Citation Nr: 1754426 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-33 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to September 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating action by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2016, and a transcript of the hearing is associated with his claims folder. At the hearing, the record was held open for an additional 30 days to permit the Veteran an opportunity to obtain and submit additional evidence, specifically vocational rehabilitation records, and he waived RO consideration of any additional evidence received. Vocational rehabilitation records have since been submitted. The Veteran requested that his case be advanced on the docket, in March 2012, based on financial hardship. The Board finds that good cause for advancing the case on the docket has been shown, and grants the motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran does not have a current fibromyalgia diagnosis. 2. The Veteran's service-connected disabilities -- bilateral fallen arches with hallux valgus, 30 percent; chronic sleep deprivation, 30 percent; left shoulder strain, 20 percent; chronic lumbar spine with degenerative disc disease; and dysuria; residual painful scarring status post gallbladder removal; residual scarring left knee; chronic right wrist strain; chronic left hip strain; deviated septum; 3rd digit hyperextension injury with 4th digit fracture; each 10 percent; and residuals status post gallbladder removal, noncompensable; for a combined rating of 90 percent -- do not preclude him from securing and following all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for fibromyalgia Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Veteran seeks service connection for fibromyalgia. Fibromyalgia was mentioned in medical records in service and again before the claim was filed in September 2010. However, there is no current diagnosis of fibromyalgia. To the contrary, the preponderance of the evidence indicates that the Veteran does not have a current diagnosis of fibromyalgia. This evidence includes the VA examination which was conducted for fibromyalgia in October 2010. At that time, the examiner examined the Veteran and noted that he was given a detailed physical examination and that he had no complaints of pain anywhere over his body on the examiner's palpation, except for over his left sacroiliac joint. Palpation and examination by the examiner did not reveal any areas which were painful or tender on examination. The examiner reported that the Veteran had no tender spots on examination. The Veteran had vague complaints of pain all over his body, but there was no specific area that was exquisitely tender. When the Veteran was specifically asked about areas of pain, he admitted to pain in the left sacroiliac joint primarily. The examiner indicated that no diagnosis of fibromyalgia was made that day. Instead, the examiner indicated that from the evaluation done that day, the Veteran does not meet criteria for a diagnosis of fibromyalgia. He did not have any tender points on examination. His complaints were generalized and vague and involving several joints. His pain was very vague and did not meet criteria for fibromyalgia type syndrome. A VA examiner in February 2010 diagnosed right hip trigger point pain consistent with prior diagnosis of fibromyalgia, but this was before the claim was filed and so it cannot be considered a current diagnosis, and it was not actually a diagnosis of fibromyalgia. In the absence of a current diagnosis of fibromyalgia, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). The Veteran has made a number of arguments, including in November 2013 and September 2016. He has challenged the validity of the VA examination, based on the examiner being a physician of geriatric medicine. However, the health care providers which VA chooses to perform examinations are presumed to be competent to perform the examinations they are ordered to perform, and that presumption has not been rebutted. The Veteran also challenges the validity of the diagnosis made on VA examination in October 2010. However, the Veteran is not competent to indicate whether the diagnosis made was valid. Medical expertise is required to challenge a health care provider's qualifications or the complex matter of a fibromyalgia diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2000). The Veteran has also challenged the October 2010 VA examination for other reasons, including that he was on medication that day, and not fully coherent, and that the examination was merely an interview, with no tests done to arrive at a proper diagnosis. However, the Veteran was actually examined that day, with tests being done, as reflected by information contained in the examination report and recited above, and there is no indication in the examination report of untoward effects of medication or that his being on medication or not would have any bearing on the diagnosis. The report, moreover, does not reflect that he was incoherent. The Board finds that the October 2010 VA examination is adequate for rating purposes and serves to permit the adjudication of the claim. Furthermore, arguments which the Veteran has made in his November 2013 substantive appeal have no merit. While he argued in November 2013 that other clinicians have diagnosed fibromyalgia, he admitted during his September 2016 hearing that no health care provider has rendered a diagnosis of fibromyalgia at any point since the claim was filed, and he was advised that this is necessary. The record has been reviewed thoroughly and no current diagnosis of fibromyalgia is found. Furthermore, whether or not the VA examiner in October 2010 believes in fibromyalgia (the Veteran asserts that she does not) is irrelevant. Instead, what is relevant, and probative, is that she examined the Veteran for it using its diagnostic criteria, found that he did not meet the criteria for a diagnosis of it, and explained her reasoning. The Veteran stated in September 2016 that he is on gabapentin for fibromyalgia. That, however, does not prove that he has it. Diagnostic criteria for it must be met, and they are not met currently in this case. TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is the established policy that Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 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 in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: bilateral fallen arches with hallux valgus, 30 percent; chronic sleep deprivation, 30 percent; left shoulder strain, 20 percent; chronic lumbar spine with degenerative disc disease; and dysuria; residual painful scarring status post gallbladder removal; residual scarring left knee; chronic right wrist strain; chronic left hip strain; deviated septum; 3rd digit hyperextension injury with 4th digit fracture; each 10 percent; and residuals status post gallbladder removal, noncompensable; for a combined rating of 90 percent. When there is more than one service-connected disability, one must be ratable as at least 40 percent disabling and the combined rating must be 70 percent or higher in order to consider TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran meets the criteria for schedular consideration because under 38 C.F.R. § 4.16(a), disabilities of a single body system, i.e., orthopedic, are considered as one disability. However, the preponderance of the evidence including his VA Form 21-8940, his vocational rehabilitation records, and the current VA examination reports of record indicates that the Veteran's service-connected disabilities do not preclude him from securing or following all forms of substantially gainful employment. The evidence here shows that the Veteran has 2 years of college education. His vocational rehabilitation records show that he was pursuing a bachelor's of arts degree in management and leadership as late as July 2013, and had been mostly in good standing academically, although there were a small number of academic warnings issued. He worked at Radio Shack 20-30 hours per week from September 2007 to February 2008, and at a computer company in Germany 30-40 hours per week from March 2005 to October 2005, earning up to $3600 per month while there. He was a sales associate and also a technician at Radio Shack and was working there while pursuing higher education. Additionally, he had GPAs of up to 3.67 while carrying a full time college credit load during the rating period, and has been a records clerk. At one point, he installed and serviced HVAC equipment; and at another, he was a department store detective using surveillance equipment, making over $3000 monthly, and left that job in hopes of better pay. He reports that he quit working for Radio Shack. He has extensive experience with computers and has been a computer technician. He has owned 2 businesses. One was for contracting, sales, support, and design of specialized electrical systems. In the other, his position was chief financial officer and co-owner. In that occupation, he did controlling, taxes, and general financial management, as well as contracting, sales, business and personnel management; and inventory and logistics for supplies. During service, he was a motor transport operator as well as an infantryman. The Veteran has asserted that his disabilities preclude him from substantially gainful employment, and his statements in support of this, including reported symptoms, such as those he made in November 2013, have been considered. Among his assertions at the time were that, often times, he is unable to walk for several days, and is physically unable to attend to normal, even light sedentary work due to service-connected disabilities. However, he has a very valuable, diverse, and extensive employment history, much of it fairly accomplished white collar sedentary type of work, and at least 2 years of college education, qualifying him for many forms of substantially gainful light or sedentary employment during the great majority of the times when his service-connected disabilities are not too disabling. He has been a full time student as well, during the course of the claim, succeeding satisfactorily to very well academically most of the time, and, according to a July 2010 VA medical record, is active in childcare and was encouraged to continue to be. These facts as well work against a finding of TDIU. The Veteran's disabilities do not preclude him from securing and maintaining all forms of substantially gainful employment, as reflected, for instance, by the October 2010 VA examiner's statement that he would not expect him to miss any time from work as a full time student or home life due to his right hand disability; and the February 2010 VA examiner's opinion that the Veteran's orthopedic conditions would not preclude him from light to sedentary employment. While his service-connected disabilities may interfere with employment as outlined by the limitations noted on examination, and which, according to the Veteran, at times prevent it, the record shows that his service-connected disabilities, either alone or in combination with each other, do not preclude him from retaining and maintaining all forms of substantially gainful employment. While the Veteran has argued for a TDIU, he admitted in December 2009 that he is often engaged and a hard worker, and the preponderance of the evidence indicates that a TDIU is not warranted. While his representative argued during his September 2016 hearing that employers will not hire him because he has to take off large periods of time, this overlooks the fact that the Veteran has had substantially gainful self-employment in the past. The preponderance of the evidence indicates that all forms of light and sedentary employment of a substantially gainful nature are not precluded. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Although the Board regrets that its decisions could not be more favorable to the Veteran, we would like to thank him for all of his service to his country. ORDER Service connection for fibromyalgia is denied. A TDIU is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs