Veteran's depression and anxiety could also explain his fatigue. At an informal conference with a decision review officer, the Veteran contested the suggestion that his service-connected sleep apnea could explain his fatigue. According ot the Veteran, his fatigue continued even after he started using a constant airway pressure (CPAP) machine to control his sleep apnea. In response to these statements, the AOJ arranged another chronic fatigue examination in March 2018. Like the earlier reports, the March 2018 examination questionnaire indicates that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. The examiner also provided a new opinion responding to the Veteran's statement. In the opinion, the examiner provided information based on the interview with the Veteran i.e., that he was "compliant with use of CPAP and feels refreshed when he wakes up. States the fatigue is a separate issue in spite of the use of CPAP." According to the examiner, the cause of the Veteran's fatigue was "multifactorial and cannot be attributed to sleep apnea alone when there are several other factors that can contribute to his complaint of being tired and wanting to nap." According to the examiner, the Veteran's depression "can cause fatigue, deconditioning can do the same, fluctuant blood sugar and insulin levels can lead to a feeling of being tired, to which [over-the-counter medications] which [the Veteran] is on such as [medicine] for energy which he consumes, can also contribute." The examiner wrote that the Veteran could expect improvement in his fatigue symptoms with weight loss and exercise. During the November 2020 hearing, the Veteran and his representative relied on the favorable of opinion of Dr. G.G., a physician in private practice. The record includes a letter, dated December 2014, from Dr. G.G., which reads, "[the Veteran] was diagnosed with chronic fatigue syndrome and he has been seen for this on a regular basis." In February 2015, Dr. G.G. wrote a slightly more detailed letter on the same topic: "My patient [the Veteran] has medically unexplained chronic multi-symptom illness, identical to those suffering from Gulf War Illness. It is 50% more than likely, than not, his illness [is] a direct result from his military service, with Chronic Fatigue Syndrome being the worst. His examination and blood work have excluded all other clinical conditions which may produce similar symptoms." The Board has reviewed the progress notes of the Veteran's treatment by Dr. G.G. These notes report frequent complaints of fatigue. But they describe the likely causes of the Veteran's fatigue as "multifactorial." A note from November 2014 indicates that, consistent with his statements, "even on CPAP, he is still tired." But in May 2015, Dr. G.G. reported that, "CPAP makes a noise and he feels that the tubing has a leak. Since this started, fatigue has been worse. Still with fatigue." Having reviewed the record, the Board finds that it is less likely than not that the Veteran has a diagnosis of chronic fatigue syndrome for the purposes of 38 C.F.R. § 4.88a. The letters and medical records from Dr. G.G. clearly demonstrate that the Veteran experiences symptoms of chronic fatigue. But her letters fail to explain how she excluded obesity and psychiatric symptoms as possible causes of the Veteran's fatigue. The February 2015 letter mentions blood tests, but it is difficult to imagine how they could exclude depression and anxiety as possible causes. The same letter indicates that that sleep apnea may not explain all of the Veteran's fatigue symptoms. But there are at least two problems with this suggestion. First, Dr. G.G.'s subsequent May 2015 progress note, by indicating that the Veteran's fatigue worsened after a malfunction was detected in the operation of the Veteran's CPAP machine, implicitly suggests that at least some of his fatigue symptoms are the result of his service-connected sleep apnea. Secondly, 38 C.F.R. § 4.88a defines chronic fatigue syndrome as a diagnosis of exclusion, satisfied only when "all other clinical conditions that may produce similar symptoms" have been eliminated as possible explanations. The VA medical opinions and Dr. G.G.'s own progress notes describe the cause of the Veteran's chronic fatigue symptoms as "multifactorial" and, based on the treatment records and the opinions of the VA examiners, the most likely explanation is that obesity, service-connected sleep apnea, and the Veteran's non-service-connected psychiatric symptoms all contribute to his feelings of chronic fatigue. This conclusion is supported by the August 2015 report of a VA clinical psychologist, who identified chronic sleep impairment as a symptom of the Veteran's generalized anxiety disorder and unspecified personality disorder. In his written statements, the Veteran suggests that, due to his status as a Persian Gulf Veteran for the purposes of 38 C.F.R. § 3.317, his chronic fatigue claim must be granted on a presumptive basis because "you don't have to prove a connection" between the claimed disability and service. The Veteran is correct that, for certain qualifying chronic disabilities, including chronic fatigue syndrome, 38 C.F.R. § 3.317 authorizes presumptive service connection that is, proof of the claimed disability and proof of service in the Persian Gulf at the relevant time relieve the claimant of the usual need to prove the existence of a causal relationship between the claimed disability and military service. But 38 C.F.R. § 4.88a, a separate regulation, defines chronic fatigue syndrome specifically. That regulation imposes the additional requirement that a diagnosis of chronic fatigue syndrome for the purpose of VA compensation must be based on evidence that other clinical conditions which may be associated with similar symptoms have been excluded as potential causes of the Veteran's claimed fatigue symptoms. As the Board has explained, the evidence fails to exclude psychiatric disorders, sleep apnea, and obesity as potential causes of his fatigue symptoms. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the preponderance of the evidence is against a finding that the Veteran has chronic fatigue syndrome as defined by 38 C.F.R. § 4.88a, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. Rating Reduction Rating reductions are permissible under certain circumstances. When the ratings agency contemplates a reduction of compensation payments, it must first prepare a proposed reduction, setting out all the material facts and reasons for the reduction. See 38 C.F.R. § 3.105(e). The period between the effective date of the Veteran's 60 percent disability rating (February 5, 2012) and the effective date of the AOJ's reduction of that rating (March 1, 2017) is more than five years, which means that the provisions of 38 C.F.R. § 3.344(a) and (b) apply to this case. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). The reduction must also satisfy the procedural requirements of 38 C.F.R. § 3.105(e) and the substantive requirements of 38 C.F.R. § 3.344(c). In August 2013, the AOJ granted service connection for bilateral palmar and plantar keratoderma, with an initial 60 percent rating under former 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813, effective February 2, 2012. The decision indicates that this rating was assigned because of the need for "near-constant systemic therapy" during the past 12 months. During the pendency of this claim, the applicable rating criteria were amended and new rating criteria for diseases of the skin became effective on August 13, 2018. See 83 Fed. Reg. 38,663 (August 7, 2018) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). The version of 38 C.F.R. § 4.118, which took effect in August 13, 2018, defines "systemic therapy" as treatment administered orally, via injection, suppository, or intranasally and defines topical therapy as treatment administered through the skin. When the AOJ reduced the Veteran's disability rating, the distinction between systemic and topical therapy was less clear. See Warren v. McDonald, 28 Vet. App. 194 (2016); Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In Johnson, the Court suggested that a topical corticosteroid could potentially be administered on a large enough scale to affect the body as a whole, thus meeting the definition of systemic therapy. Id. at 1354-56. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that, "the 'factual circumstances Johnson discussed by which a topical treatment may become a systemic therapy under DC 7806 are not limited to situations involving large scale topical application." Id. at 291. The Court's opinion in Burton, interpreting Johnson, explained that, "the Board must decide how the topical treatment works not by its contact with the affected location of the condition of the body, but instead in some other way that affects the body more broadly. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream." Id. at 292. According to the Court, the issue of how a topical treatment works was a factual question which may, but not necessarily, require a medical opinion for its resolution. Id. Pursuant to 38 C.F.R. § 3.105(e), the AOJ prepared a proposed reduction in the rating assigned for the Veteran's palmar and plantar keratoderma in April 2016, indicating that, "You are not taking an immunosuppressive drug any longer. The examiner reported your prescription has expired." In an explanatory letter, also dated April 2016, the AOJ wrote that, "We have reviewed medical records concerning your service-connected conditions and noted some improvement in your Eczema." These statements apparently refer to a February 2016 skin diseases examination questionnaire, prepared by a VA nurse practitioner. According to the questionnaire's medical history section, the Veteran "had a prescription to use Urea cream twice a day to his feet, but the [prescription] expired in August 2015. The foot skin is thickened now. The Veteran says that it cracks and bleeds without the urea cream." The medical history further indicates that the Veteran "worked in a technology company in New York until October 2015 when he and his wife moved here due to his in-laws' poor health. . . . He has not yet obtained a [primary health provider]; he was approved for the Choice program in December 2015." On section 3 of the questionnaire ("treatment"), the examiner indicated "yes" in response to the question "Has the veteran been treated with oral or topical medications in the past 12 months for any skin condition?" On part 9 of the questionnaire, the examiner indicated "no" when asked if the Veteran's skin condition affected his ability to work. To explain this statement, the examiner acknowledged his statement that, "his feet hurt when he has to walk on the thickened skin. He has had exams when his feet have been completely clear of the keratinization, so he could get back on his medication for an improvement in the condition. Until November 2015 he worked at a desk job at a technology company and he can continue to do that type of sedentary work where there is no pressure on his feet from his excessive weight." The Veteran responded to the reduction proposal with a letter denying any improvement in the condition of his skin disorder of the feet. He wrote that, "This condition has caused me to take time off from work and to finally lose my regular employment. I have been unemployed for almost 6 months now. This is the second time I lost a job because of my foot issues. My feet have been in this condition for at least 6+ years. They are thick, scaly, cracking, painful and bleeding, hindering me from walking long distances or from standing long periods. I'm in constant pain because of them." In January 2018, the Veteran's treating dermatologist wrote a letter describing the Veteran's skin condition as "severe", indicating that the disorder "flares up more than 4 times a year and he is in fact constantly in a flared-up state as we have not been able to get his psoriasis under control. His psoriasis on the feet . . . affects his ability to walk and bare [sic] weight." During the hearing, the Veteran said that, although his prescription for a topical steroid had expired at the time of the rating reduction, he still continued to "sparingly" use previously obtained supplies of that medication. There are at least two significant problems with the rating reduction in this case. According to 38 C.F.R. § 3.44(a), "Ratings on account of diseases subject to temporary or episodic improvement, e.g., . . . many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated." The letter from the dermatologist indicates that the Veteran's service-connected disease was subject to temporary flare-ups and improvements. The February 2016 report merely suggests that the prescription used to treat his skin disorder had expired when he moved for reasons unrelated to his skin condition ("due to his in-laws' poor health") and, at the time of the examination, he was still in the process of finding a new primary health care provider near his new residence ("He has not yet obtained a [primary health provider]"). This interruption in the supply of the relevant medication is not necessarily the same as evidence of the "sustained improvement" required by the regulation. Before implementing a rating reduction, the AOJ must also determine that an improvement in the service-connected disability has actually occurred and that such improvement reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. There is evidence both before and after the proposed reduction that pain on the skin of the Veteran's feet made it difficult to perform work in which he was constantly on his feet. The February 2016 examiner's suggestion that he could potentially perform sedentary work does not prove that there was an improvement in his ability to function under the ordinary conditions of life and work. Finally, any reduction must be based on a thorough and adequate examination. See Brown, 5 Vet. App. at 420-21. Because the pre-amendment version of the rating criteria apply to this case and, because of the way the way the Court interpreted the pre-amendment rating criteria for diseases of the skin in Burton, an adequate examination report in this case would provide enough information to decide whether the cream used by the Veteran operates "in some other way that affects the body more broadly. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream." Id. at 292. Because the February 2016 report did not attempt to answer this question, the report is inadequate to support a rating reduction. Under these circumstances, the reduction in the disability rating for the Veteran's skin condition of the feet was not proper and the reduction from 60 percent to zero percent (later modified to 30 percent) is void ab initio. See Kitchens v. Brown, 7 Vet. App. 320 (1995). Thus, the Board will restore the 60 percent evaluation, effective March 1, 2017. Rating Higher than 60 Percent for Skin Disorder The evidence is against a finding that the Veteran is eligible for a rating higher than 60 percent for his service-connected skin disorder at any time during the relevant appeal period. This is because the 60 percent rating which the Board has restored is the highest schedular rating under either the pre- or post-amendment versions of the rating criteria for disorders of the skin. See 83 Fed. Reg. 38,663 (August 7, 2018). Under both versions of the regulation, 60 percent is the highest rating authorized by DC 7813. Because the medical evidence indicates a diagnosis of plantar and palmar keratoderma, the criteria in former 7824 ("Diseases of keratinization (including ichthyoses, Darler's disease, and palmoplantar keratoderma") potentially apply to the Veteran's service-connected disability. But, as in the case of the post-amendment version of the General Rating Formula for the Skin, 60 percent is the highest rating authorized by former DC 7824. To determine whether the Veteran is entitled to an extraschedular rating, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. As noted, the Veteran's initial response to the proposed rating reduction was a letter suggesting that his skin disorder caused him to "finally lose my regular employment." The AOJ denied a TDIU rating in April 2016, which the Veteran did not appeal. But his statement indicates one of the factors ("marked interference with employment") which can, in some cases, justify the assignment of an extraschedular rating. However, the February 2016 examination report suggests that the Veteran's skin disorder was not the only reason for his being temporarily out of work. The need to move to be closer to his wife's parents due to a deterioration in their health was also a reason. By the time of the February 2018 skin diseases examination, the Veteran was once again "employed at Intel" and, according to the examiner, at that time his skin disorder was not causing him problems at work. At the time of the virtual hearing, more than two years later, the Veteran's representative stating that he was still working in the same capacity. Under these circumstances, the evidence weighs against a finding that, during the relevant period, the service-connected disability has caused marked interference with employment. The second requirement of the Thun test has not been satisfied and, therefore, referral for extraschedular consideration would be inappropriate. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for an increased rating. See 38 U.S.C. § 5107(a); Gilbert, 1 Vet. App. 49, 54 (1990). There is no evidence that his service-connected skin disorder has met the criteria for a rating higher than 60 percent. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.