Citation Nr: 1753026 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-36 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected dysthymic disorder. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected dysthymic disorder and/or sacroiliitis. 3. Entitlement to a rating in excess of 70 percent for service-connected dysthymic disorder, to include insomnia. 4. Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from August 1982 to September 1992. She had INACDUTRA from February 23, 1982, to February 28, 1982, and ACDUTRA from March 1982, to July 1982, and July 5, 1987, to July 18, 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In connection with this appeal, the appellant testified at a hearing before the undersigned Veterans Law Judge in December 2014. A transcript of that hearing is of record. In September 2015, the RO granted service connection for insomnia. The appellant's insomnia was incorporated under her existing evaluation for dysthymia and she was granted an increased rating of 70 percent effective June 14, 2007. This represents a complete grant of her appeal in regard to the issue of insomnia. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. In February 2015, the Board remanded the appellant's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). In March 2015, the appellant submitted a statement that revoked representation by the Colorado Division of Veterans Affairs. She also requested that the February 2015 Board remand be vacated and remanded and she should be awarded service connection for her obstructive sleep apnea and granted a TDIU. As these issues are currently on appeal, her motion to vacate is denied. FINDINGS OF FACT 1. Fibromyalgia was not shown in service, is not shown to have been incurred in or aggravated during ACDUTRA and is not shown to be due to or aggravated by the appellant's service-connected dysthymic disorder. 2. Obstructive sleep apnea was not shown in service, is not shown to have been incurred in or aggravated during ACDUTRA and is not shown to be due to or aggravated by the appellant's service-connected disabilities. 3. The appellant's dysthymic disorder has not been shown to cause total occupational and social impairment. 4. The evidence of record demonstrates that the appellant's service-connected disabilities render her unable to secure or follow a substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for a disability rating in excess of 70 percent for dysthymic disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2017). 4. The criteria for a TDIU rating are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and the appellant has not either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the appellant testified at a hearing before the Board in December 2014. The appellant was also provided VA examinations and the appellant has not objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order 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) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The appellant submitted her service-connection claims for fibromyalgia and obstructive sleep apnea in June 2011, which were denied by a September 2011 rating decision. The appellant asserts that her fibromyalgia and obstructive sleep apnea are due to her active service or alternatively are due to her service-connected dysthymic disorder. At her Board hearing, she further asserted that her fibromyalgia was due to her back injury in service and her obstructive sleep apnea was due to medications that she had been prescribed to treat her service-connected disabilities. Service connection for injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA) is warranted. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA is not defined at "active" service unless the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. The appellant's STRs do not show any complaints of, treatment for, or diagnosis of either fibromyalgia or obstructive sleep apnea during a period of ACDUTRA. There is no objective evidence of record that directly links the appellant's fibromyalgia or obstructive sleep apnea to her period of ACDUTRA. STRs do not show a diagnosis of fibromyalgia or obstructive sleep disorder rendered by a medical officer during a period of ACDUTRA. While the appellant began treatment for fibromyalgia in November 2001, the diagnosis was unable to be confirmed until March 2003, which is almost 17 years after her last period of ACDUTRA. She underwent a sleep study in March 2005, which did not show a diagnosis of obstructive sleep apnea. She was not diagnosed with obstructive sleep apnea until November 2011, which is 24 years after her last period of ACDUTRA. As such, service connection on a direct basis is not warranted. In August 2015, the appellant was afforded a VA examination for her fibromyalgia and obstructive sleep apnea. After reviewing the appellant's claims file, interviewing the appellant, and conducting a physical examination, the examiner opined that the appellant's fibromyalgia and obstructive sleep apnea were less likely than not due to or aggravated by a period of ACDUTRA or by a service-connected disability or medications prescribed for her service-connected disabilities. The examiner reported that there was no documentation of fibromyalgia symptoms during a period of ACDUTRA. The examiner reported that there was no relation between a back injury and fibromyalgia. The examiner reported that obstructive sleep apnea was an anatomic condition causing collapse and resultant obstruction of the upper airway during sleep. The examiner reported that obstructive sleep apnea was not caused by medication, was not a side effect of medication, and was not due to the appellant's dysthymic disorder. The examiner reported that the appellant's obstructive sleep apnea had been stable with treatment despite the medications she took for her service-connected disabilities. The examiner reported that obstructive sleep apnea was not caused or aggravated by dysthymic disorder or sacroiliitis as these conditions had completely different etiologies. After weighing all the evidence, the Board finds great probative value in the August 2015 VA examiner's opinions. These opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the appellant's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions in particular provided substantial reasoning and explanation as to why the appellant's fibromyalgia and obstructive sleep apnea were not due to a period of ACDUTRA and were not caused or aggravated by the appellant's service-connected disabilities or medications prescribed for the appellant's service-connected disabilities. The appellant has not submitted any competent evidence supporting her assertion that her fibromyalgia and obstructive sleep apnea were due to a period of ACDUTRA or proximately due to or the result of her service-connected disabilities or medications prescribed for her service-connected disabilities. Therefore, after weighing all the evidence, the Board finds great probative value in the August 2015 VA examiner's opinions. Consideration has been given to the appellant's assertion that her fibromyalgia and obstructive sleep apnea were due to a period of ACDUTRA or proximately due to or the result of her service-connected disabilities or medications prescribed for her service-connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, namely the etiology of the appellant's diagnosed fibromyalgia and obstructive sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Fibromyalgia and obstructive sleep apnea are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as sleep studies, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that appellant is competent to report perceived symptoms of her fibromyalgia and obstructive sleep apnea, to the extent they are identifiable by observation (symptoms such as pain and daytime fatigue), she has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that she received any special training or acquired any medical expertise in evaluating fibromyalgia, obstructive sleep apnea, psychiatric disorder, or musculoskeletal disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As described, the criteria for service connection for fibromyalgia and obstructive sleep apnea have not been met, and the appellant's claims are denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The appellant submitted her increased rating claim for her dysthymic disorder in June 2007. A November 2007 rating decision granted an increased rating of 50 percent effective June 14, 2007. A September 2015 rating decision granted an increased rating of 70 percent effective June 14, 2007. She asserts she is entitled to a higher rating. Under the General Rating Formula for Mental Disorders, a 70 percent evaluation is assigned when a veteran's mental disability causes 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 work like setting); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9433. A 100 percent rating is assigned when a veteran's mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the veteran's psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The appellant's treatment records do not establish total occupational and total social impairment. She maintains relationships with friends and family and family would accompany her to treatment visits. She attends church and continues to drive. Most recently in August 2014, the appellant was noted to be "delightful" and pleasant. In January 2015, she was pleasant, cooperative, and logical with a non-labile, mood congruent, well-related, and stable affect. In February 2015, her physician reported that her mental health symptoms were well-controlled. As described, the appellant has clearly experienced psychiatric symptomatology as a result of her dysthymic disorder. However, as described, the appellant's dysthymic disorder simply is not shown to cause total occupational impairment and total social impairment, as the appellant is clearly not totally socially impaired. Accordingly, the appellant is not entitled to a rating in excess of 70 percent for her dysthymic disorder. Entitlement to TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The appellant is service connected for dysthymic disorder, evaluated at 70 percent disabling effective June 14, 2007. In April 2013, the appellant's treating psychiatrist Dr. G.P. reported that she is unable to sustain gainful employment due to her dysthymic disorder and chronic pain. In July 2015, the appellant was afforded a VA examination for her dysthymic disorder. The examiner reported that the appellant's dysthymic disorder resulted in occupational and social impairment with deficiencies in most areas. At her February 2017 Board hearing, the appellant testified that she stopped working in 1997. The Board finds that overall, the evidence tends to show that the appellant would not be able to obtain or retain employment, as a result of the functional limitations caused by her service-connected disabilities. Accordingly, resolving doubt in the appellant's favor, a TDIU is granted. (CONTINUED ON NEXT PAGE) ORDER Service connection for fibromyalgia is denied. Service connection for a sleep disorder is denied. A rating in excess of 70 percent for service-connected dysthymic disorder is denied. A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs