Citation Nr: 21041531 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-04 287 DATE: July 9, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had CFS at any time during or approximate to the pendency of the claim. The Veteran does not have a diagnosis of CFS for VA purposes. Any fatigue symptoms are attributable to a sleep disorder, an acquired psychiatric disorder, and a lumbar spine disorder. 2. The Veteran's PTSD is manifested throughout the appeal period by mild to no more than moderate symptomatology, including anxiety, irritability, sleep disturbance, mild memory loss, resulting occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue syndrome (CFS) have not been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 2. The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1991 to June 1995. The Board previously remanded this case for additional development in April 2019. The matter has now returned to the Board for appellate review. 1. Entitlement to service connection for chronic fatigue syndrome Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran is currently service connected for PTSD, to include symptoms of fatigue, at 30 percent disabling. Moreover, the Veteran is currently service-connected for sleep apnea at 50 percent disabling and narcolepsy at 70 percent disabling. He contends that he is entitled to a separate rating for CFS. A separate chronic fatigue syndrome has not been clinically established. Service treatment records reveal no complaints, diagnosis, or treatment for CFS in-service. At an examination prior to separation, the Veteran's did not report any symptoms of fatigue. In November 2019, the Veteran was afforded a VA examination in connection with his claim. The examiner noted that the Veteran did not have a current diagnosis of CFS. However, the examiner noted the following symptoms: debilitating fatigue, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pain, neuropsychologic symptoms, and sleep disturbances. However, the examiner determined that these symptoms were more likely related to the Veteran's diagnosed sleep conditions, ulnar nerve, and back radicular disorders, as opposed to CFS. Although the Veteran mentioned memory problems, the examiner found that these were also linked to sleep apnea and the diagnosis of depression. Further, the examiner found that there was no current existing diagnosis found the medical records; rather, the examiner found that the symptoms of CFS have only been described as such by the Veteran. Accordingly, the examiner found that the Veteran did not meet diagnostic criteria for CFS. In light of the evidence as discussed above, the Board finds that service connection for CFS is not warranted. Specifically, the Veteran does not have a current diagnosis of CFS for VA purposes. Rather, as the November 2019 VA examiner found that the Veteran's reported symptoms of fatigue were residual symptoms of his service-connected sleep apnea, narcolepsy, and depression. Therefore, the Board finds that while the Veteran does not have a current diagnosis of CFS for which a right to VA compensation may be established, his symptoms of fatigue have been adequately contemplated by his current-service connect sleep disorder evaluations. As a present diagnosis for CFS has not been established and a clinical pathology relating the Veteran's reported CFS due to his time in-service has not been established, the Board finds there is no clinical evidence to support the Veteran's contentions. Absent evidence of a current disability, this claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, service connection for CFS must be denied. The Board acknowledges that although the Veteran believes he has a current diagnosis of CFS, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). As there is no objective medical evidence of a disorder, the Veteran's claim of service connection is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., "staged ratings"). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been assigned an initial evaluation of 30 percent throughout the appeal period pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria pertaining to the Veteran's appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. As noted above, the Veteran's PTSD has been assigned an evaluation of 30 percent throughout the appeal period. After reviewing the evidence of record under the laws and regulations as set forth above, the Board concludes that the preponderance of the evidence weighs against the assignment of an evaluation greater than 30 percent at any point during the appeal period. Turning to the record, the Veteran was afforded a VA examination in October 2010 in connection with his claim. The Veteran reported that he had been married twice and divorced once. He described his current wife as being very supportive. He indicated that he is very sociable and that he enjoys outdoor activities with his wife. The Veteran reported that he attempted suicide on several occasions. However, at the time of the examination, the Veteran denied suicidal thoughts. He further described having a short temper and having had frequent confrontations with others. The Veteran presented timely for the examination with adequate grooming and hygiene. He was sufficiently articulate, polite, appropriately assertive, and overtly cooperative. His thought processes were goal directed with no observed mental confusion, flight of ideas, or flashbacks. The Veteran's eye contact was adequate, and no cognitive deficits were demonstrated. He was alert and oriented in all three spheres. His speech was logical and coherent. There was no evidence of hallucinations, delusions, obsessions, compulsions, or phobias. His memory functioning appeared intact. There was no current suicidal or homicidal ideation. There was subjective evidence of sleep impairments, to include nightmares. In April 2015, another VA examination was conducted. The examiner confirmed diagnoses of PTSD and dysthymic disorder. The Veteran described interpersonal functioning as fluctuating. He indicated that his relationship with his wife was alright. The Veteran stated that he had not had contact with his own children since 2007. The Veteran reported that he obtained an associate's degree and that he was pursuing a bachelor's degree. He further reported that he maintained a 3.71 G.P.A. and that he will graduate magna cum laude as the valedictorian of his class. He described that he struggled considerably with both attention and concentration and that he dealt with anxiety while in classes by sitting the front of the class and learning to focus solely on the professor. The examiner observed that the Veteran arrived promptly for his examination. He was appropriately dressed and adequately groomed. The Veteran was cooperative and attentive throughout the examination. He was pleasant, polite, and candid with the examiner. His mood was reported as fine and his affect was somewhat restricted. He was alert and oriented in 3 spheres. His speech was normal in tone and rate. His thought process and content were coherent and relevant with no flights of ideas or disorganization. There was no evidence of active delusional content and the Veteran denied current hallucinations. The Veteran denied suicidal and homicidal ideation. His remote and working memory were within normal limits and his insight and judgment were adequate. At the time of the examination, the examiner noted that the Veteran's then current estimate of psychosocial impairment were mild. Further, the examiner noted that there was no clinically significant improvement or worsening of psychosocial functioning when compared with the Veteran's 2010 examination. VA treatment records from August 2016 reveal that the Veteran reported a heightened increase of arousal symptoms of anxiety, noting that he also experienced hot flashes in connection with the anxiety. He described being somewhat hypervigilant and sometimes having noticeable involuntary movements. He further described having some nightmares from time to time, but otherwise reported that his PTSD symptoms were mostly in control. The Veteran stated that he had not been communicating very well with his family. Specifically, the Veteran reported becoming more involved in his community as opposed to his family as a method to build structure and purpose in his life. However, the Veteran also reported that he is thriving at work, which gave him a sense of contribution and purpose. He denied suicidal thoughts or ideation or homicidal intent. At the time of the encounter, the provider observed that the Veteran presented casually put together and that he made good eye contact. His speech was relevant and coherent. The Veteran's mood was neutral, and his affect was appropriate to context. There was no psychosis noted and the Veteran's thought process was linear and goal directed. His attention, concentration, memory, and orientation seemed fair. Likewise, the Veteran's insight and judgment were fair. Additional VA treatment records from September 2016 show that the Veteran described having some anxiety and concentration problems. He reported a positive response to recent medication adjustments. He further described his employment as being very rewarding and noted that he had been promoted twice since being hired. Although working long hours, the Veteran stated that this employment has helped to improve his self confidence and self-esteem. He reported that his relationship with his wife was stable and that he was involved in church. At the time of the encounter, the Veteran's long and short-term memory were grossly intact. He presented appropriately dressed and groomed. His speech was normal in tone and intensity. The Veteran's affect was broad and his mood was euthymic. He was oriented in all spheres and his thought processes were appropriate and goal directed. The Veteran denied any current suicidal or homicidal ideation, plan, and intent. Pursuant to the Board's April 2019 remand, another VA examination was conducted in October 2019. At the time of the examination, the Veteran reported that he had been married almost 11 years. He described a loving and supportive relationship with his spouse. He indicated that he had been estranged from his four biological children since 2007. The Veteran reported that in 2015 he completed a bachelor's degree and that he graduated as the valedictorian. He further stated that he was currently employed as an inventory management specialist for DLA for the past 4 years. He reported receiving five promotions since he started and that he had turned down a higher promotion multiple times. He reported that he had two master's certifications in supply chain and logistics through the Defense Acquisition University. He reported symptoms of anxiety, trouble falling and staying asleep, hypervigilance, panic attacks, and depression. He also reported family stressors, financial stressors, and medical stressors. He denied suicidal or homicidal ideation. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment. The examiner opined that the Veteran's PTSD has had little, if any, impact on his education and career. Specifically, the Veteran completed a bachelor's program, obtained two masters certifications, and has turned down promotions. However, the examiner noted that the Veteran reported personal stressors that were likely impacting his mood. Ultimately, in considering the evidence discussed above, as well as all other evidence of record, the Board finds that the evidence does not support the assignment of an initial evaluation in excess of 30 percent for PTSD at any point during the appeal period. The Veteran did not report difficulty in occupational or social functioning sufficient to more closely approximate a higher evaluation, and at no time does the objective evidence of record find the Veteran suffered from impaired abstract thinking, speech, judgment, insight or ability to understand complex commands. In fact, the Veteran consistently reported that he performed very well academically and was continuing to seek higher education. Moreover, the Veteran is also consistently noted to have been performing very well in his occupation, to include receiving offers of multiple promotions. Although the Veteran may have experienced some symptoms congruent with a higher evaluation, the Board finds the Veteran's symptomatology most closely approximates that contemplated by a 30 percent evaluation throughout the appeal. Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected PTSD varied to such an extent that a rating greater or less than the 30 percent rating currently assigned would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 30 percent disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as anxiety, anger, flashbacks, disturbing memories, panic attacks, hypervigilance, and depressed mood. Jandreau, 492 F.3d at 1372. The statements from the Veteran are competent evidence to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). The Veteran is also credible in his belief that he is entitled to an evaluation in excess of 30 percent. However, the more probative evidence of record does not indicate that the assignment of an evaluation in excess of 30 percent is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating psychiatric disorders. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any point during the Veteran's appeal. Therefore, an initial evaluation in excess of 30 percent for PTSD is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Associate 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.