Citation Nr: 18148875
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 14-32 035A
DATE:	November 8, 2018
ORDER
An initial disability rating in excess of 10 percent for fibromyalgia is denied.

 
VETERAN’S CONTENTIONS
The Veteran contends that the initial rating assigned to his fibromyalgia, which was previously service-connected, did not adequately encompass the severity of his disability.
FINDINGS OF FACT
Service connection for fibromyalgia was severed effective September 1, 2014.   
CONCLUSION OF LAW
The criteria for an initial disability rating in excess of 10 percent for fibromyalgia are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5025.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This matter is on appeal from a July 2013 rating decision.
As indicated above, the issue currently before the Board is an increased initial rating for fibromyalgia.  In August 2013, less than 1 month after granting service connection, the RO proposed severance of service connection on the basis of clear and unmistakable error.  In June 2014, the RO issued a rating decision severing service connection, effective September 1, 2014.  Approximately one month later, in July 2014, the RO issued a statement of the case (SOC) regarding the propriety of the rating for fibromyalgia from February 22, 2012 to September 1, 2014.  Following the issuance of the SOC as to the rating of fibromyalgia, the Veteran filed a substantive appeal (VA Form 9) in September 2014.  In his substantive appeal, the Veteran also stated that he disagreed with the decision to sever service connection.  
At the time of the September 2014 substantive appeal as to the issue of an increased rating, the RO had not yet issued an SOC regarding the propriety of severance.  An SOC regarding severance was issued in May 2017.  Neither the Veteran nor his representative submitted a timely VA Form 9 as to severance.  As the Veteran did not submit a VA Form 9 regarding the issue of severance within 60 days following the May 2017 SOC, the issue concerning the propriety of the severance of service connection is not before the Board.  See 38 C.F.R. § 20.302.
Increased Rating
In this case, a retroactive increase in the disability rating for the Veteran’s fibromyalgia is precluded as a matter of law.  
Generally, ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  Generally, the degrees of disability specified 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.  38 C.F.R. § 4.1.

However, a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.  38 C.F.R. § 3.400(o)(1).
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Here, service connection for fibromyalgia has been severed.  Although the Veteran initially disputed the propriety of that severance, he did not perfect his appeal of that issue.  Consequently, service connection remains severed at present.  As such, a retroactive increase in the disability rating cannot be assigned.
 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N.S. Pettine, Associate Counsel