ACNE

Summary

The veteran served from January 2002 to June 2002 and January 2004 to April 2005. The veteran appeals the denial of service connection for chronic fatigue syndrome and seeks an increased rating for an acquired psychiatric disorder and a right knee condition. The Board granted an initial 30 percent disability rating for acne, finding the evidence in relative equipoise between superficial and deep acne affecting 40% or more of the face and neck. For the acquired psychiatric disorder, the Board denied increased ratings beyond 30% for the period of July 2, 2013, to December 19, 2019, and beyond 70% for December 20, 2019, to September 23, 2021, finding the evidence did not support the higher criteria. The Board denied an increased rating for the right knee condition, finding the evidence did not support flexion limited to 30 degrees or significant instability, and that the veteran's existing 10% rating was appropriate. Service connection for chronic fatigue syndrome was denied, as the Board found no diagnosis of the condition in the record, and the veteran's fatigue was attributed to non-compliant treatment for obstructive sleep apnea.

Rationale

Probative evidence in relative equipoise regarding deep acne; Highest schedular rating granted

Full Decision Text

Citation Nr: 26004834
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 17-52 426
DATE: April 22, 2026

ORDER

An initial 30 percent disability rating for acne is granted.

From July 2, 2013, to December 19, 2019, entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is denied.

From December 20, 2019, to September 23, 2021, entitlement to an initial disability rating in excess of 70 percent for an acquired psychiatric disorder is denied.

An initial disability rating in excess of 10 percent for a right knee condition (exclusive of a 100 percent temporary total rating from May 4, 2016, to August 31, 2016) is denied. 

Service connection for chronic fatigue syndrome is denied. 

FINDINGS OF FACT

1. The probative evidence of record is in relative equipoise as to whether the Veteran has deep acne that affects 40 percent or more of the face and neck. 

2. From July 2, 2013, to December 19, 2019, the probative evidence of record does not support a finding that the Veteran's acquired psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. 

3. From December 20, 2019, the probative evidence of record does not support a finding that the Veteran's acquired psychiatric condition produces total occupational and social impairment. 

4. The probative evidence of record does not support a finding that flexion of the Veteran's right knee was limited to 30 degrees, even when accounting for flare-ups and repeated use over time.

5. The probative evidence does not support a finding that the Veteran has a diagnosis of chronic fatigue syndrome. 

CONCLUSIONS OF LAW

1. The criteria for an initial 30 percent rating for acne have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7824. 

2. From July 2, 2013, to December 19, 2019, the criteria for a rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411.

3. From December 20, 2019, the criteria for a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411.

4.  The criteria for a rating in excess of 10 percent for a right knee limitation of flexion (exclusive of a 100 percent temporary total rating from May 4, 2016, to August 31, 2016) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5259-5260. 

5. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2002 to June 2002 and from January 2004 to April 2005.

This matter comes to the?Board of Veterans' Appeals?(Board) on appeal from January 2015 and May 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 

These matters were before the Board in December 2022 and July 2024 during which they were remanded for further development. 

1. An initial 30 percent disability rating for acne is granted.

Legal Criteria

Effective August 13, 2018, VA amended the criteria for rating skin disabilities.  

Generally, the Board may not apply an amended regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Here, the final rule amending the criteria for rating skin disabilities expressly stated that VA's
8 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 

These matters were before the Board in December 2022 and July 2024 during which they were remanded for further development. 

1. An initial 30 percent disability rating for acne is granted.

Legal Criteria

Effective August 13, 2018, VA amended the criteria for rating skin disabilities.  

Generally, the Board may not apply an amended regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Here, the final rule amending the criteria for rating skin disabilities expressly stated that VA's intent for claims pending prior to August 13, 2018, the effective date of the regulatory change, is for them to be considered under both the pre-amendment and amended rating criteria, and whichever criteria is more favorable to the claimant is to be applied.  83 Fed. Reg. 32,593 (July 13, 2018).  In other words, the Board may retroactively consider and apply the amended rating criteria prior to August 13, 2018.  Further, the final rule stated that for applications filed on or after August 13, 2018, only the amended criteria is to be applied.  Id.

The pre- and post-amendment ratings criteria under Diagnostic Code 7828 for acne are the same.  A noncompensable rating is assigned for superficial acne (comedones, papules, pustules) of any extent.  A 10 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck.  A 30 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck.  Acne can also be evaluated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. 

Factual Background

The Veteran was afforded a December 2014 VA examination during which the conducting examiner noted that none of his skin conditions cause scarring or disfigurement of the head, face, or neck. The examiner noted that the Veteran had superficial acne (comedones, papules, pustules, and superficial cysts). 

The Veteran was then afforded a July 2017 VA examination during which the examiner noted that he did not have benign or malignant skin neoplasms. The examiner indicated that the Veteran had inflammatory papules on his back. The examiner did not indicate that the Veteran had deep acne, such as deep, inflamed nodules or pus-filled cysts. The examiner noted that the Veteran's acne affected less than 5 percent of his total body area.

The Veteran submitted an August 2017 disability benefits questionnaire (DBQ) by a private physician who indicated that he had deep acne affecting 40 percent or more of the face, neck, and body areas other than the face and neck. 

The Veteran was afforded an April 2024 VA examination during which the conducting examiner noted that he had superficial acne but not deep acne. The examiner indicated that the Veteran's acne covered 5 percent or less of his total body area. 

Analysis

The Board notes that the August 2017 private physician indicated that the Veteran had deep acne, which affects 40 percent or more of the face and neck, while the July 2017 and April 2024 VA examiners noted that he had superficial acne, which covered less than 5 percent of his body. 

Accordingly, the Board finds that the probative evidence of record is in relative equipoise as to whether the Veteran has deep acne that affects 40 percent or more of the face and neck. 

As such, the Board finds that an initial 30 percent rating is granted for the Veteran's service-connected acne. The Board notes that this is the highest schedular rating available. 

2. From July 2, 2013, to December 19, 2019, entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is denied.

Legal Criteria

Under Diagnostic Code 9411, PTSD, a 30 percent rating is warranted for PTSD if there is 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
's service-connected acne. The Board notes that this is the highest schedular rating available. 

2. From July 2, 2013, to December 19, 2019, entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is denied.

Legal Criteria

Under Diagnostic Code 9411, PTSD, a 30 percent rating is warranted for PTSD if there is 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, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent rating is warranted for 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 (e.g., 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent rating is warranted for 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 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 - 43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

Factual Background

The Veteran was afforded a December 2014 VA examination during which the conducting examiner noted that his acquired psychiatric disorder produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

The examiner noted that the Veteran's PTSD caused symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran had good grooming and hygiene, good eye contact, alert, and oriented to person, place, date, and situation. The Veteran's behavior was attentive and cooperative, with regular speech, congruent and appropriate affect, coherent, logical, and goal-oriented thought process, fair insight, and good judgment. 

The Veteran reported having problems with depression as he recently separated from his wife and hates his job. 

Analysis

The probative evidence of record does not support a finding that the Veteran's acquired psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. 

The record does not indicate that the Veteran displayed symptoms of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands, memory issues, impaired judgment, impaired abstract thinking, disturbances of motivation and
 oriented to person, place, date, and situation. The Veteran's behavior was attentive and cooperative, with regular speech, congruent and appropriate affect, coherent, logical, and goal-oriented thought process, fair insight, and good judgment. 

The Veteran reported having problems with depression as he recently separated from his wife and hates his job. 

Analysis

The probative evidence of record does not support a finding that the Veteran's acquired psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. 

The record does not indicate that the Veteran displayed symptoms of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands, memory issues, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships.

Accordingly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 30 percent from July 2, 2013, to December 19, 2019.

3. From December 20, 2019, to September 23, 2021, entitlement to an initial disability rating in excess of 70 percent for an acquired psychiatric disorder is denied.

Factual Background

The Veteran was afforded a December 2019 VA examination during which the conducting examiner noted that his acquired psychiatric condition produces occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and/or mood. The Veteran reported that he had been diagnosed with chronic alcoholism. The conducting examiner indicated that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. 

The examiner indicated that the Veteran's PTSD produced symptoms of depressed mood, anxiety, panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, suicidal ideation, impaired impulse control, and neglect of personal appearance and hygiene.

The Veteran denied homicidal ideation, delusions, or hallucinations.  

The Veteran was afforded a January 2020 VA examination during which the conducting examiner noted that his acquired psychiatric condition produces occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran's condition produced symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, suicidal ideation, and an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). 

The Veteran reported that three months prior to the examination, he began working at the VA as a medical support assistant.

Analysis

The record does not support a finding that the Veteran's acquired psychiatric condition produces total occupational and social impairment. While the record indicates that the Veteran displayed an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the Veteran reported at the January 2020 VA examination that he was working as a medical support assistant. 

As such, the Board finds that the Veteran's condition does not produce total occupational impairment. 

Accordingly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 70 percent from December 20, 2019, to September 23, 2021.

4. An initial disability rating in excess of 10 percent for a right knee condition (exclusive of a 100 percent temporary total rating from May 4, 2016, to August 31, 2016) is denied. 

Legal Criteria 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See?38 U.S.C. § 1155;?38 C.F.R. § 4.1. 

Initially, the Board notes that during the pendency of the appeal VA amended some of the criteria for rating musculoskeletal disabilities, effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (Dec. 29, 2020); 86 Fed Reg 8142 (Feb. 4, 2021). Where the criteria for rating a disability are changed while an appeal is pending the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. Kuzma v. Principi, 341 F.3d 
.F.R. § 4.1. 

Initially, the Board notes that during the pendency of the appeal VA amended some of the criteria for rating musculoskeletal disabilities, effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (Dec. 29, 2020); 86 Fed Reg 8142 (Feb. 4, 2021). Where the criteria for rating a disability are changed while an appeal is pending the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 3-2000. The revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, the Board must consider the Veteran's appeal under both criteria and apply whichever is more favorable to the Veteran.

DC 5256 provides for a 40 percent rating for unfavorable ankylosis with?knee?in?flexion?between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the?knee?in?flexion?between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the?knee?in?flexion?at an angle of 45 degrees or more. 

DC 5257 provides two separate rating criteria: one pertaining to recurrent subluxation and instability and the other addressing patellar instability. Knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or (b) an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device (e.g., cane, crutch, walker) or brace for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and a brace for ambulation. 38 C.F.R. § 4.71a.

Under the version of DC 5257 in effect prior to February 2021, pertaining to other knee impairments, including recurrent subluxation or lateral instability, 10, 20, or 30 percent disability ratings are warranted for slight, moderate, or severe findings, respectively. 38 C.F.R. § 4.71a, DC 5257. The Board notes that the version of DC 5257 in effect at the time the Veteran filed his claim did not define the terms, mild, moderate, and severe. However, in order to apply the criteria, the Board must explain how it interprets such terms, as will do so below.

For reference and illustrative purposes, the definition for "mild" includes not very severe. Webster's II New College Dictionary at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id.at 704. Finally, definitions for "severe" include extremely intense. Id.at 1012. It is also noted that the term "moderately severe" indicates impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

Additionally, prior to February 7, 2021, objective medical evidence is not required or is to be favored over lay evidence. English v. Wilkie, 30 Vet. App. 347, 352 (2018).

Patellar instability is rated as 10 percent disabling a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a
 that is considered more than "moderate" but not to the extent as to be considered "severe."

Additionally, prior to February 7, 2021, objective medical evidence is not required or is to be favored over lay evidence. English v. Wilkie, 30 Vet. App. 347, 352 (2018).

Patellar instability is rated as 10 percent disabling a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. The maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

DC 5260 provides ratings based on?limitation?of?flexion?of the leg. A 10 percent rating is warranted for?flexion?limited?to 45 degrees. A 20 percent rating is warranted for?flexion?limited?to 30 degrees. The maximum 30 percent rating is warranted for?flexion?limited?to 15 degrees. 

DC 5261 provides ratings based on?limitation?of extension of the leg. A 10 percent rating is warranted for extension?limited?to 10 degrees. A 20 percent rating is warranted for extension?limited?to 15 degrees. A 30 percent rating is warranted for extension?limited?to 20 degrees. A 40 percent rating is warranted for extension?limited?to 30 degrees. The maximum 50 percent rating is warranted for extension?limited?to 45 degrees. 

Under DC 5262, for shin splints in one lower extremity a noncompensable rating is warranted where shin splints have received treatment for less than 12 consecutive months; a 10-percent rating is warranted where shin splints have required treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment; and, a 20-percent rating is warranted where shin splints have required treatment for no less than 12 consecutive months, and unresponsive to either surgery and either shoe orthotics or other conservative treatment.?38 C.F.R. § 4.71a, DC 5262 (2021). 

For diagnostic codes that are based on?limitation?of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below.?38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown,?8?Vet. App.?202?(1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.?38 C.F.R. § 4.45. For diagnostic codes that are based on?limitation?of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki,?25?Vet. App.?32?(2011). These rules have been considered in the analysis below. 

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 required criteria; otherwise, the lower rating will be assigned. See?38 C.F.R. § 4.7. 

Factual Background

The Veteran was afforded a February 2016 medical examination during which the examiner demonstrated 0 to 90 degrees of flexion with weight-bearing, with no instability.

The Veteran was afforded a July 2017 VA examination during which he displayed 0 to 60 degrees of flexion. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to intense and intolerable pain. The Veteran was not being examined after repeated use over time or during a flare-up, but that pain, weakness, fat
 higher evaluation will be assigned if the disability picture "more nearly approximates" the required criteria; otherwise, the lower rating will be assigned. See?38 C.F.R. § 4.7. 

Factual Background

The Veteran was afforded a February 2016 medical examination during which the examiner demonstrated 0 to 90 degrees of flexion with weight-bearing, with no instability.

The Veteran was afforded a July 2017 VA examination during which he displayed 0 to 60 degrees of flexion. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to intense and intolerable pain. The Veteran was not being examined after repeated use over time or during a flare-up, but that pain, weakness, fatigability, or incoordination would not significantly limit functional ability after repeated use over time or during a flare-up. 

The examiner indicated that the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability was indicated, but testing was not performed due to intense and intolerable pain. The Veteran had 4/5 muscle strength upon flexion and extension. The Veteran had no ankylosis of the right knee. The Veteran did not have a meniscal condition of the right knee. The Veteran required the occasional usage of a cane. 

The examiner noted objective pain when the right knee was used in non-weight-bearing. The examiner indicated that passive range of motion produced the same results as active range of motion. 

The Veteran was then afforded an April 2024 VA examination during which he endorsed progressively worsening right knee pain. The Veteran displayed 105 degrees of flexion, and 5 degrees of extension of the right knee. There was evidence of pain upon weight-bearing and active motion, which did not result in or cause functional loss. There was objective evidence of crepitus. 

The Veteran was unable to perform repetitive-use testing with at least three repetitions due to fear of pain. 

The Veteran was not being examined immediately after repeated use over time. The examiner opined that pain and lack of endurance would limit flexion to 105 degrees and extension to 5 degrees. 

The Veteran was not being examined during a flare-up, but the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with flare-ups. 

There was no recurrent subluxation or persistent instability of the right knee. The Veteran required a prescription for a cane for ambulation. The examiner noted that the Veteran had a meniscal tear, but it did not result in frequent episodes of joint "locking", pain, or effusion. 

Joint stability testing was not performed for the right knee due to acute pain after range of motion testing. The Veteran did not report or have a history of instability or recurrent subluxation of the right knee. 

Passive range of motion of the right knee was not performed because it may have caused the Veteran severe pain or the risk of further injury.  

The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, or any tibial or fibular impairment.  

Analysis 

In June 2016 and October 2016 rating decisions, VA granted a temporary total evaluation based on surgical or other treatment necessitating convalescence for a right knee disability, effective May 4, 2016, and granted a 10 percent evaluation, from September 1, 2016. In an August 2017 rating decision, VA granted an initial disability rating of 10 percent for right knee patellofemoral pain syndrome from July 2, 2013, to May 4, 2016, under DC 5260. 

The Board finds that a rating in excess of 10 percent under DC 5260 is not warranted. None of the examinations on appeal indicate that flexion of the Veteran's right knee was limited to 30 degrees even when accounting for flare-ups and repeated use over time. Rather, the record indicates that the Veteran's right knee is limited to, at worst, 60 degrees.

The Board finds that the Veteran is not entitled to a separate rating under DC 5261 for limitation of extension because the probative evidence of record during the appellate period does not indicate that the Veteran's extension was limited to 10 degrees, even when accounting for flare-ups or repetitive use over time. 

Additionally, the probative evidence of record is against a finding that the Veteran has ankylosis, cartilage removal, effusion, a semilunar condition, nonunion of the tibia and fibula, or genu recurvatum and thus the Veteran is not eligible for separate compensable ratings for his right knee under DC 5256, 5258, 5259, 5262, or 5263. 

The Board finds that the Veteran is not entitled
 to a separate rating under DC 5261 for limitation of extension because the probative evidence of record during the appellate period does not indicate that the Veteran's extension was limited to 10 degrees, even when accounting for flare-ups or repetitive use over time. 

Additionally, the probative evidence of record is against a finding that the Veteran has ankylosis, cartilage removal, effusion, a semilunar condition, nonunion of the tibia and fibula, or genu recurvatum and thus the Veteran is not eligible for separate compensable ratings for his right knee under DC 5256, 5258, 5259, 5262, or 5263. 

The Board finds that the Veteran is not entitled to a separate compensable rating for right knee instability at any time during the appeal period. In this regard, the Board notes that there is no objective evidence of right knee instability at any time during the appeal period. While the July 2017 and August 2024 VA examiners did not perform joint stability testing, this was due to fear of pain which the Veteran is already being compensated for under DC 5260. Both the July 2017 and August 2024 VA examinations noted that the Veteran did not report a history of recurrent subluxation or lateral instability of the right knee.  Accordingly, the probative evidence does not suggest instability during the appeal period, and a separate rating for right knee instability is not warranted. 38 C.F.R. § 4.71a, DC 5257.

5. Service connection for chronic fatigue syndrome is denied. 

Legal Criteria

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. 

Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 

Factual Background

The Veteran was afforded a December 2014 VA examination during which the conducting examiner indicated that he did not have a diagnosis of chronic fatigue syndrome. The examiner noted that the Veteran did not have any findings, signs, or symptoms attributable to chronic fatigue syndrome. 

The Veteran was afforded an April 2024 VA examination during which the conducting examiner indicated that he did not have a diagnosis of chronic fatigue syndrome. 

In October 2024, a VA physician reviewed the claims folder and indicated that there is no diagnosis because chronic fatigue syndrome is a diagnosis of exclusion. The examiner indicated that the medical records were silent for evaluation, treatment, or diagnosis of chronic fatigue syndrome. The examiner noted that Veteran's obstructive sleep apnea is likely the predominant cause of his fatigue symptoms. As a rationale, the physician explained that obstructive sleep apnea causes fatigue due to decreased oxygenation levels during sleep cycles. The physician further noted that obstructive sleep apnea is due to airway obstruction during relaxation of muscles in the airway during REM cycle of sleep. 

The physician opined that it was less likely than not that the Veteran's chronic fatigue condition is caused by his toxic exposure risk activity (TERA). As a rationale, the examiner explained that there is no evidence to support that service in southwest Asia or potential occupational exposures as a motor vehicle operator are causes of fatigue related to sleep apnea. The examiner noted that the Veteran has a history of obstructive sleep apnea but, per the records, is not compliant with treatment. The examiner explained that sleep apnea causes fatigue due to decreased oxygenation levels during sleep cycles. 

Analysis

The probative evidence does not support a finding that the Veteran has a diagnosis of chronic fatigue syndrome. 

The Board notes that the December 2014, April 2014, and October 2024 VA examiners all indicated that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Board notes that the remaining medical treatment records do not confirm a diagnosis of chronic fatigue syndrome. 

The Board acknowledges that the Veteran believes that he has a diagnosis of chronic fatigue syndrome. While the
 apnea. The examiner noted that the Veteran has a history of obstructive sleep apnea but, per the records, is not compliant with treatment. The examiner explained that sleep apnea causes fatigue due to decreased oxygenation levels during sleep cycles. 

Analysis

The probative evidence does not support a finding that the Veteran has a diagnosis of chronic fatigue syndrome. 

The Board notes that the December 2014, April 2014, and October 2024 VA examiners all indicated that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Board notes that the remaining medical treatment records do not confirm a diagnosis of chronic fatigue syndrome. 

The Board acknowledges that the Veteran believes that he has a diagnosis of chronic fatigue syndrome. While the Veteran is competent and credible to report observable symptoms, the Board does not find that the Veteran is competent, that is qualified, to provide a medical diagnosis of chronic fatigue syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

In the absence of a present disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

 

 

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bahus, Alexander

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.