Citation Nr: 22017355 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 13-24 433 DATE: March 24, 2022 ORDER Entitlement to a disability rating of 30 percent for irritable bowel syndrome (IBS) from August 18, 2010 to September 15, 2020 is granted. Entitlement to a disability rating in excess of 30 percent for IBS is denied. Entitlement to service connection for fatigue, to include chronic fatigue syndrome, is denied. FINDINGS OF FACT 1. For the entire rating period, the Veteran's IBS has been manifested by severe alternating episodes of diarrhea and constipation with more or less constant abdominal distress. 2. The Veteran does not have a current disability manifested by fatigue separate and distinct from the fatigue that is contemplated by the criteria for the evaluation she is receiving for her service-connected fibromyalgia. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent for IBS from August 18, 2010 to September 15, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319. 2. The criteria for entitlement to a disability rating in excess of 30 percent for IBS is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319. 3. The criteria for entitlement to service connection for fatigue, to include chronic fatigue syndrome, not have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1990 to May 1991, including service in the Southwest Asia theater of operations from January 1991 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A transcript of her testimony is of record. These matters were previously before the Board in January 2021, when they were remanded for additional development. Additional evidence was received after the last supplemental statement of the case was issued. However, the Veteran waived RO consideration of that evidence in November 2021 correspondence. INCREASED RATING 1. Entitlement to a disability rating in excess of 10 percent for IBS prior to September 15, 2020 2. Entitlement to a disability rating in excess of 30 percent for IBS from September 15, 2020 The Veteran contends that her IBS has continued to worsen over the years because she experiences severe abdominal pain, started taking medication, she has had to purchase adult diapers for when she goes out in public due to unexpected diarrhea episodes that have ruined her clothing, and she experiences and takes medication for constipation. See Hearing Transcript and September 2020 Statement in Support of Claim. The Veteran is currently assigned a 10 percent evaluation for IBS from August 18, 2010 to September 15, 2020 and 30 percent thereafter, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. Under that Code, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Id. The Veteran contends that her IBS is severely disabling and results in constant abdominal distress and diarrhea and constipation. See January 2013 Statement; January 2017 Hearing Testimony. For the reasons described below, the Board concludes that an initial rating of 30 for IBS is warranted. Turning to the medical evidence, the Veteran was afforded VA examinations in June 2011, November 2017, and August 2021. It was noted that the Veteran experienced constipation, problems with her bowels three or four times a week with lots of gas daily. Additionally, the Veteran experienced constipation with abdominal discomfort with frequent episodes of abdominal distress. Additionally, VA treatment records contain multiple complaints of diarrhea and constipation. See VA Treatment Records. Affording the Veteran the benefit of the doubt, the Board concludes that for the entire period of the claim, a rating of 30 percent, and no higher, is warranted for IBS. A 30 percent rating is assigned when the disability is severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Here, the Veteran has reported daily abdominal distress with a constant cycle of diarrhea and constipation. This is the maximum evaluation assignable under Diagnostic Code 7319. The Veteran's representative has argued that the Veteran is entitled to a 60 percent disability rating for her IBS, but cited to rating criteria for hiatal hernia. The Veteran is not service connected for hiatal hernia and service connection for gastroesophageal reflux disease was specifically denied in a 1997 rating decision. Thus, those criteria are not relevant to rating her IBS. Rather, irritable colon syndrome and IBS are synonymous, and Diagnostic Code 7319 is directly on point. (Irritable bowel syndrome is "a functional commonly psychosomatic disorder of the colon characterized by the secretion and passage of large amounts of mucus, by constipation alternating with diarrhea, and by cramping abdominal pain". WEBSTER'S MEDICAL DESK DICTIONARY 353 (1986). Moreover, the Veteran has not been diagnosed with ulcerative colitis, nor does the evidence reflect impairment of rectal or anal sphincter with extensive fecal leakage and fairly frequent involuntary bowel movements, rectal and anal stricture, or rectal prolapse. Thus, the rating criteria contained in Diagnostic Codes 7332 to 7334 are not applicable. See 38 C.F.R. § 4.114. In sum, the evidence supports a 30 percent rating, but is persuasively against a rating higher than that at any time during the period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 3. Entitlement to service connection for fatigue Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (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. 38 C.F.R. § 3.310. The Veteran contends that she has fatigue, or chronic fatigue syndrome (CFS), and that fatigue is the result of her active duty military service, or alternatively proximately due to her service connected fibromyalgia. See October 2020 Appellate Brief. Whether service connection is claimed on direct or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1110 requires the existence of a present disability for VA compensation purposes). The presence of a disability at the time of filing of a claim, during its pendency, or approximate thereto, warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). The evidence of record contains conflicting opinions on whether the Veteran has CFS. A diagnosis of CFS for VA purposes 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 six months; (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) non-exudative 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. Consideration under 38 C.F.R. § 3.317 remains warranted in cases where CFS is diagnosed, as it is an unexplained multi- symptom illness defined by a cluster of signs or symptoms. While the March 2021 VA examiner stated in the March 2021 opinion that the Veteran has chronic fatigue syndrome "and not just 'fatigue,'" the VA examiner later clarified in an April 2021 addendum that the Veteran does not meet the criteria for CFS, "according to CFS guidelines." The VA examiner included the CFS guidelines and indicated that the Veteran was negative for the following: acute onset of the condition, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph noted, generalized muscle aches or weakness, and fatigue lasting 24 hours or longer after exercise. The Board finds the April 2021 addendum to be of higher probative value because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the March 2021 VA examiner opined that the Veteran's fatigue is as likely as not caused from her fibromyalgia, psychiatric disability, and snoring. The Veteran is service-connected for fibromyalgia and PTSD. The Board finds that the Veteran does not have a diagnosis of CFS based on VA treatment records and the opinions of the VA examiners. The Veteran is not competent to diagnose the complex medical condition of CFS, so her opinion as to a diagnosis of that disorder has no probative value. She is however competent to report on symptoms such as fatigue. The term disability is a broad one; a diagnosis is not required to meet the current disability requirement and symptoms such as pain can constitute disability if they cause impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, however, the Veteran does not meet the diagnostic criteria for CFS, and her symptom of fatigue has been attributed to her fibromyalgia. The rating criteria for fibromyalgia specifically contemplate fatigue. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. As the Veteran does not have a separate and distinct diagnosed disability manifested by fatigue apart from the fatigue symptoms already contemplated by the evaluation assigned to her service-connected fibromyalgia, entitlement to service connection for fatigue is not warranted. As the weight of the competent and probative evidence is against the claim, service connection for fatigue, to include CFS, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.