Citation Nr: 18155443 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-61 416 DATE: 1. Entitlement to an effective date prior to October 28, 2003 for the grant of service connection for fibromyalgia. 2. Entitlement to a disability rating in excess of 40 percent, on an extraschedular basis, for fibromyalgia. 3. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, variously diagnosed as depression, anxiety and panic disorder, from February 14, 2003 to July 25, 2012, and in excess of 50 percent from July 26, 2012 forward. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to July 26, 2012. December 4, 2018 ORDER Entitlement to an effective date of January 22, 2002, but no earlier, for the grant of service connection for fibromyalgia is granted.   REMANDED Entitlement to a disability rating in excess of 40 percent, on an extraschedular basis, for fibromyalgia, is remanded. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder from February 14, 2003 to July 25, 2012, and in excess of 50 percent from July 26, 2012 forward, is remanded. Entitlement to a TDIU prior to July 26, 2012, is remanded. FINDINGS OF FACT 1. On August 9, 2001, VA received a claim from the Veteran for service connection for a cervical vertebrae injury and a right shoulder injury. 2. The RO declined to reopen service connection for a cervical vertebrae injury and a right shoulder injury in an unappealed December 2001 rating decision. 3. On January 22, 2002, VA received an informal claim to reopen service connection for neck and right upper extremity conditions. 4. In a February 2003 rating decision, the RO reopened and denied service connection for these matters on the merits. 5. A timely Notice of Disagreement (NOD) was filed in February 2003. 6. In a July 2012 Board decision, the Board recharacterized these issues as entitlement to service connection for fibromyalgia syndrome. 7. In a September 2012 rating decision, service connection for fibromyalgia was granted pursuant to the Board’s July 2012 decision. The RO assigned an effective date of October 28, 2003. 8. Two private medical opinions provide competent evidence that the Veteran’s fibromyalgia dates to at least 2001. CONCLUSION OF LAW The criteria for an effective date of January 22, 2002, and no earlier, for the grant of service connection for fibromyalgia have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1979 to August 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2003, August 2003, September 2004, September 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an effective date prior to October 28, 2003 for the grant of service connection for fibromyalgia. The Veteran contends that she is entitled to an effective date of August 9, 2001 for the grant of service connection for fibromyalgia. Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2017). In cases where service connection was granted on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). On October 21, 1985, VA received a claim for service connection for residuals of an accident, described as head, shoulder and spine. The RO denied service connection in an unappealed December 1985 rating decision. On August 9, 2001, VA received a claim from the Veteran for service connection for a cervical vertebrae injury and a right shoulder injury. The RO declined to reopen these matters in an unappealed December 2001 rating decision. On January 22, 2002, VA received a statement in support of claim from the Veteran which the RO interpreted as a claim to reopen service connection for neck and right upper extremity conditions. The RO reopened and denied service connection for these matters in a January 2003 rating decision. In February 2003, VA received a statement in support of claim in which the Veteran noted a disagreement with the January 2003 rating decision. An October 8, 2003 VA treatment record notes the Veteran reported a generalized fatigue, diffuse musculoskeletal pains, and pain in the shoulder blades, hips, knees and chest wall area. Additionally, the Veteran reported fluctuations of her emotions and insomnia. Upon examination, superficial tenderness all through the chest walls and multiple musculoskeletal tender points were noted. Rule out fibromyalgia was noted. In an August 2003 rating decision, VA declined to reopen a claim for service connection for residuals of a head injury, noting a December 1985 rating decision denying service connection for head, shoulder and spine injury residuals. On October 28, 2003, VA received a letter from the Veteran stating that her condition had progressed and that she had been diagnosed with fibromyalgia on October 8, 2003. The Board notes that this letter was the first time the Veteran had brought up the issue of fibromyalgia. A December 17, 2003 VA treatment record notes the Veteran "is extremely tender to palpation with many bil[ateral] tender points consistent with fibromyalgia." A January 13, 2004 VA treatment record notes the Veteran was recently diagnosed with fibromyalgia. The provider expressed “relief” with the diagnosis “as it explains or makes sense of a number of [the Veteran’s] physical [symptoms].” A February 4, 2004 VA treatment record notes the Veteran was referred for to confirm a diagnosis of fibromyalgia. The Veteran reported experiencing diffuse pain beginning in 1999 which has become progressively worse. The Veteran described feeling pain and stiffness when rising in the morning that initially improves but then worsens as the day progresses. The Veteran stated that she is never without pain, has a difficult time falling asleep due to this and for the past year has experienced sleep disruptions. The Veteran further reported memory problems, such as forgetting to take medications and forgetting what she was going to say. Upon examination, diffuse tender points, including the trapezius, chest, elbows, lateral hips and knees were noted. No evidence of synovitis or joint swelling was noted. It was further noted that her clinical history and previous normal laboratories are consistent with a myofacial pain syndrome and that her disrupted sleep supports fibromyalgia. In a November 2009 decision, the Board, finding new and material evidence had been received, reopened the Veteran’s claim of service connection. In an April 2012 independent medical opinion, Dr. D. M. agreed with the diagnosis of fibromyalgia syndrome, noting that “there is a clear progression of dysfunction dating from the head injury” sustained in service. In a July 2012 Board decision, the Board noted that in its November 2009 decision, it had reopened the previously denied claims for service connection for cervical spine, right shoulder and arm disabilities and had recharacterized the issue as entitlement to service connection for fibromyalgia syndrome (originally claimed as a disability of multiple joints and headaches), secondary to head trauma. In a September 2012 rating decision, service connection for fibromyalgia was granted pursuant to the Board’s July 2012 decision. The Ro assigned an effective date of October 28, 2003, the date VA received the Veteran’s letter regarding this disability. In an August 2018 private medical opinion, Dr. P. C., stated that he reviewed the relevant medical records and lay statements in this matter. He noted that the Veteran “suffered with symptoms of pain for many years before her official diagnosis” of fibromyalgia, not a July 2001 treatment record in which the Veteran reported intermittent numbness and functional impairment on her right side. He then referenced a September 2001 neurological treatment record which noted the Veteran has a “long history of right neck and head pain” which, at times, radiates to her right arm. He then noted that EMG testing, blood testing and even Lyme disease testing were all unremarkable during the years leading up to her diagnosis of fibromyalgia, further noting that it is “underdiagnosed” and that delays in diagnosis are common. The doctor concluded that “[i]t is clear from [his] review of the medical records that [the Veteran’s] symptoms were indicative of a fibromyalgia diagnosis since at least 2001 if not earlier. "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. The Board must determine when a service-connected disability manifested itself under the all of the "facts found," including the medical opinions in question, and assign an effective date based on that evidence. See, McGrath v. Gober, 14 Vet. App. 28, 35 -36 (2000). "[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Here, the Board finds that the April 2012 independent medical opinion of Dr. D. M. who found that “there is a clear progression of dysfunction dating from the head injury” sustained in service, and the August 2018 private medical opinion of Dr. P. C. who cited medical records showing symptoms of fibromyalgia to at least 2001 provide ample evidence, with very-well formulated rationales, that the Veteran’s fibromyalgia pre-dated her official diagnosis, at least to 2001. As noted above, however, where compensation is awarded on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. In light of the finality of the December 2001 rating decision, the Board cannot assign an effective date earlier than January 22, 2002, on which VA received the Veteran’s claim to reopen service connection. The Board finds that the competent medical evidence is at least in equipoise as to whether the Veteran’s fibromyalgia pre-existed the date of its formal diagnosis, at least to 2001. The benefit of the doubt is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). However, as noted above, where compensation is awarded on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). In light of the finality of the December 2001 rating decision, the Board finds that an effective date of January 22, 2002, and no earlier, for the grant of service connection for fibromyalgia is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent, on an extraschedular basis, for fibromyalgia is remanded. The Board notes that there are numerous gaps in VA treatment records for the years 2003 to the present. Furthermore, there are mentions of vocation rehabilitation in the claims file, but no such records have been associated with the claims file. As these records may have a significant impact on the outcome of these claim, a remand is required to obtain them. 2. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder from February 14, 2003 to July 25, 2012, and in excess of 50 percent from July 26, 2012 forward, is remanded. The Board notes that there are numerous gaps in VA treatment records for the years 2003 to the present. Furthermore, there are mentions of vocation rehabilitation in the claims file, but no such records have been associated with the claims file. As these records may have a significant impact on the outcome of these claim, a remand is required to obtain them. 3. Entitlement to a TDIU prior to July 26, 2012, is remanded. Finally, because a decision on the remanded issues of fibromyalgia and an acquired psychiatric disorder could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2003 the Present. 2. Obtain any VA records pertaining to vocational rehabilitation for the Veteran from 2002 to the present. Document all requests for information as well as all responses in the claims file. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel