Citation Nr: 18151644 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-26 569 DATE: November 19, 2018 ORDER Entitlement to service connection for fibromyalgia is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bowel disability, to include irritable bowel syndrome (IBS), is remanded. Entitlement to a disability productive of a swollen left elbow, to include gout, is remanded. Entitlement to service connection for a disability productive of left leg numbness is remanded. Entitlement to service connection for a disability productive of right leg numbness is remanded. Entitlement to an initial rating higher than 20 percent for right shoulder acromioclavicular joint separation is remanded. Entitlement to a rating higher than 20 percent for degenerative disc disease of the cervical spine status post fusion C6-7 is remanded. Entitlement to a rating higher than 10 percent for right ankle os trigonum is remanded. Entitlement to a rating higher than 50 percent for sleep apnea is remanded. Entitlement to a rating higher than 10 percent for carpal tunnel syndrome status post-surgery, left hand is remanded. Entitlement to a rating higher than 10 percent for carpal tunnel syndrome status post-surgery, right hand is remanded. Entitlement to a rating higher than 50 percent for depressive disorder is remanded. Entitlement to an effective date earlier than January 10, 2011, for service connection for carpal tunnel syndrome status post-surgery, left hand is remanded. Entitlement to an effective date earlier than November 18, 2012, for service connection for right shoulder acromioclavicular joint separation is remanded. Entitlement to an effective date earlier than January 10, 2011 for service connection for carpal tunnel syndrome status post-surgery, right hand is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of fibromyalgia that is presumed to have been caused by his service in the Southwest Asia theater of operations. 2. The most probative evidence of record demonstrates that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to July 2005, August 2005 to February 2008, and January 2009 to January 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2011 (carpal tunnel), September 2013 (cervical spine, depression, right shoulder, right ankle, sleep apnea, rheumatoid arthritis, low back, left elbow swelling, right and left leg numbness), and December 2014 (fibromyalgia, irritable bowel syndrome, TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that a March 2015 notice of disagreement (NOD) to the September 2013 rating decision disagreed with effective dates assigned as to the cervical spine, sleep apnea, and right ankle disabilities. The September 2013 rating decision did not assign any effective dates related to these disabilities, meaning that an appeal regarding effective dates could not be found even if the March 2015 NOD was timely, which it was not. To the extent that the March 2015 untimely NOD might be construed as containing unadjudicated freestanding claims for earlier effective dates for service connection for the cervical spine, sleep apnea, and right ankle disabilities, the Board notes that freestanding claims seeking to revise an effective date established in a prior final determination are legally invalid; as a matter of law, they cannot possibly result in the sought revision of the effective dates. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). There is no benefit to the Veteran in expansively reading the March 2015 untimely NOD to create legally invalid claims that would delay adjudication of the claims on appeal, and the Board thus declines to do so. 1. Entitlement to service connection for fibromyalgia The Veteran contends that he has fibromyalgia, which was incurred in service or is due to service in the Southwest Asia theater of operations. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that VA determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(C). The Board concludes that, resolving reasonable doubt in the Veteran’s favor, the Veteran has a current diagnosis of fibromyalgia that is presumed to have been caused by service in the Southwest Asia theater of operations. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.317. The Veteran’s DD214 form reflects service in Kuwait from January 6, 2003 to December 23, 2004. This service meets the criteria for service in the Southwest Asia theater of operations, and thus indicates that this Veteran is a Persian Gulf War veteran. 38 C.F.R. §3.317(e). The Veteran complained of generally feeling weak, muscle ache, and swollen, stiff, or painful joints during service in July 2008. He continued to report joint pain in October 2009 and April 2010. The Veteran sought treatment for the joint pain from a private physician, and was treated for possible seronegative rheumatoid arthritis in July 2012. However, in November 2012, the private rheumatologist noted that x-rays did not show changes of rheumatoid arthritis, and lack of improvement with the maximum dose of medication. The physician began to doubt the diagnosis of rheumatoid arthritis, and wrote that the Veteran possibly had fibromyalgia syndrome. By January 2013, the private rheumatologist was comfortable recording an assessment of fibromyalgia, and noted that the Veteran’s new medication was having good results. The Veteran continued to be treated for fibromyalgia, including by VA physicians. The June 2014 VA examination found that the Veteran does not currently have any findings, signs or symptoms attributable to fibromyalgia, noting that physical exam reveals several non-tender trigger points, although he did have tenderness on the bilateral supraspinatus muscles. The examiner concluded that there was no clinical evidence of fibromyalgia, and that the Veteran was diagnosed with fibromyalgia syndrome based on his subjected report of “history of fibromyalgia” with reported improvement of hand pains and generalized stiffness of the joints with Cymbalta and Tramadol. The examiner stated that these medications are used to treat any kind of neuropathic or moderate to severe pain, and are not specific for fibromyalgia. The examiner also asserted that there is no objective evidence of tenderness of at least 11 trigger points per examination today, and tenderness on palpation of at least 11 sites is a diagnostic standard for fibromyalgia. The June 2014 examiner incorrectly states that the fibromyalgia diagnosis was based solely on the Veteran’s subjective report of his medical history, and does not discuss the private treatment records that contain the initial diagnosis of fibromyalgia. For this reason, the examination is of limited probative value. The Board notes that the fibromyalgia diagnosis was provided by the Veteran’s treating physician after ruling out rheumatoid arthritis. Although the private treatment record does not discuss the 11 trigger point test referenced by the examiner, the private rheumatologist arrived at his diagnosis based upon objective evidence, including x-rays and response, or lack thereof, to medication, not merely the subjective medical history provided by the Veteran. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran does have a current fibromyalgia diagnosis. The record indicates that the Veteran takes medication to treat his fibromyalgia symptoms, which means that the Veteran’s fibromyalgia requires continuous medication, and thus has manifested to at least a compensable degree. 38 C.F.R. § 4.71a, Diagnostic Code 5025. As the record reflects a diagnosis of fibromyalgia manifested to at least a compensable degree prior to December 31, 2021, presumptive service connection is warranted for this Persian Gulf Veteran. 38 C.F.R. § 3.317. The Veteran’s claim for service connection for fibromyalgia is thus granted. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment consistent with his occupational and educational background. A TDIU rating 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 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. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for sleep apnea at 50 percent, depressive disorder at 50 percent, degenerative disc disease of the cervical spine at 20 percent, right shoulder acromioclavicular joint separation at 20 percent, right ankle os trigonum at 10 percent, carpal tunnel syndrome of the right hand at 10 percent, and carpal tunnel syndrome of the left hand at 10 percent, for a combined evaluation of 90 percent. Although the rating assigned to these disabilities are remanded below, and the Veteran has not yet been assigned a rating for his service-connected fibromyalgia, the Board notes that the Veteran currently meets the schedular criteria for a TDIU regardless of the result of the remanded claims or the rating assigned for fibromyalgia. The question before the Board is whether the Veteran is unable to obtain or maintain substantially gainful employment consistent with his education and previous work experience because of his service-connected disabilities. The Board finds that he is unable to do so. A June 2014 VA examination found that light duty and sedentary activity were not completely precluded by the Veteran’s service-connected bilateral carpal tunnel syndrome because the strength of his hands was normal and his manual dexterity was good, although he would be limited when working with paper or small objects due to numbness of his hands. A November 2014 examination found that the carpal tunnel syndrome should not preclude light duty or sedentary employment, but strenuous physical employment was limited due to some limitation with range of motion at both wrists. The June 2014 psychiatric examination found that the Veteran’s depressive disorder was not severe enough to result in occupational impairment, and noted that the Veteran had reported that he stopped working because of his long commute, and denied self-harm or harm to others. A January 2017 psychiatric examination found that the Veteran’s depressive symptoms can result in difficulty concentrating on work tasks and affect task processing speed in the workplace. A June 2014 examination determined that the Veteran’s right ankle disability should not preclude employment or occupational duties with respect to light activities, and a desk job with limited walking and standing would be reasonable for this Veteran. A November 2014 examination reiterated this statement, opining that the right ankle disability should not preclude light duty or sedentary employment, but that strenuous physical employment is limited. June 2014 and November 2014 examinations found that the Veteran’s cervical spine disability did not completely preclude light duty and sedentary activity, although strenuous physical employment was limited. The June 2014 and January 2017 examinations found that sleep apnea had no impact on the Veteran’s ability to work, and the November 2014 examination found it should not preclude light duty or sedentary employment. A November 2014 examination found that the right shoulder disability should not preclude light duty or sedentary employment, although he would be unable to do heavy lifting/carrying or work overhead. In August 2015, the Social Security Administration (SSA) found that the Veteran was disabled because of disorders of the back and personality disorders. This determination has limited probative value at this time because the Veteran has not been service-connected for a low back disability. However, the December 2016 private vocational opinion discussing only service-connected disabilities is highly probative. The vocational examiner found that the Veteran’s significant physical and mental limitations preclude any work, and noted the Veteran’s inability to hold his head in a fixed position for an extended period due to service-connected cervical spine disability, which is required for almost all work, per the vocational specialist, including sedentary work such as looking at a computer screen or cash register. The vocational specialist also noted the persistent daytime hypersomnolence, which is a symptom of service-connected sleep apnea, which would make the Veteran a danger to himself or others if operating machines, automobiles, or other equipment. The vocational specialist pointed to pain on movement, easy fatigability, and lack of ability to concentrate as symptoms that can be severe enough to preclude work. The vocational specialist also opined that the Veteran’s problems with standing, sitting, and/or weight bearing restrict the Veteran to work below the competitive threshold, and discussed the Veteran’s difficulties with concentration and the need to isolate himself from others. The specialist concluded that the Veteran has tried to continue working and to attain more skills by attending college, but has been unsuccessful because of his service-related disabilities, such that there is no work at any exertional level that the Veteran could perform. The Board finds that the December 2016 private vocational opinion, which is the only opinion that discusses all of the Veteran’s service-connected disabilities rather than the symptoms of each disability in isolation, has at least as much probative value as the VA examinations finding that no individual service-connected disability precludes light or sedentary employment. Moreover, the Board notes that a June 2015 SSA psychiatric examination found marked disability in the Veteran’s ability to remember locations and work-like procedures; understand and remember very short and simple instructions; understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended period; work in coordination with or in proximity to others without being distracted by them; accept instructions and respond appropriately to criticism from supervisors; respond appropriately to changes in work setting; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independent of others. This examination is consistent with the vocational opinion finding the Veteran to be unemployable. The Board finds that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his occupational and educational background, including sedentary employment, because of his service-connected disabilities. The Veteran’s claim for entitlement to a TDIU is thus granted. REASONS FOR REMAND 1. Entitlement to service connection for rheumatoid arthritis is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. In a February 2013 statement, the Veteran reported that he was treated at a VA Medical Center in Atlanta, Georgia, and records from this VA medical center are not associated with the claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In August and February 2013 statements, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service connection for a low back disability is remanded. The November 2012 general examination noted a lower spine disability that the Veteran reported had its onset during active duty, but did not provide an etiological opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has opined whether the Veteran’s current low back disability was caused by service, to include using crutches in service. In a February 2013 authorization, August 2013 correspondence, and an October 2012 VA treatment note, the Veteran identified relevant outstanding private treatment records, including records related to the worker’s compensation claim in which the Veteran states he was denied because his low back disability is an old injury. A remand is required to allow VA to obtain authorization and request these records. 3. Entitlement to service connection for a urinary or bowel disability, to include irritable bowel syndrome (IBS) is remanded. The June 2014 examination found that there was no objective evidence of irritable bowel syndrome based on the review of the medical record, medical literature, and clinical experience. Specifically, the examiner found that the medical record is silent for any stool work-up, and organic cause for subjective report of diarrhea and constipation has not been ruled out. If additional testing such as a stool work-up is necessary to determine the cause of the Veteran’s bowel complaints, then such a test should be performed. Upon remand, a new examination should be obtained that discusses the etiology of any disability productive of the Veteran’s urinary and bowel complaints, including IBS or another organic cause. 4. Entitlement to a disability productive of a left elbow swelling, to include gout, is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. Additionally, the November 2012 examination found no objective evidence of a nodule on the left elbow. A March 2012 VA treatment note discussed a left elbow moderate synovial bursae swelling on the mid distal elbow, and concluded that the Veteran’s complaints were consistent with gout. The examination did not discuss whether this swelling or node on the left elbow might have been a symptom of gout. Upon remand, an examination should be conducted to determine whether the Veteran has a current diagnosis of gout, and if so, whether it was caused by service. Additionally, the Veteran has argued that the left elbow swelling is a symptom of carpal tunnel syndrome, and this possibility should also be discussed by the examiner 5. Entitlement to service connection for a disability productive of left leg numbness, to include as secondary to a low back disability, is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. Additionally, The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s numbness of the left or right leg was incurred in or is due to service, to include a September 2008 VA treatment note finding leg cramps/stiffness that the Veteran reported noticing for the past 1-2 years, which corresponds to his active service. As this matter is being remanded for an exam, the examiner should also consider whether the numbness is secondary to the low back disability that is also on appeal. 6. Entitlement to service connection for a disability productive of right leg numbness is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. Additionally, The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s numbness of the left or right leg was incurred in or is due to service, to include a September 2008 VA treatment note finding leg cramps/stiffness that the Veteran reported noticing for the past 1-2 years, which corresponds to his active service. As this matter is being remanded for an exam, the examiner should also consider whether the numbness is secondary to the low back disability that is also on appeal. 7. Entitlement to an initial rating higher than 20 percent for right shoulder acromioclavicular joint separation is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. 8. Entitlement to a rating higher than 20 percent for degenerative disc disease of the cervical spine status post fusion C6-7 is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. 9. Entitlement to a rating higher than 10 percent for right ankle os trigonum is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. 10. Entitlement to a rating higher than 50 percent for sleep apnea is remanded. In a January 2017 VA treatment record, the Veteran identified relevant outstanding private treatment records by stating that he had sinus surgery for sleep apnea in 1989 or 1990. In a September 2008 treatment note he indicated that this surgery occurred in 2003, and then was performed again later. A remand is required to allow VA to obtain authorization and request these records. 11. Entitlement to a rating higher than 10 percent for carpal tunnel syndrome status post-surgery, left hand is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. 12. Entitlement to a rating higher than 10 percent for carpal tunnel syndrome status post-surgery, right hand is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above. 13. Entitlement to a rating higher than 50 percent for depressive disorder is remanded. This claim must also be remanded to obtain the outstanding treatment records discussed above, including treatment at the T. Mental Health Clinic referenced in the August 2013 claim. 14. Entitlement to an effective date earlier than January 10, 2011, for service connection for carpal tunnel syndrome status post-surgery, left hand is remanded. This claim must be remanded to obtain the outstanding VA treatment records discussed above to determine whether any VA record could be construed as an informal claim for service connection for carpal tunnel syndrome of the left hand. 15. Entitlement to an effective date earlier than November 18, 2012, for service connection for right shoulder acromioclavicular joint separation is remanded. This claim must be remanded to obtain the outstanding VA treatment records discussed above to determine whether any VA record could be construed as an informal claim for service connection for a right shoulder disability. 16. Entitlement to an effective date earlier than January 10, 2011 for service connection for carpal tunnel syndrome status post-surgery, right hand is remanded. This claim must be remanded to obtain the outstanding VA treatment records discussed above to determine whether any VA record could be construed as an informal claim for service connection for carpal tunnel syndrome of the right hand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the VA Medical Center in Atlanta, as well as VA treatment records from the North Florida/South Georgia Veterans Health System for the period from May 10, 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. J.C., chiropractor L.N., Dr. F.L., as identified in August 2013 correspondence; T. Mental Health Clinic, as identified in the August 2013 claim; P. Chiropractic Clinic and Stand-up MRI of C.F.T. as identified by February 2013 statements, and Dr. C. or any other facility that provided surgical treatment for the Veteran’s sleep apnea as discussed in September 2008 and January 2017 VA treatment records. Make two requests for the authorized records from any treatment provider identified by the Veteran unless it is clear after the first request that a second request would be futile. 3. Ask the Veteran to complete a VA Form 21-4142 for any department or organization from which he applied for worker’s compensation benefits after injuring his low back. Make two requests for the authorized records from any department or organization so identified, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including several minor falls while walking with crunches and a major fall, as discussed in a January 2013 statement. The examiner should also provide an opinion as to whether it at least as likely as not (50 percent or greater probability) any low back disability: (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Any opinion offered must be supported by a complete rationale. The examiner is advised that the Veteran’s service treatment records (STRs) indicate reports of recurrent back pain in June 2005, July 2008, October 2009, and July 2011. In an October 2012 VA treatment note, the Veteran reported low back pain that was exacerbated after work injury but was told by worker’s compensation that his back was a preexisting condition. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability productive of a bowel disorder, to include irritable bowel syndrome (IBS). The examiner must opine whether any bowel disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including exposure to environmental hazards while in the Southwest Asia theater of operations. The examiner is advised that he or she should perform any testing that is necessary to determine the disability causing the Veteran’s bowel complaints, including any necessary stool workup as referenced in the June 2014 examination. If the examiner determines that the Veteran does not have a current diagnosis of IBS, he or she should discuss the etiology of the disability that causes the Veteran’s bowel symptoms. The examiner is advised that a December 2013 VA treatment note discussed the possibility of a neurologic problem causing a neurogenic bladder. Any opinion offered must be supported by a complete rationale. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of gout or any other disability productive of swelling or a node on the left elbow, including whether said swelling or node was a manifestation of carpal tunnel syndrome. The examiner must opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including using crutches in service, as noted in a January 2013 statement, or exposure to environmental hazards related to service in Southwest Asia. (b.) Whether it is at least as likely as not (50 percent or greater probability) related to or aggravated beyond its natural progression by service-connected carpal tunnel syndrome, as indicated by the Veteran’s September 2012 statement. Each opinion offered must be supported by a complete rationale. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability productive of left or right leg numbness. The examiner must opine: (a.) Whether it was at least as likely as not incurred in or related to an in-service injury, event, or disease, including discussion of a September 2008 treatment note in which the Veteran reports cramps/stiffness of the bilateral calves for the past 1-2 years, which corresponds to the Veteran’s active service. (b.) Whether the numbness of the Veteran’s bilateral legs is at least as likely as not (50 percent or greater probability) related to or aggravated beyond its natural progression by the Veteran’s lumbar spine disability. (Continued on the next page)   Each opinion offered must be supported by a complete rationale. 8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel