Citation Nr: 22014906 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-36 206 DATE: March 15, 2022 ORDER 1. New and material evidence has been received, the service connection claim for chronic fatigue syndrome (CFS) is reopened. 2. Service connection for a disability manifested by fatigue, as secondary to service-connected headaches and low back strain, is granted. 3. A compensable rating for hypertension (HTN) is denied. FINDINGS OF FACT 1. The Veteran has a disability manifested by fatigue that is caused by his service-connected headaches and low back strain. 2. The Veteran's HTN required continuous use of medication for control but was not manifested by a history of diastolic pressure predominantly 100 or more, a systolic pressure predominantly 160 or more, or a diastolic pressure predominantly 100 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by fatigue, on a secondary basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.88a. 2. The criteria for a compensable disability rating for service-connected HTN have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 2003. The case is on appeal from an October 2016 rating decision. In January 2018, the Board remanded these claims for issuance of a statement of the case (SOC). This was issued in May 2018. After the SOC, the Veteran perfected an appeal in June 2018. In June 2018 and October 2018, the Veteran submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board notes that VA received the Veteran's opt-in form for the Rapid Appeals Modernization Program (RAMP) in September 2019. However, as the Veteran's claims are already before the Board, and the RAMP program ended in February 2019, these claims are no longer eligible for RAMP. In October 2021, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for CFS. By a September 2013 rating decision, a claim of service connection for CFS was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2016. No new evidence or notice of disagreement was received by VA within one year of the issuance of the September 2013 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for CFS is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also June 2018 Veteran Statement in Support of Claim; October 2018 Veteran Statement in Support of Claim; October 2021 Board hearing testimony. Service Connection 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, 1131; 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)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis 2. Service connection for CFS. The Veteran contends that he has CFS due to service in the Southwest (SW) Asia and/or caused by service-connected headaches and hypertensive disorder. In a June 2018 correspondence, the Veteran reported that he served in the Gulf War from October 1990 to June 1991. He also reported that was forced to take a "anti-never gas drug pyridostigmine bromide" or "PB pills." Further, the Veteran reported that after taking PB pills, his energy levels dropped and developed chronic fatigue. Moreover, he reported that the fatigue symptoms have reduced his ability to participate in daily activities to include social events and perform household chores. In an October 2018 correspondence, the Veteran reported that he was exposed to continuous smoke from burning oil fields. At the October 2021 Board hearing, the Veteran reported that he experiences unexplained tiredness after coming for the Gulf War. Also, he reported that with time and age, he experiences fatigue and more unexplained tiredness which has decreased the ability to perform house chores. He further reported environmental exposures to burn pits. Moreover, he reported that he believes he has an undiagnosed illness that has not been diagnosed beyond the reported symptoms. The Veteran reported that he has been informed that his fatigue symptoms may be related to headaches. The Veteran's service personnel records (SPRs) show that he was an infantryman and received the SW Asia service medal. His service treatment records (STRs) do not show reports of or treatment for fatigue. The February 2003 retirement examination show no reports or treatment of fatigue and marked "no" for fatigability. In August 2013, the Veteran was afforded a VA examination for CFS. The examining physician reviewed the claims file. The physician opined that the Veteran does not have CFS. However, he found that the Veteran's chronic headaches, back, neck, and knee pain would contribute to the Veteran's fatigue. In April 2018, the Veteran was afforded another VA examination with regard to CFS. The examiner reviewed the claims file. The examiner opined that the Veteran did not meet the criteria for CFS. In this regard, she did not diagnosed with CFS and denied medication, acute onset of CFS, debilitation fatigue, and routine restriction daily activity to less than 50 percent. However, the examiner found that chronic degenerative joint disorder related to joint and back pain, headaches, and sleep disturbance are attributable to the Veteran's fatigue symptoms. Also, the examiner found that the Veteran's symptoms wax and wane and result in periods of incapacitation of at least 2 but less than 4 weeks in the last 12 months. The Veteran's post-service VA treatment records show that in June 2018 the Veteran reported experiencing worsening general joint and muscle pain for several months along with along with increased fatigue and lack of energy. A July 2018 nurse note shows that the Veteran reported experiencing fatigue more than usual during normal activities. A June 2019 mental health consult, the Veteran reported experiencing chronic headaches, migraines, sleep impairment, and fatigue. First, the Board finds that the Veteran does not have the claimed CFS. The competent evidence shows that he does not mee the criteria for that specific condition, including for VA purposes. See 38 C.F.R. § 4.88a. However, the Board finds that the Veteran's fatigue is caused by the service-connected headaches and low back strain. The Board notes that the Veteran is service connection for headaches and low back strain. Two VA examiners found that the Veteran's fatigue is caused by a service-connected disorders. The Veteran has consistently reported experiencing fatigue by reporting his symptoms. The Veteran is competent to report his experienced symptoms of fatigue. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Also, the post-service treatment VA records show that the Veteran reported fatigue in conjunction with either headaches or back pain. The Board takes a broader view of the scope of the claim in light of the above-identified medical documentation, and therefore, the examiners' views on that question does not preclude an award of benefits. The Veteran's reports with regards to his symptoms, the post-service VA treatment records, and the VA examiners' findings of fatigue attributed to headaches and low back pain are probative that the Veteran has a disability manifested by fatigue (even if not CFS) caused by his service-connection disorders. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability manifested by fatigue is secondary to his service connected disabilities. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for a disability manifested by fatigue on a secondary basis. Increased Ratings 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. DC 7101 provides a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Under Note (1), HTN or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.Further, under Note (3), HTN is evaluated separately from hypertensive heart disease and other types of heart disease. 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 3. Compensable rating for HTN. The Veteran contends that he should have a compensable rating for his service-connected HTN. In this regard, he requested a higher rating for this disability in August 2016. The Veteran's relevant post-service VA treatment records include blood pressure readings. A November 2016 nursing note shows a blood pressure of 130/86. A November 2017 nursing note shows a blood pressure of 136/84. Pursuant to this claim, the Veteran was afforded an VA examination in April 2018. The Veteran reported that he was blood pressure prescribed medication that would keep his blood pressure steady, "in the range of 120-130/78-79." The examiner noted that the Veteran was diagnosed with hypertension and that his blood pressure readings have worsened. The examiner also noted that the Veteran takes continuous medication for hypertension. The examiner reported blood pressure readings of 159/94, 167/95, and 161/95, with an average blood pressure reading of 162/95. The examiner marked "no" for a history of a diastolic blood pressure to predominantly 100 or more. She found that the Veteran's HTN does not impact his ability to work. Afterward, the Veteran's post-service VA treatment records showed additional blood pressure readings. A June 2018 treatment record reports blood pressure of 130/84. A December 2018 treatment records showed a blood pressure of 131/83. A June 2019 treatment record reports blood pressure of 128/82. Upon review of the record, the Board finds that a compensable rating for the Veteran's HTN is not warranted. Although the Veteran is on continuous medication to manage his HTN, a 10 percent rating also requires a history of diastolic pressure predominantly 100 or more. Here, out of the multiple blood pressure readings recorded throughout the Veteran's post-service treatment records and VA examination, none reflect diastolic pressure predominantly 100 or more, nor do they demonstrate systolic pressure predominantly 160 or more. The Board particularly notes his April 2018 VA examination where the Veteran reported this medication helps his blood pressure remain around 120 to 130 over 70 to 80. The examiner noted that the Veteran does not have a history of diastolic blood pressure elevation to predominantly 100 or more based on the following readings. In addition, a November 2016 nursing note showed a blood pressure of 130/86, a November 2017 nursing note showed a blood pressure of 136/84, a June 2018 treatment record reports blood pressure of 130/84, a December 2018 treatment records showed a blood pressure of 131/83, and a June 2019 treatment record showed blood pressure of 128/82. While the April 2018 VA examination showed blood pressure readings of 159/94, 167/95, and 161/95, with an average blood pressure reading of 162/95, the evidence shows this instance is not consistent with the Veteran's remaining readings as they do not demonstrate diastolic pressure predominantly 100 or more, nor do they demonstrate systolic pressure predominantly 160 or more. The Board acknowledges that, without continuous medication, the Veteran's blood pressure readings would likely be higher. Nonetheless, the objective blood pressure readings throughout the appeal period do not support a compensable rating as the evidence does not show diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more. This objective evidence is highly persuasive to the Board as to the severity of the Veteran's service-connected hypertension and the appropriate rating for such disability. Furthermore, the ameliorative effects of the Veteran's blood pressure medication are contemplated in the rating criteria. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). Also, the Board acknowledges the Veteran's contention with regard to a nexus between HTN and his service-connected hypertensive disorder. However, as mentioned above, HTN and hypertensive disease are evaluated separately even though he is service-connected for hypertensive heart disease associated with hypertension. Accordingly, the Board finds that the persuasive evidence is against the claim for a compensable rating for HTN; and therefore, a compensable rating for HTN is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.