Citation Nr: 1603372 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-31 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for fibromyalgia, secondary to service connected bilateral knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. During the course of the appeal, the claims file was permanently transferred to the RO in St. Louis, Missouri, which now has jurisdiction over the claim on appeal. In her November 2013 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ). The Veteran withdrew her hearing request and the record does not reflect that she has made a further request to reschedule the canceled hearing. This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The evidence does not show that the Veteran's fibromyalgia is secondary to the Veteran's service-connected bilateral knee disability. 2. The evidence does not show that the Veteran is unable to secure and follow substantially gainful unemployment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran's fibromyalgia is not proximately due to, or aggravated by, the Veteran's service-connected bilateral knee disability. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.310 (2015). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) ; see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). The notice requirement was met in this case by pre-adjudication letter sent to the Veteran in March 2011. VA has also satisfied its duty to assist. This duty includes assisting in the obtaining service treatment records, all potentially relevant pre-and post-service treatment records, and providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the claims file contains the Veteran's service treatment records, and all potentially relevant post-service medical records, both VA and private, which remain available. In addition, medical opinions were obtained. These opinions are adequate to decide the claims as they were based upon consideration of the Veteran's pertinent medical history, including her lay assertions, and because they sufficiently inform the Board of the experts' medical judgment on the medical questions at issue, as well as the experts' essential rationale for the opinions. These opinions are sufficient to allow the Board to make a fully informed determination. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012); Stefl v. Nicholson, 21 Vet. App. 123, 123 (2007). There is no further action to be undertaken in order to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claims. Merits of the Service Connection Claim The Veteran asserts that her fibromyalgia is due to her service-connected bilateral knee disabilities. As the preponderance of the evidence is against service connection for fibromyalgia, the Board is denying her appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39. Fibromyalgia is not listed among the chronic diseases under section 3.309(a), therefore service connection cannot be presumed under 38 C.F.R. § 3.307, nor can it be established under the relaxed "continuity of symptomatology" evidentiary standard under 38 C.F.R. § 3.303(b). Rather, a relationship must be found under the three-element test discussed above. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the October 2013 Decision Review Officer conference, the Veteran indicted that her private neurologist told her that her fibromyalgia was due to her bilateral knee disability. However, the record does not contain medical evidence of such, including any statement from the private neurologist, to support her contention. The Veteran was afforded multiple VA examinations. Prior to submission of the current claim, during an October 1994 VA examination for her bilateral knee disability, the examiner reported that the Veteran was involved in a motor vehicle accident in 1990 - i.e., several years after discharge from service. The Veteran stated that she fractured her neck, but her knees were not affected. At that time, the Veteran was employed as a legal secretary, and standing for work was limited to two hours per day. In November 1997, the Veteran underwent another VA examination. She was self-employed as a clerical worker and indicated that she would get flare-ups after doing increased weight bearing activities and after standing for one or two hours. In April 2011, the Veteran was afforded two VA examinations - a general medicine examination conducted by a nurse practitioner, and one conducted by an orthopedist. The nurse practitioner reported that the Veteran's fibromyalgia was diagnosed by a private doctor in March 2010. She also reported that the pain in the Veteran's hands was likely due to fibromyalgia. The Veteran reported that most of the time she has malaise, fatigue, lethargy, forgetfulness and migrating pain is nearly constant. She also reported that two or three days per week she was bed ridden due to pain, fatigue and distress. The Veteran further reported that she worked as a substitute teacher for four days within the past three years. She stated that two years previously, she had taught for three days in a row, but after those three days she was unable to be active for over a week. Additionally, the Veteran indicated that she was unable to participate in field trips during her Master's of Education program. The examiner determined that the fibromyalgia "would prevent her from performing any type of physical employment and likely prohibits her from being able to do any type of work for eight hours at a time, especially if walking or standing were involved." The examiner further determined that the Veteran's bilateral knee pain would prevent her from performing any physical employment. However, in her assessment of employability, the also considered non-service-connected disorders. She noted that dermatitis, photodermatitis, possible rosacea, and/or eczema would prevent any employment that required outdoors work at all; generalized pruritus without apparent skin disease was unlikely to permit any type of employment; asthma would prevent any physical employment, and when exacerbated would prevent the veteran from doing any employment; GERD was unlikely to prevent any type of employment; migraine headaches would prevent any type of employment when present; pleuritic chest wall pain would likely prevent any physical employment and employment that required significant speaking; HSV was unlikely to prevent any type of employment; and other conditions were unlikely to prevent any type of employment. The second examiner, a contracted orthopedist, evaluated the Veteran for individual unemployability including her service-connected bilateral knee disability. The examiner also evaluated her carpal tunnel syndrome and fibromyalgia. He determined that the Veteran has "a moderate pain level even at rest on a daily basis throughout the day and has recurrent swelling in the knees. The veteran can only walk on flat surfaces. She cannot use stairs, ladders, or uneven surfaces. The veteran's knees do give out so there would be no lifting, pushing or pulling more than a very light amount of weight of less than five pounds. She also has limited sitting due to stiffness and pain developing in the knees. This moderately limits the veteran for any activity outside of the home. This does moderately impair the veteran for ADL and IADL with no significant lifting, pushing, pulling, ambulating, standing or sitting more than 15 minutes at a chronic pain level." He determined that the Veteran's bilateral knee pain would limit her from a prior profession as a teacher, but would not preclude her from her profession depending on standing ambulating requirements. He further determined that her bilateral knee disability would preclude her in any position requiring any significant standing or ambulating greater than fifteen minutes at a time.." This examiner also determined that the achiness and mild edema in the Veteran's hands may be related to fibromyalgia, opining that the hands were the only known underlying etiology, which was consistent with her other signs and symptoms of fibromyalgia with generalized joint pain and swelling. He indicated that there may be some impact of fibromyalgia on the knees, but it would be difficult to discern as the veteran has a known knee condition other than fibromyalgia. The Veteran was afforded an additional VA examination in October 2013 for fibromyalgia. The examiner opined that the Veteran's fibromyalgia is not due to her service connected bilateral knee conditions. He indicated that while the exact cause of fibromyalgia is usually unclear and 'the disorder is, in fact, separate from mental disorders, it is also well known that fibromyalgia is more common in those with either depression or anxiety and in those, with additional sleep disorders. It is also more common in those who are overweight and who are relatively inactive. He indicated that the Veteran does have a sleep disorder (obstructive sleep apnea), and observed that she is overweight, and remains on treatment for depression/anxiety (and she is apparently doing through a divorce process). The examiner determined that all of these factors are most likely contributors to her fibromyalgia even if the timing of their diagnosis was not clearly correlative with the physical pain of her fibromyalgia (since it is common for patients with fibromyalgia to note the pain first). The examiner noted that although Veteran is apparently contending that her care providers have discussed the possibility that her knee condition was a trigger for her fibromyalgia, statements to this effect are not found in any available care record. The Veteran was afforded another VA examination in November 2014. After a thoroughly documented review of the record, this examiner opined that there was "not sufficient evidence in the available record to indicate that there is a 50 percent likelihood that she had fibromyalgia during or within a year after discharge from service." In support of his opinion, the examiner noted that "the documented occasional lower leg numbness and knees giving way noted in 1987 are not unusual with knee conditions and are not diagnostic for fibromyalgia." He further noted that the fibromyalgia symptoms documented in 1995 were attributed to the post-partum period rather than her occasional left knee pain. He noted that there is sufficient documentation in medical literature, in my opinion, to assume that painful conditions are potential risk factors for the development of fibromyalgia, along with genetic factors, mental health factors and other environmental effects. However, he reiterated that there was insufficient evidence in the available record to conclude that her service-connected knee conditions are, to a 50 percent likelihood, responsible for the causation or permanent aggravation of her fibromyalgia, as opposed to the effects of other risk factors. Additionally, he determined that permanent aggravation beyond natural progression has not been documented in the available record. The Board finds the VA examiners' opinions probative, especially the most recent November 2014 opinion. The examiner investigated the Veteran's assertions, clearly reviewed the file, referred to various historical medical records, and supported his opinions with explanatory rationale. Prejean v. West, 13 Vet. App. 444 (2000); Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). There is no medical evidence that contradicts the VA examiner's opinion. Having reviewed the record evidence, the Board finds that service connection for fibromyalgia is not warranted. The Board does not doubt the Veteran's ability to perceive changes in her medical condition. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, she is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Here, the Veteran's lay assertion is assigned less probative weight than the findings of the VA examiners, particularly the November 2014 examiner, who reviewed the record, and interviewed and examined the Veteran. The preponderance of the evidence is against this claim. Under these circumstances, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Total Disability based on Individual Unemployability The Veteran contends that she is unable to work due to her service-connected left knee disability rated at 30 percent disabling and right knee disability rated at 30 percent disabling. A TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent her from obtaining or maintaining gainful employment for which her education and occupational experience would otherwise qualify her. 38 C.F.R. § 4.16 (2015). To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a TDIU. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Because the Veteran has two service-connected disabilities, neither or which is ratable at 40 percent or more, the Veteran does not meet the threshold percentage requirements for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The affirmative evidence does not show that the Veteran's service-connected disabilities are so severe that it is impossible to follow a substantially gainful occupation. The preponderance of the competent, credible, and probative evidence is against a finding that Veteran's service-connected disabilities preclude her from securing and maintaining substantially gainful employment and entitlement to a TDIU must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the preponderance of the evidence does not show that she is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected disabilities, the Board does not find that referral for extraschedular consideration is warranted. 38 C.F.R. § 4.16(b). (ORDER ON NEXT PAGE) ORDER Service connection for fibromyalgia, secondary to service connected bilateral knee disability is denied. A total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs