Citation Nr: 0809873 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 02-11 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from February 1996 to April 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In October 2001, the veteran testified before a decision review officer at the RO. In May 2004 and December 2006, the Board remanded the case for further development. In October 2007, the Board received additional service treatment records from the service department. Except for one dental treatment note, the Board observes that they are duplicates of service treatment records already of record and discussed in a prior supplemental statement of the case. As for the dental treatment note, given the nature of the veteran's claimed disability, the Board finds that it is not relevant to this case. Thus, a remand for the RO to review these service treatment records is not warranted. FINDINGS OF FACT 1. The veteran's fibromyalgia did not originate in service and it is not related to any incident of service. 2. The veteran is service-connected for the residuals of a left knee stress fracture rated at 20 percent, the residuals of a right knee stress fracture rated at 10 percent, and the residuals of a left ankle stress fracture rated at 10 percent, for a combined rating of 40 percent. 3. The veteran's service-connected disabilities do not preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Fibromyalgia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence she has in her possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in a May 2004 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate her claims for service connection and a TDIU, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA and the need for the veteran to advise VA of or submit any further evidence she has in her possession that pertains to the claims. A February 2007 letter reiterated the above, as well as providing additional notice on the TDIU claim, and informed the veteran of the information and evidence needed to establish a disability rating and effective date. The claims were last readjudicated in October 2007. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include the veteran's service treatment records and post-service medical records and examination reports. In this regard, the Board observes that after numerous attempts service treatment records have finally been received from the service department. Moreover, in an October 2007 correspondence, the veteran indicated that she had no other relevant information or evidence to submit to substantiate her claims. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, 18 Vet. App. 112; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the claims, any question as to an appropriate disability rating or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: her contentions, service treatment records, private medical records, VA medical records, and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Fibromyalgia Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran contends that her fibromyalgia began in service or within one year thereafter and is thus subject to presumptive service connection for a chronic disease. At her RO hearing, she acknowledged that she was first diagnosed with fibromyalgia after service in October 1996 and cited a favorable August 2001 VA examination report that linked her fibromyalgia to service. Initially, the Board observes that fibromyalgia is not recognized by VA as a chronic disease under 38 C.F.R. § 3.309(a) (2007). In addition, although the veteran served during the Persian Gulf War era, she did not serve in the Southwest Asia theater of operations. See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2007). Thus, service connection is not warranted for the disorder on either presumptive basis. The fact that the veteran is not entitled to the foregoing regulatory presumptions of service connection does not preclude an evaluation as to whether she is entitled to service connection on a direct basis. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). After review, the Board finds that the veteran's fibromyalgia did not originate in service. In this regard, her service treatment records are negative for any complaints, findings or diagnoses of the disorder, including at the time of her discharge. They do, however, show complaints referable to both her knees and left ankle, for which she is service- connected. They also reflect one complaint of lower back pain as well as treatment for asthma. With respect to the asthma, the Board notes that the veteran was given a medical discharge by reason of this physical disability. In this regard, the Board observes that the veteran served on active duty for less than two months. After discharge, the veteran underwent a VA joints examination in May 1996 and a VA general medical examination in June 1996. Neither examination report reflects a diagnosis of fibromyalgia. An October 1996 VA rheumatology clinic note contains the first diagnosis of the disorder. The Board notes that an August 2001 VA examination report relates the veteran's fibromyalgia to service. However, that examiner indicated that the veteran "during her discharge and after her discharge had a diagnosis of fibromyalgia." As noted in the December 2006 remand and as shown above, that statement is not supported by the record, as the disorder was neither noted at her discharge nor shown on two VA examinations in 1996. At the time of those VA examinations, her only complaints involved her knees and ankles, and no other disorder was found. Thus, the Board requested an additional VA examination. In this regard, the Board finds that the August 2001 VA examination report is based on an inaccurate factual premise and is therefore, not probative. See Miller v. West, 11 Vet. App. 345, 348 (1998) (conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). A July 2007 VA examination report reflects complaints of total body pain of a global nature along with persistent insomnia, headaches and chronic depression. The veteran described being in constant pain not only involving her entire central skeletal axis from her cervical area to the sacral area but also chronic pain in all major peripheral joints of both upper and lower extremities. After gathering the veteran's medical history and examining the veteran, the examiner stated that there is no conclusive objective evidence that balances appropriately with the expressed symptoms of the veteran. The examiner then opined that the reported fibromyalgia is not related to the veteran's two- month period of active duty. The Board notes that the above examiner did not have the claims file for review prior to writing his report. In this regard, the examiner noted the deficiency but stated that he did have access to the earlier August 2001 VA examination report. Furthermore, in an August 2007 addendum, the examiner stated that he had been provided the claims file and had reviewed it in its entirety. He then stated that he found nothing contained therein to lead him to the conclusion that any changes were necessary in his previous comments and discussion. Given the above, in addition to the fact that the veteran has not presented any competent medical evidence linking her fibromyalgia to service, the Board finds that her fibromyalgia is not related to any incident of service. In sum, the Board finds that the veteran's fibromyalgia did not originate in service and it is not related to any incident of service. Thus, service connection for the disorder is denied. The Board acknowledges the veteran's contention that her fibromyalgia is related to service. The Board observes, however, that she, as a layperson, is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2007). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2007). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2007). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that she has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render her incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2007). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. If the veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that she is unable to maintain substantially gainful employment due to her service-connected disabilities, her claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that she is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1994). In this case, the veteran is service-connected for the residuals of a left knee stress fracture rated at 20 percent, the residuals of a right knee stress fracture rated at 10 percent and the residuals of a left ankle stress fracture rated at 10 percent, for a combined rating of 40 percent. Thus, her service-connected disabilities do not meet the above-stated percentage requirements. As such, the criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. That notwithstanding, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Therefore, the Board must evaluate whether there are circumstances in the veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based upon individual unemployability on an extraschedular basis. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On her November 2001 TDIU claim, the veteran indicated that she was unable to work due to depression, fibromyalgia and headaches. At her October 2001 RO hearing, she testified that she was unable to work due to her depression. The Board observes that service connection is not in effect for any of these disorders. After review, the Board concludes that the preponderance of the evidence fails to show that the veteran's service- connected disabilities, when considered with her educational attainment and occupational background, render her unable to secure or follow a substantially gainful occupation. The Board observes that the veteran is currently unemployed. However, the Board notes that, after conducting the July 2007 examination, the VA examiner stated that there are no present residuals of the veteran's service-connected disabilities that would prevent her from entering into the work force in at least a sedentary type of occupation. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the veteran's service-connected disabilities alone, without consideration of her nonservice-connected disabilities, are of such severity as to preclude her participation in all forms of substantially gainful employment, such that referral for extraschedular consideration is warranted. Accordingly, entitlement to a TDIU is denied. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for fibromyalgia is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs