Citation Nr: 1301806 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-11 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to an initial rating in excess of 40 percent for fibromyalgia. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from January 2000 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for fibromyalgia and assigned an initial 40 percent rating. The Board remanded the claim in January 2012 for further development and consideration. The issues have been amended to include a claim for a TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDING OF FACT The Veteran's fibromyalgia symptomatology has been constant or nearly so; however, her symptomatology is adequately contemplated by the Rating Schedule criteria. CONCLUSION OF LAW The criteria for an initial rating in excess of 40 percent for fibromyalgia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5025 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant 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; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). In this case, in a September 2006 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the instant claim. The evidence of record includes the service treatment records, post service treatment records, Social Security Administration (SSA) records, and VA examination reports. In January 2012, the Board remanded the instant claim to obtain Social Security Administration (SSA) records and ongoing treatment records. The Veteran's SSA records were obtained, however, the Veteran failed to respond to a request for information to obtain additional treatment records. The Board therefore concludes that there has been substantial compliance with the terms of the previous remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, there is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Therefore, the Board determines that VA has made reasonable efforts to the assist the Veteran in obtaining the evidence necessary to substantiate the instant claim. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so. 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 Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter 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). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that from the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Board has reviewed all the evidence of record. 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 appellant or obtained on his 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). The Veteran is service-connected for fibromyalgia, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5025. Fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, that is constant, or nearly so, and refractory to therapy warrants a 40 percent evaluation. "Widespread pain" means pain in both the left and right sides of the body that is both above and below the waist, and that affects both axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5025. A 40 percent disability rating is the maximum rating assigned for fibromyalgia. As the Veteran is already in receipt of the maximum rating for this disability, a schedular rating in excess of 40 percent is not warranted. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). As the Court explained in Thun v. Peake, 22 Vet. App. 111, 115 (2008), a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry." If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun, 22 Vet. App. at 115. Here, the Veteran's symptoms are contemplated by the evaluation presently assigned. She has complained of symptoms including musculoskeletal pain and tenderness, sleep disturbance, depression, and fatigue. Although she has alleged that her disability has restricted her ability to earn a living, during the course of the claim she was noted to be working and attending school full time, as indicated in a January 2010 VA outpatient note. In 2011, she was noted to be unemployed but attending school full time for business administration. An SSA decision in 2012 found that she was capable of past relevant work. Evidence associated with that claim indicated the Veteran was able to mop the floor, grocery shop, vacuum, do laundry, occasionally lift 50 pounds, and frequently lift 25 pounds. She was also noted to be able to stand, walk, and sit, with normal breaks, for a total of about 6 hours in an 8 hour workday. As noted above, the 40 percent rating for fibromyalgia contemplates widespread musculoskeletal pain and tender points, fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, that is constant, or nearly so, and refractory to therapy. Her symptoms fall squarely within the rating criteria. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, supra. Consequently, the Board finds that it needs not proceed to the second step of the Thun analysis, and that referral for extraschedular consideration is not warranted. The Board acknowledges that evidence is being developed for the Veteran's TDIU claim with regard to any effects of her service-connected fibromyalgia on her ability to obtain or retain employment. However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate her service-connected disability. Id. at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As noted above, the rating criteria adequately address the Veteran's disability picture. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of her fibromyalgia. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher initial rating for fibromyalgia. In reaching the above conclusions, 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 claim, 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, 55-56 (1990). ORDER Entitlement to an initial rating higher than 40 percent for fibromyalgia is denied. REMAND TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2012). Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth above. Id. Pursuant to the Board's January 2012 remand, records from SSA were obtained. The Veteran stated that she was disabled from April 2011 due to fibromyalgia, degenerative disc disease, and thyroid problems. Following a request for reconsideration of the prior denial of her claim, SSA concluded in January 2012 that the denial of SSA benefits was proper. She reported that she last worked in April 2011, although VA treatment records indicate she was a full time student in August 2011. As noted above, SSA records indicated the Veteran was able to mop the floor, grocery shop, vacuum, do laundry, occasionally lift 50 pounds, frequently lift 25 pounds and able to stand, walk, and sit, with normal breaks, for a total of about 6 hours in an 8 hour workday. As the evidence shows that the Veteran feels her fibromyalgia impacts her employability, the issue has been reasonably raised. At present, there is no medical evidence indicating that she is unable to work due solely to her service-connected fibromyalgia. However, the Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim, nor has a VA Form 21-8940 been provided to her to obtain employment information. Thus, on remand, the RO/AMC should provide appropriate notice to allow the Veteran an opportunity to submit evidence to support her claim. Accordingly, this matter is hereby REMANDED to the RO/AMC for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. After conducting any additional development deemed necessary, the RO/AMC should adjudicate the Veteran's claim for TDIU in the first instance, to include whether referral for extraschedular entitlement to a TDIU is necessary. If the claim is denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs