Citation Nr: 0613270	
Decision Date: 05/08/06    Archive Date: 05/17/06

DOCKET NO.  04-00 221A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUES

1.  Entitlement to service connection for chronic fatigue 
syndrome.  

2.  Entitlement to an initial compensable rating for 
sarcoidosis.  



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

W. R. Harryman, Counsel

INTRODUCTION

The veteran served on active duty from July 1985 to April 
1988 and from September 1988 to July 1995.  

This appeal to the Board of Veterans' Appeals (Board) arose 
from an April 2002 decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Washington, DC.  The 
case was later transferred to the jurisdiction of the RO 
in Pittsburgh, Pennsylvania.


FINDINGS OF FACT

1.  The veteran served in the Southwest Asia Theater of 
Operations during the Persian Gulf War.  

2.  The medical evidence does not show the veteran has any 
objective indications of a chronic disorder manifested by 
fatigue.  

3.  The medical evidence does not show the veteran has 
chronic fatigue syndrome.

4.  The veteran's sarcoidosis results in FEV-1 values between 
71 and 80 percent predicted or FEV-1/FVC values between 71 
and 80 percent during service and since his separation from 
service.  The record does not show this condition requires 
constant or periodic steroids or that he has any specific 
pulmonary or extra-pulmonary manifestations of the 
disability.  




CONCLUSIONS OF LAW

1.  Chronic fatigue syndrome was not incurred or aggravated 
in service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 3.317 (2005).  

2.  The criteria are met for an initial 10 percent rating for 
sarcoidosis as of November 28, 2000.  38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.97, 
Codes 6846-6600 (2005).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) 
(codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 
5126 (West 2002)), imposes obligations on VA in terms of its 
duty to notify and assist claimants.

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 
38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II), the United States Court of 
Appeals for Veterans Claims (Court) held that VA must inform 
the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA 
will seek to provide; (3) that the claimant is expected to 
provide; and (4) request that the claimant provide any 
evidence in his possession that pertains to the claim. 



In this case at hand, the RO has had an opportunity to 
consider the claims on appeal in light of the above-noted 
change in the law, and the requirements of the new law and 
regulations have been satisfied.  See Quartuccio, supra 
(addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 
C.F.R. § 3.159).  By virtue of January 2001 and June 2004 RO 
letters to the veteran notifying him of the VCAA, he has been 
advised of the laws and regulations governing the claims on 
appeal and the evidence that he must supply and the evidence 
that VA would attempt to obtain.  Thus, he may be considered 
to have been advised to submit any pertinent evidence in his 
possession.  Records of his private treatment through July 
2001 have been obtained and he was provided two VA 
compensation examinations, including to assess the severity 
of his sarcoidosis.  See Caffrey v. Brown, 6 Vet. App. 377 
(1994).  He has not identified any additional evidence that 
needs to be obtained.  See Conway v. Principi, 353 F. 3d. 
1369 (Fed. Cir. 2004).  So the Board finds that the duty to 
assist has been met.

The Board also has considered the Court's holding in 
Pelegrini II that 38 U.S.C.A. § 5103(a) requires VA to 
provide VCAA before any initial unfavorable agency of 
original jurisdiction decision.  See, too, Mayfield v. 
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other 
grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006) 
(also discussing the timing of the VCAA notice as it relates 
to prejudicial error).  Here, the RO initially considered the 
claim for chronic fatigue syndrome in April 2002, so not 
until after sending the veteran a VCAA letter concerning this 
issue in January 2001.  Thus, there has been no error in the 
timing of the notice that is required for that issue.  The 
more recent June 2004 RO letter was the first notice he was 
provided concerning the initial rating for his sarcoidosis.  
And the record does not reflect the RO subsequently again 
considered this claim.  Nevertheless, since the Board is 
increasing the rating for this condition in this decision, 
the error in the timing of that notice was non-prejudicial 
because the veteran is receiving a higher rating, regardless.



The Board is equally mindful that, during the pendency of 
this appeal, on March 3, 2006, the Court issued another 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include:  1) veteran status; 2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; 4) degree of 
disability; and 5) effective date of the disability.  The 
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  Additionally, 
this notice must include notice that a disability rating and 
an effective date for the award of benefits will be assigned 
if service connection is awarded.

Concerning the veteran's claim for service connection for 
chronic fatigue syndrome, the Board recognizes that he was 
not provided notice of what type of information and evidence 
was needed to substantiate a claim for a higher rating or an 
earlier effective date.  But even so, since, for the reasons 
and bases discussed below, the Board is denying service 
connection, any concerns over the appropriate initial rating 
and/or effective date to be assigned are rendered moot.  So 
it again is nonprejudicial to go ahead and adjudicate this 
claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
Further, regarding the veteran's claim for a higher initial 
rating for sarcoidosis, although he was not provided notice 
of the type of evidence necessary to establish an effective 
date if this benefit were granted, and despite the erroneous 
timing of the notice that was provided, the Board also finds 
no evidence of prejudicial error concerning this issue 
inasmuch as a higher rating is being granted and since this 
rating will be retroactively effective from the date of 
service connection, the earliest possible date allowable.  
Id.  



Analysis

Service connection for chronic fatigue syndrome

Service connection may be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred or aggravated in active military 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  
Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) 
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

VA shall pay compensation in accordance with chapter 11 of 
title 38, United States Code, to a Persian Gulf veteran with 
a qualifying chronic disability that became manifest either 
during active military, naval, or air service in the 
Southwest Asia theater of operations during the Persian Gulf 
War, or to a degree of 10 percent or more not later than 
December 31, 2006.  The term "qualifying chronic 
disability" means a chronic disability resulting from any of 
the following (or any combination of any of the following): 

(1) A medically unexplained chronic multisymptom illness 
(such as chronic fatigue syndrome, fibromyalgia, and 
irritable bowel syndrome) that is defined by a cluster 
of signs or symptoms.   
(2) Any diagnosed illness that the Secretary determines 
warrants a presumption of service-connection.   
(3) An undiagnosed illness in a veteran who exhibits 
objective indications of chronic disability resulting 
from an illness or combination of illnesses manifested 
by one or more signs or symptoms such as those listed 
below, provided that such disability by history, 
physical examination, and laboratory tests cannot be 
attributed to any known clinical diagnosis. 
 
"Objective indications of chronic disability" include both 
"signs," in the medical sense of objective evidence 
perceptible to an examining physician, and other, non-medical 
indicators that are capable of independent verification.  
 
For purposes of this section, disabilities that have existed 
for 6 months or more and disabilities that exhibit 
intermittent episodes of improvement and worsening over a 
6-month period will be considered chronic.  The 6-month 
period of chronicity will be measured from the earliest date 
on which the pertinent evidence establishes that the signs or 
symptoms of the disability first became manifest.  
 
For the purposes of this section, signs or symptoms which may 
be manifestations of undiagnosed illness include, but are not 
limited to:  

(1) Fatigue  
(2) Signs or symptoms involving skin  
(3) Headache  
(4) Muscle pain  
(5) Joint pain  
(6) Neurologic signs or symptoms  
(7) Neuropsychological signs or symptoms  
(8) Signs or symptoms involving the respiratory system 
(upper or lower)  
(9) Sleep disturbances  
(10) Gastrointestinal signs or symptoms  
(11) Cardiovascular signs or symptoms  
(12) Abnormal weight loss  
(13) Menstrual disorders. 
 
Compensation shall not be paid under this section if there is 
affirmative evidence that an undiagnosed illness was not 
incurred during active military, naval, or air service in the 
Southwest Asia theater of operations during the Persian Gulf 
War; or if there is affirmative evidence that an undiagnosed 
illness was caused by a supervening condition or event that 
occurred between the veteran's most recent departure from 
active duty in the Southwest Asia theater of operations 
during the Persian Gulf War and the onset of the illness; or 
if there is affirmative evidence that the illness is the 
result of the veteran's own willful misconduct or the abuse 
of alcohol or drugs.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  

The records reflect that the veteran served in the Southwest 
Asia Theater of Operations during the Persian Gulf War.  But 
his service medical records, including the report of his 
separation examination, are completely unremarkable for any 
complaints or diagnosis suggestive of chronic fatigue.  
Moreover, the post-service private treatment records and the 
reports of VA examinations in July 2001 and August 2003 do 
not refer to any complaints of generalized fatigue, nor do 
they contain a diagnosis of chronic fatigue syndrome.  The VA 
examiners have indicated the veteran develops fatigue on use 
of some of his muscles, but that manifestation already has 
been considered in the ratings assigned for the several 
service-connected disabilities affecting his low back, knees, 
shoulders, hips, and right elbow.  See DeLuca v. Brown, 8 
Vet. App. 202 (1995) (citing 38 C.F.R. §§ 4.40, 4.45 and 
4.59).

Unless the evidence also demonstrates the veteran has chronic 
fatigue as a separate medical entity, either as a diagnosed 
disorder or as due to undiagnosed illness, it would 
constitute impermissible pyramiding to consider the noted 
fatigue only on use in establishing service connection for a 
disability manifested by chronic fatigue.  38 C.F.R. § 4.14 
(2005).  

In any event, the medical evidence does not show the veteran 
has been diagnosed as having chronic fatigue syndrome or that 
he has chronic fatigue as a manifestation of an undiagnosed 
illness.  And in the absence of a current disability, service 
connection is not possible.  See Brammer v. Derwinski, 3 Vet. 
App. 223 (1992).  Further, without objective indications of 
chronic disability resulting from an illness or combination 
of illnesses manifested by chronic fatigue, service 
connection is not warranted under the provisions of 
38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, either.



In determining whether a claimed benefit is warranted, VA 
must determine whether the evidence supports the claim or is 
in relative equipoise (about evenly balanced for and 
against), with the veteran prevailing in either event, or 
whether instead the preponderance of the evidence is against 
the claim, in which case it is denied.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102.  Here, for the reasons and 
bases stated, the preponderance of the evidence is against 
the veteran's claim, so the provisions of § 5107(b) and 
§ 3.102 are not applicable.  

Greater initial rating for sarcoidosis

Disability evaluations are assigned by applying a schedule of 
ratings that represent, as far as can practicably be 
determined, the average impairment of earning capacity.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  These evaluations 
involve consideration of the level of impairment of the 
veteran's ability to engage in ordinary activities, 
to include employment.  38 C.F.R. § 4.10.  Where there is a 
question as to which of two evaluations should 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.  All reasonable doubt is resolved in his 
favor.  38 C.F.R. § 4.3.

Although regulations require that, in evaluating a given 
disability, it be viewed in relation to its whole recorded 
history, 38 C.F.R. §§ 4.1, 4.2, the present level of 
disability is of primary concern.  Francisco v. Brown, 7 Vet. 
App. 55 (1994).  In evaluating the veteran's claim, all 
regulations that are potentially applicable through 
assertions and issues raised in the record have been 
considered, as required by Schafrath v. Derwinski, 1 Vet. 
App. 589 (1991).  

The current appeal arose from the rating assigned following 
the initial grant of service connection for residuals of the 
veteran's sarcoidosis.  In Fenderson v. West, 12 Vet. App. 
119 (1999), the Court noted the distinction between a claim 
for an increased rating for a service-connected disability 
and an appeal from the initial rating assigned for a 
disability upon service connection.  The Board will evaluate 
the level of impairment due to the disability throughout the 
entire period, considering the possibility of staged ratings, 
as provided by the Court in Fenderson.

Sarcoidosis is rated on the basis of either symptoms or 
clinical findings of pulmonary sarcoidosis under Code 6846; 
as chronic bronchitis under the provisions of Code 6600; or 
on the basis of extra-pulmonary involvement under the 
specific body system involved.

Under Code 6846, cor pulmonale, or cardiac involvement with 
congestive heart failure, or progressive pulmonary disease 
with fever, night sweats, and weight loss despite treatment, 
warrants a 100 percent rating.  With pulmonary involvement 
requiring systemic high dose (therapeutic) corticosteroids 
for control, a 60 percent evaluation is assigned.  A 30 
percent rating is appropriate for pulmonary involvement with 
persistent symptoms requiring chronic low dose (maintenance) 
or intermittent corticosteroids.  With chronic hilar 
adenopathy or stable lung infiltrates without symptoms or 
physiologic impairment, a noncompensable evaluation is 
warranted.  

Chronic bronchitis is rated as follows:  For an FEV-1 less 
than 40 percent of predicted value, or the ratio of Forced 
Expiratory Volume in one second to Forced Vital Capacity 
(FEV-1/FVC) less than 40 percent, or Diffusion Capacity of 
the Lung for Carbon Monoxide by the Single Breath Method 
(DLCO (SB)) less than 40 percent predicted, or maximum 
exercise capacity less than 15 ml/kg/min oxygen consumption 
(with cardiac or respiratory limitation), or; cor pulmonale 
(right heart failure), or right ventricular hypertrophy, or 
pulmonary hypertension (shown by Echo or cardiac 
catheterization), or episode(s) of acute respiratory failure, 
or the requirement for outpatient oxygen therapy, a 100 
percent rating is assigned.  A 60 percent evaluation is 
warranted for an FEV-1 of 40 to 55 percent predicted, 
or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40 to 
55 percent predicted, or maximum oxygen consumption of 15 to 
20 ml/kg/min (with cardiorespiratory limit).  For an FEV-1 of 
56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, 
or; DLCO (SB) 56 to 65 percent predicted, a 30 percent rating 
is appropriate.  A 10 percent evaluation is proper for an 
FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 
80 percent, or DLCO (SB) 66 to 80 percent predicted.  Code 
6600.  

The post-service medical evidence does not reflect any 
specific pulmonary complaints or abnormal pulmonary clinical 
findings to enable evaluating the veteran's sarcoidosis under 
the provisions of Code 6846.  Neither does the record 
indicate he has any extra-pulmonary manifestations of the 
disease.  Further, there is no medical evidence this 
condition has required either constant or intermittent 
steroids since his separation from military service, although 
he did take prednisone briefly during service.  

The medical record contains the reports of pulmonary function 
tests (PFTs), both during service and on two occasions since 
service.  The service medical records contain the reports of 
three PFTs between January 1993 and February 1995, reflecting 
decreasing pulmonary function, with the last two reports 
meeting the criteria for a compensable rating under Code 6600 
(FEV-1 values between 71 and 80 percent predicted).  

In July 2001 and August 2003, the RO arranged for two 
examinations of the veteran, to include PFTs, in Germany 
where he resides.  Those reports were translated into 
English.  The July 2001 PFT report notes an FEV-1 of 81 
percent predicted and an FEV-1/FVC of 76 percent.  The latter 
value meets the criteria of Code 6600 for a 10 percent 
rating, although the FEV-1 does not.  The report of the 
August 2003 PFTs notes a "One-second-capacity of 78%," 
which the Board interprets as an FEV-1 of 78 percent 
predicted.  That value also meets the criteria for a 10 
percent rating.  An FVC value was not recorded on the August 
2003 report.  

Because the results of PFTs both during service and since 
meet the criteria for a 10 percent rating under Code 6600, 
this higher rating (but no greater) must be assigned 
effective from the date service connection was established 
for the sarcoidosis, November 28, 2000.  38 U.S.C.A. § 5107; 
38 C.F.R. § 4.10, 4.97, Code 6600.  



In exceptional cases where evaluations provided by the rating 
schedule are found to be inadequate, an extraschedular 
evaluation may be assigned that is commensurate with the 
veteran's average earning capacity impairment due to the 
service-connected disorder.  38 C.F.R. § 3.321(b)(1).  Here, 
though, the Board believes the regular schedular standards 
adequately describe and provide for the veteran's disability 
level.  There is no evidence he has ever been hospitalized 
for treatment of his sarcoidosis since his separation from 
military service - much less on a frequent basis.  Neither 
does the record reflect marked interference with his 
employment, meaning above and beyond that contemplated by his 
now 10 percent schedular rating.  He has submitted no 
evidence of excessive time off from work due to the 
disability or of concessions made by his employer because of 
it.  There simply is no evidence of any unusual or 
exceptional circumstances that would take his case outside 
the norm so as to warrant referral to VA's Compensation and 
Pension Service for consideration of an extraschedular 
rating.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 287 
(2000); VAOPGCPREC 6-96.  


ORDER

Service connection for chronic fatigue syndrome is denied.  

A higher 10 percent rating is granted for sarcoidosis, 
effective from November 28, 2000, subject to the laws and 
regulations governing the payment of VA compensation.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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