MIGRAINE

V. CHIAPPETTA · 2024 · Case ID: 24026659

GRANTED

Summary

The Veteran, who served in the United States Navy from November 1994 to November 1999, appeals the denial of increased ratings for residuals of mononucleosis, specifically headaches and chronic sleep disturbances, and entitlement to Total Disability based on Individual Unemployability (TDIU) prior to October 26, 2010. The Veteran's mononucleosis residuals include fatigue, headaches, sleep disturbances, and other symptoms. The Board found that the Veteran's headaches, which were previously granted service connection and a 50 percent rating effective November 3, 2009, also qualify as residuals of mononucleosis. Therefore, the Board granted a 50 percent rating for headaches associated with mononucleosis residuals, effective November 13, 2008. For chronic sleep disturbances, the Board noted that while these symptoms overlap with major depressive disorder, the higher rating for depression became effective later. The Board assigned a 30 percent rating for chronic sleep disturbances as residuals of mononucleosis from November 13, 2008, to October 25, 2010. The Board also granted entitlement to TDIU as of November 13, 2008, finding that the Veteran's combined disabilities, including fibromyalgia and the newly rated residuals, prevented her from securing or maintaining gainful employment.

Rationale

Headaches previously granted service connection and 50% rating effective Nov 3, 2009.; Headaches found to be residuals of mononucleosis.; Rating assigned from Nov 13, 2008, to coincide with claim filing date.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

14-15 825A

Full Decision Text

Citation Nr: 24026659
Decision Date: 07/17/24 Archive Date: 07/17/24

DOCKET NO. 14-15 825A
DATE: July 17, 2024

ORDER

Entitlement to a rating of 50 percent for headaches, associated with service-connected mononucleosis, is granted as of November 13, 2008.

Entitlement to a rating of 30 percent for chronic sleep disturbances, associated with service-connected mononucleosis, is granted from November 13, 2008 to October 25, 2010, but no later.

Entitlement to a rating of total disability based on individual unemployability as of November 13, 2008 is granted.

FINDINGS OF FACT

1. The Veteran mononucleosis residuals include symptoms of sore throat, fever, debilitating fatigue, muscle aches, headaches, sleep disturbances, joint pain, and enlarged lymph nodes.

2. The Veteran's symptoms of fatigue, body aches, and joint pain are contemplated more favorably by the rating criteria for the Veteran's service-connected fibromyalgia.

3. The Veteran's intermittent sore throat, fever, and enlarged lymph nodes, associated with mononucleosis, do not manifest consistently such that an analogous compensable rating is available in the VA rating schedule.

4. The Veteran's headaches, which have been found to include very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, are among the symptoms associated with mononucleosis and were not service connected prior to November 3, 2009.

5. The Veteran's chronic sleep disturbance was not contemplated by the rating schedule for any other service-connected disability prior to October 26, 2010.

6. Resolving all reasonable doubt in the Veteran's favor, her service-connected disability has prevented her from securing or maintaining substantially gainful employment since at least November 13, 2008.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 50 rating for headaches, associated with residuals of mononucleosis, have been met as of November 13, 2008. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.20, 4.124a, Diagnostic Code 8100.

2. The criteria for entitlement to a 30 percent rating for chronic sleep disturbances, associated with residuals of mononucleosis, have been met from November 13, 2008 to October 25, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.20, 4.130.

3. The criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have been met as of November 13, 2008. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from November 1994 to November 1999. This case comes on appeal of a May 2010 rating decision. The Veteran testified before the Board at a videoconference hearing in March 2018 and a transcript of the hearing is of record.

These issues involve a lengthy procedural history and have been before the Board on multiple occasions. Most recently, in June 2021, the Board remanded the claim for further development.

1. Entitlement to an increased rating for residuals of mononucleosis

Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Where an increase
can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14.

Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010).

As the Board has previously addressed, this claim is a complicated one. This is based on the fact that the Veteran's disability is a disease that is not directly contemplated by the rating schedule, involves an inactive disease process with chronic residuals, and involves claimed symptoms that may overlap with service-connected and non-service connected conditions.

As a matter of background, the Veteran filed the claim of entitlement to an increased rating for mononucleosis in July 2009. However, in a November 13, 2008 claim filing, the Veteran described symptoms of chronic fatigue after continuous exposure to sick people. Given the Veteran's later clarification of seeking service connection for mononucleosis, the Board interprets the November 13, 2008 broadly to include a claim for fatigue due to disease exposure.

In a May 2010 rating decision, the agency of original jurisdiction (AOJ) granted an increased rating of 10 percent, effective the date of the claim. In assigning this rating, the AOJ evaluated the disability under 38 C.F.R. § 4.88b, Diagnostic Code 6313, which is the rating code for avitaminosis. In the May 2010 rating decision, the AOJ explained that this was the Diagnostic Code most comparable to the Veteran's disability.

Throughout the appeal, the Veteran has argued that Diagnostic Code 6313 does not accurately or adequately address the symptoms her disability has produced. In a May 2010 VA examination, the Veteran stated that she experienced chronic fatigue, a lack of energy, and a mild sore throat. She described her symptoms as waxing and waning in severity, but stated that they had never completely gone away since service. According to the Veteran, the more severe exacerbations lasted periods of several months. A laboratory test at that time revealed a positive mononucleosis test. The diagnosis was recurrent/chronic mononucleosis with a disease that was active at the time.

The Veteran then testified before the Board in March 2018. During that testimony, the Veteran explained that she experienced constant fatigue due to fibromyalgia, but when having recurrences of mononucleosis, the fatigue resulted in almost complete incapacitation. She described the recurrences as happening yearly, or every other year, and lasting anywhere from 30 to 90 days. Because of this, the Veteran argued that the condition should be evaluated under the rating schedule for chronic fatigue syndrome rather than its evaluation under the criteria for avitaminosis.
A laboratory test at that time revealed a positive mononucleosis test. The diagnosis was recurrent/chronic mononucleosis with a disease that was active at the time.

Following this hearing, the Board remanded the claim, determining that an updated examination was necessary. In July 2019, the Veteran then underwent a VA infectious diseases examination. At that time, the examiner reported that there was no current or active Epstein-Barr Virus (EBV) infection-the dominant virus involved in a mononucleosis diagnosis-since 2014. The examiner attributed the Veteran's chronic daily fatigue to her fibromyalgia and to chronic sleep issues and reported that there were attributable symptoms to the disease because mononucleosis was inactive.

In a June 2021 decision, the Board remanded the claim again, determining that the July 2019 examination was inadequate. Specifically, the finding that the Veteran lacked a current active mononucleosis infection at the time of the examination did not adequately inform the Board of the severity of the condition's symptoms throughout the period on appeal. As a result, the claim required a more thorough description and explanation as to which of the Veteran's symptoms had reasonably been caused by mononucleosis during that time.

In July 2021, the Veteran then underwent a new VA examination, this time with a nutritional deficiencies disability benefits questionnaire (DBQ). It appears that the AOJ ordered this examination based on the fact that the Veteran's disability was being evaluated under the diagnosis for avitaminosis.

As the Board noted in its April 2022 remand, the July 2021 VA examiner explained in the remarks section of the Veteran's examination report, "The nutritional deficiency DBQ does not, among other things, allow for lab test to determine the status of her [service-connected] mononucleosis or her nutritional status. It also does not allow adequate response to the question asked in the order request." As a result, the examiner continued, "A fair and accurate evaluation of the veteran's mononucleosis status is hindered in this case."

Based on this commentary from the VA examiner, as well as the obvious limitations of a nutritional deficiencies DBQ in evaluating the Veteran's mononucleosis, the Board once again had to remand the claim to obtain a new VA examination.

The Veteran underwent a new VA infectious diseases examination in June 2022. There, the examiner reported that, although the EBV mononucleosis was inactive, at least as of early 2021, the Veteran had residuals of the disease in the form of sore throat, fever, debilitating fatigue, muscle aches, headaches, sleep disturbances, joint pain, and enlarged lymph nodes. The examiner explained that the symptoms of body aches and fatigue overlapped with fibromyalgia. The examiner then explained that the symptoms of sore throat, fatigue, body aches, fever, headaches, joint pain, sleep disturbances, and enlarged lymph nodes overlapped with non-service connected chronic fatigue syndrome. Indeed, the examiner continued, the chronic fatigue syndrome diagnosis "may be a more likely explanation for her symptoms."

As the Board addressed above, pyramiding-assessing multiple ratings for the same symptom-is not permissible. Therefore, in this case, as the symptoms of fatigue and body aches overlap with service-connected fibromyalgia, the Board may not assign multiple ratings for those symptoms. The Veteran's fibromyalgia is rated at 40 percent as of November 13, 2008, the date she first filed a claim of service connection. The Board acknowledges that the Veteran feels her symptoms, specifically, the symptom of fatigue, should be rated under the diagnostic criteria for chronic fatigue syndrome. However, the Board does not find this rating criteria to be the most beneficial. Importantly, the rating criteria under 38 C.F.R. § 4.88b, Diagnostic Code 6354, dictate that for a rating in excess of 60 percent-the first rating in excess of 40 percent-the symptoms must result in periods of incapacitation of at least six weeks total duration per year. The criteria for a 100 percent rating require nearly constant symptoms. Here, the Veteran has acknowledged on multiple occasions that the recurrences of
first filed a claim of service connection. The Board acknowledges that the Veteran feels her symptoms, specifically, the symptom of fatigue, should be rated under the diagnostic criteria for chronic fatigue syndrome. However, the Board does not find this rating criteria to be the most beneficial. Importantly, the rating criteria under 38 C.F.R. § 4.88b, Diagnostic Code 6354, dictate that for a rating in excess of 60 percent-the first rating in excess of 40 percent-the symptoms must result in periods of incapacitation of at least six weeks total duration per year. The criteria for a 100 percent rating require nearly constant symptoms. Here, the Veteran has acknowledged on multiple occasions that the recurrences of mononucleosis symptoms she has experienced occur intermittently, sometimes going multiple years between exacerbations. Thus, the additional symptoms of fatigue she experiences do not meet the criteria for a higher rating under Diagnostic Code 6354 than the 40 percent rating she already receives for fibromyalgia.

However, for the symptoms that overlap with non-service connected chronic fatigue syndrome, the Board observes that the June 2022 VA examiner did not conclusively determine that the symptoms were caused by that disability rather than residuals of mononucleosis.

When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Thus, the Board evaluates this claim as though the potentially overlapping symptoms described by the June 2022 examiner are attributable to residuals of mononucleosis.

As it pertains to recurring, but intermittent, symptoms of sore throat, fever, and enlarged lymph nodes, the rating schedule does not contemplate a compensable rating. The Veteran's joint pain is already contemplated in the rating for fibromyalgia, which addresses "widespread musculoskeletal pain."

However, the symptoms of headaches and sleep disturbances have not adequately been addressed in the evaluation of the Veteran's disability picture.

Regarding headaches, since the Board's most recent remand for this claim, the Board granted entitlement to service connection for headaches. The AOJ established a 50 percent rating for the Veteran's headache condition as of November 3, 2009. Given that the Veteran's headaches are also at least as likely as not a symptom of the residuals of mononucleosis, and that this claim stems from November 13, 2008, the Board therefore assigns a 50 percent rating for headaches associated with mononucleosis residuals, as of that date.

The Veteran's chronic sleep impairment is contemplated in the 70 percent disability rating she receives for major depressive disorder. However, that award became effective as of October 26, 2010. Chronic sleep impairment is contemplated by a 30 percent disability rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Therefore, from November 13, 2008 to October 25, 2010, the Board assigns a 30 percent rating for chronic sleep disturbances associated with mononucleosis residuals.

In summary, the baseline condition of mononucleosis itself does not warrant a rating in excess of 0 percent. However, when rating by analogy and for residuals of the disease, a rating of 50 percent is warranted from November 13, 2008 to November 3, 2009, when it coincides with the 50 percent rating the Veteran already receives for a headache condition. Likewise, a rating of 30 percent for chronic sleep disturbances is warranted from November 13, 2008 to October 25, 2010, when it is superseded by the Veteran's 70 percent rating for major depressive disorder. Evaluation under the criteria for chronic fatigue syndrome is not appropriate in this case as the Veteran is already in receipt of a more favorable rating under the diagnostic criteria for fibromyalgia, which contemplates the Veteran's fatigue symptoms.

2. Entitlement to a rating of total disability based on individual unemployability prior to October 26, 2010

The Veteran is in receipt of an award of a TDIU as of October 26, 2010. As her claim for a TDIU was raised during the pendency of the November 13, 2008 claim on appeal, the claim for a TDIU is considered part and parcel of the increased rating claim and stems from that date as well. Rice v. Shinseki, 22 Vet. App. 447 (2009).

In light of the decision above, the Veteran is now schedularly eligible for a TDIU as of the date of
symptoms.

2. Entitlement to a rating of total disability based on individual unemployability prior to October 26, 2010

In light of the decision above, the Veteran is now schedularly eligible for a TDIU as of the date of her November 13, 2008 claim, with a combined rating of 80 percent and a single disability of 40 percent or higher. 38 C.F.R. 4.16(a).

The evidence plainly demonstrates that the Veteran's fatigue, headaches, body aches, joint pain, and chronic sleep disturbances have prevented her from securing or maintaining gainful employment from at least November 13, 2008.

As a result, entitlement to a TDIU is warranted as of the date of the November 13, 2008 claim.

V. Chiappetta

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Giaquinto, 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.

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