Citation Nr: 18157242 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-01 267 DATE: December 13, 2018 ORDER Restoration of the 40 percent disability rating for fibromyalgia as of the date of reduction, October 7, 1996, is granted, subject to the laws and regulations governing the payment of monetary benefits. Effective August 3, 2005, entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to an effective date earlier than August 3, 2005, for the award of TDIU, including on an extraschedular basis is remanded. FINDINGS OF FACT 1. A May 2007 rating decision reduced the rating assigned for the Veteran’s fibromyalgia with fatigue from 40 percent to 20 percent, effective October 7, 1996; the overall evidence of record at that time did not show sustained improvement to the extent of demonstrating that the Veteran’s fibromyalgia had improved. 2. The Veteran met the schedular criteria for a TDIU on August 3, 2005 with a combined evaluation of 70 percent for her service-connected disabilities, and resolving reasonable doubt in the Veteran’s favor, the Board has determined her service-connected disabilities prevent her from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The decision to reduce the rating for the Veteran’s fibromyalgia with fatigue from 40 percent to 20 percent, effective October 7, 1996, was not proper; restoration of a 40 percent rating is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344(c), 4.7, 4.71a, Diagnostic Codes 5025 (2018). 2. The criteria for assignment of a TDIU are met as of August 3, 2005. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.340, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to October 1990 and from February 1991 to October 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2007 and November 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue regarding the Veteran’s fibromyalgia rating was initially characterized as entitlement to an earlier effective date. However, upon review of the record, the Board has recharacterized the issue as propriety of the rating reduction for fibromyalgia in the May 2007 rating decision from 40 percent to 20 percent effective October 7, 1996. See Furthermore, as indicated in a September 2014 Board decision, the Veteran has raised a claim of entitlement to an extra-schedular rating for her fibromyalgia, so the Board is again referring this claim to the AOJ. The Board also notes that in an April 2011 notice of disagreement, the Veteran raised the claim of entitlement to service connection for chronic fatigue syndrome, so the Board also is referring this claim to the AOJ. Propriety of Rating Reduction Initially, it is noted that where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(c). Here, the May 2007 rating action separated the initially combined evaluation for the service-connected disorder of fibromyalgia with fatigue (previously rated as muscle/joint/upper back pain with fatigue and sleep disorder) into two separate disabilities, fibromyalgia and sleep apnea. In the May 2007 rating decision, the RO assigned a 30 percent rating for the sleep apnea, effective October 7, 1996; and a 50 percent rating from March 7, 2007. The RO then reduced the evaluation for fibromyalgia to a 20 percent rating effective October 7, 1996. The RO accomplished this in a single rating decision. In other words, the reduction in this case did not actually result in a reduction of compensation payments currently being made, as the Veteran continued to receive the same 40 percent combined evaluation she relied on before the reduction and then received a greater amount of compensation payments from March 7, 2007. In VAOPGCPREC 71-91, VA’s Office of General Counsel held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable. Rather, it is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. In a line of cases addressing staged ratings, the U.S. Court of Appeals for Veterans Claims (Court) and U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that where ratings are changed in a single decision that does not effectuate an actual decrease in the compensation the Veteran receives each month, there is no reduction. In O’Connell v. Nicolson, 21 Vet. App. 89 (2007) the Court examined a claim in which the Board, in assigning staged ratings for a disorder, simultaneously increased the base rating assigned by the RO for a period of time, and then decreased it. The Court explained that there was no diminished expectation with which to be concerned, and no reduction in benefits to contest. Id. at 93. The Federal Circuit agreed with this reasoning in Reizenstein v. Shinseki, 583 F.3d 1331, 1337-38 (Fed. Cir. 2009), noting that benefits for past periods of disability are distributed in a lump sum that is paid on top of the Veteran’s ongoing disability compensation (As would be the case here, where the Veteran was found retroactively entitled to a combined 40 percent rating prior to March 7, 2007 and 60 percent thereafter for the sleep apnea disability and fibromyalgia.) In Hamer v. Shinseki, 24 Vet. App. 58 (2010), the Court further explained that the purpose behind 38 C.F.R. § 3.105(e) is to enable veterans to adjust to the diminished expectation. Id. at 61-62. Given that the May 2007 rating action simultaneously assigned the two disabilities separate ratings that had a combined 40 percent evaluation effective October 7, 1996 and a combined evaluation to 60 percent effective March 7, 2007, and as the Veteran’s combined disability evaluation has at no relevant point been reduced below 40 percent, the Board finds that the provisions of 38 C.F.R. § 3.105(e) do not apply. Regarding rating deductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c); 3.343(a). Whether the reduction in rating from 40 percent to 20 percent for fibromyalgia effective from October 7, 1996 was proper. In the present case, the 40 percent rating for the Veteran’s service-connected fibromyalgia, reduced to 20 percent in the May 2007 rating decision on appeal, had been in effect since October 7, 1996; i.e., for more than five years. Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Under 38 C.F.R. § 4.71a, Diagnostic Code 5025, fibromyalgia is rated 10 percent disabling when continuous medication is required for control. A 20 percent rating is assigned when it is episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A maximum 40 percent rating is assigned when there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesia, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms: that are constant, or nearly so, and refractory to therapy. A note to Diagnostic Code 5025 states that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spin, or low back) and the extremities. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. Regarding relevant procedural history, service connection for muscle pain was granted in an August 2001 rating decision and a November 2001 rating decision assigned a 0 percent rating, effective the date of claim, February 28, 1995. Service connection for sleep disorder, joint pain/upper back pain, and fatigue was granted in a June 2003 Board decision. A subsequent rating decision in June 2003 amended the Veteran’s service-connected muscle pain disability to include joint pain/upper back pain, fatigue, and sleep disorder and assigned a 40 percent rating, effective February 28, 1995. Then, as noted above, in a May 2007 rating decision, the muscle pain disability was recharacterized as fibromyalgia with fatigue and the May 2007 rating action separated the initially combined evaluation for the service-connected disorder of fibromyalgia with fatigue into two separate disabilities, fibromyalgia with fatigue and sleep apnea. The June 2003 rating decision assigned a 40 percent rating, effective February 28, 1995, because medical evidence indicated the symptoms related to Veteran’s fibromyalgia were constant since her separation from service. On VA examination in June 1995, the Veteran complained of having chronic fatigue, stiff neck and back, severe menstrual cramps, insomnia, joint pain and skin rashes. The musculoskeletal system examination was noted to be within normal limits. The upper spine and stiff neck were observed to have normal contour with no muscle spasm. The range of motion of the cervical spine was within normal limits. The examiner’s diagnosis was that of stiffness in the neck and interscapular region, etiology unknown. The examiner noted that the Veteran’s symptoms were suggestive of chronic fatigue syndrome, insomnia, dysmenorrhea, generalized skin rashes and diastolic hypertension. The examiner considered a diagnosis of Persian Gulf War syndrome, inconclusively. Other than the presence of skin rashes, the examiner noted a “relatively normal physical exam.” In private medical records dated in 1996 to 1998, the Veteran was treated for a variety of complaints to include a five-year history of diffuse muscle aches, occasional backache, headache and abdominal pain since her military discharge. In a January 1996 progress note, the examiner’s diagnosis was that of a “vague constellation of complaints” with recommendation for physical therapy to include evaluation of musculoskeletal pain of the back. In August 1997, the Veteran testified at an RO hearing that her problems began shortly after returning home from Saudi Arabia. This included abdominal pain, skin problems, fatigue, irritability, sleep difficulty, muscle pain and joint pain. The Veteran also stated that she had undergone many evaluations and different courses of treatment, but had not been diagnosed as suffering from any specific illness or disease. On VA examination in October 1997, the Veteran complained of having chronic neck, shoulder, and low back pain. The onset was described as having been fairly sudden, occurring 1 to 2 months after returning from active duty in Saudi Arabia, with no prior trauma. The Veteran had a long history of poor sleep; however, not associated with her constant pain. On examination, the Veteran’s neck was within normal limits on flexion, extension and left/right lateral rotation. There was no point tenderness over the spine, although some tenderness was observed in the occipital region, bilateral trapezius region, and paraspinal muscle region of the lower lumbar spine. Her shoulder range of motion was normal with internal and external rotation bilaterally to 90 degrees with normal abduction to 180 degrees. The Veteran had normal elbow, knee, hip, and ankle motion. The examiner’s diagnosis was that of myalgias and chronic musculoskeletal pain. On neurological examination, the examiner observed no evidence of abnormality in mental status, cranial nerves, motor examination, coordination, sensory examination or gait. She had full range of motion in the back and neck. Cervical extension with lateral rotation to the left and right with the arm extended to her side did not evoke any radicular symptoms. The examiner’s impression was that of history of cervical and lumbar strain with persistent localized symptoms. The Veteran did not manifest any neurologic disease. On VA examination in May 2000, the examiner noted the Veteran’s service as having been as a vehicle dispatcher in Army Reserve unit that was activated from February to October 1991. She reported no trauma in service but reported that in November 1991, she experienced the rapid onset of her current myalgic symptoms that had not changed in distribution or severity. The Veteran reported having stiffness and aching in the trapezius area, bilaterally, from the interscapular level to the back of the neck and ears. She also reported bilateral aches in the lumbar muscles and right lateral abdominal muscles. On examination, the Veteran had normal posture, gait and affect. The musculoskeletal examination was entirely normal with no crepitation. There were no trigger points of pain and palpation of the trapezoid area did not demonstrate abnormal tightness or tenderness. No scoliosis or kyphosis was observed. The Veteran had 30 degrees of flexion to each side with 35 degrees of extension and anteflexion of 80 degrees. The X-ray studies dated in August 1994 and October 1997 were normal for the lumbosacral and cervical spine. The examiner’s diagnosis was that of myalgia with no objective evidence of organic rheumatologic disease. The Veteran submitted private medical records dated from 2000 to 2001 that reflect ongoing treatment of her chronic back pain, headaches and other health concerns. It was noted that the Veteran had differential Gulf War syndrome, depression, chronic fatigue syndrome and fibromyalgia with a nine-year history of pain since her military discharge. The Veteran was treated with physical therapy and narcotic pain medications. On VA examination in May 2002, the examiner noted he previously examined the Veteran in May 2000. The Veteran reported no change in her musculoskeletal symptoms since the May 2000 examination. Her complaints were limited to her right knee and bilateral aches in the trapezius area from the base of the skull to the scapulae. The Veteran was not affected by exertion or weather. The X-ray studies of the skull dated in June 2000 were noted to be normal. A computed tomography (CT) scan of the skull dated in July 2000 was normal, as well as, a September 2000 magnetic resonance imaging (MRI) scan of the skull. On examination, the Veteran had normal posture and gait. Mobility of the neck was reported to be “normal and easy.” No abnormality was palpable in the posterior cervical or upper dorsal area where diffuse pain was felt. No trigger points were claimed or detected. The Veteran’s mobility of the knees and hips was noted to be normal without crepitation. There was no tenderness on patellar compression. The Veteran had full range of shoulder mobility without apparent difficulty. The examiner noted, “as two years ago, no objective evidence of musculoskeletal disease was found.” In July 2002, the Veteran underwent a VA sleep study. The examiner diagnosed the Veteran as suffering from minimal sleep apnea with mostly rapid eye movement-related hypopneas, loud snoring, a mild decrease in sleep efficiency consistent with first night effect, and stated that there were no clinically important desaturations. On VA examination in February 2004, the examiner noted that he had seen the Veteran in numerous examinations including CT and MRI scans that revealed normal findings. The Veteran was noted to be on Percocet and, at the time of the examination, was employed as a loan processor. The Veteran reported being in constant pain in the cervical and upper back muscles. She noted that prolonged sitting increased the tightness in the neck and upper back muscles. While the Veteran reported no difficulty getting into and out of her car, she had increased pain on flexion and extension of the neck. She also complained of poor sleep due to pain on movement, but she did not claim to have a primary sleep disorder. The Veteran also reported intermittent right lower quadrant abdominal pain above the inguinal ligament that appeared to be unrelated to anything. The Veteran also reported having occasional headaches, diffuse swelling of the fingers without pain, right knee pain on climbing stairs for which she received steroid injections. On examination, the Veteran had normal posture, and her gait had a full range of all joint movements, performed with ease. The examiner observed no joint swelling or crepitation without discomfort on pressing of the patella. Strength of all extremities, proximally and distally was noted to be “excellent.” The Veteran’s back flexion was to 30 degrees to each side with 30 degrees of extension, and 65 degrees of anteflexion. Her mobility of the neck was noted to be “normal.” While the Veteran described a knot in the neck and upper back muscles, the examiner was unable to detect it. The examiner noted that the Veteran’s neck and upper back muscles were “normally developed and feel entirely normal –not unusually tense.” The examiner was uncertain of the presence of trigger points above the upper border of the scapulae because of the Veteran’s diffuse pain was stated to be in the entire trapezius and cervical musculature. The VA examiner’s diagnosis was that of chronic pain syndrome, cause undetermined. In a letter dated in April 2004, the Veteran was noted to have had 12 sessions of physical therapy. Since the start of therapy, the Veteran was noted to have “no significant change in pain level” and strength with lifting that was noted to be improved. The physical therapist noted that “objectively, active range of motion for the cervical spine was without deficit.” Mild hypermobility was noted throughout the mid-cervical region with tenderness to palpation of the rectus capitis major and minor, bilateral upper trapezii, levator scapula, and rhomboids. In a letter dated in June 2004, the Veteran’s orthopedist referred to a March 2004 evaluation. The cervical reflexes, sensory examination and muscle testing were noted to be within normal limits. An orthopedic examination of the cervical region showed negative cervical compression and negative distraction, although on shoulder depressor test a stretching pain was observed. Point tenderness was palpated in the upper-thoracics, lower cervicals, and trapezius muscles with decreased range of motion from C3 through T1, bilaterally. In a letter dated in November 2004, the Veteran’s private treating physician reported care since 1996 for fibromyalgia, irritable bowel syndrome, insomnia, fatigue and Desert Storm Syndrome. By the Veteran’s report, she had missed a great deal of work in managing her health problems. She reported being recently laid off from a job that required her to sit for prolonged periods of time. The physician opined that the Veteran’s limitations within the work environment would likely require her to work in a position where she was allowed frequent mobility with a mix of physical and mental work. One month later, in a letter dated in December 2004, the treating physician noted that the Veteran was unemployable. He added that the Veteran was “unresponsive to all forms of therapy: chiropractic, physical therapy, and individualized pain management.” The physician reported that all modalities had failed. VA treatment records dated in February 2005 reflects the Veteran’s complaints of myofascial pain. A TENS unit was issued for treatment of the veteran’s fibromyalgia. In a primary care note, the examiner referenced the February 1994 Persian Gulf War Registry evaluation and the veteran’s report of sleep difficulty and fatigue. She continued to complain of painful knots in her back and shoulders with intermittent, sharp right lower quadrant pain. It was noted that the veteran worked full-time as a loan officer and had missed work for doctor’s appointments and for “just not feeling well” which had caused problems in her employment. A November 2006 letter from a VA treating physician noted he had prescribed Modafinil for daytime fatigue. The provider noted the Veteran had a marginal response to treatment and continued to have trouble with memory, concentration, and alertness. The provider noted the Veteran was unable to maintain gainful employment with these cognitive symptoms and when combined with her physical disabilities, the Veteran was quite limited in terms of her activities of daily living. The provider noted the Veteran slept 10 to 12 hours a day due to fatigue. A January 2007 letter from the Veteran’s VA primary care physician noted she had been treating the Veteran since July 2006. The provider noted that the Veteran was applying for Social Security Disability because of her medical issues. The provider noted the Veteran had fibromyalgia, irritable bowel syndrome, and chronic back pain all of which have led to functional impairment and inability to work. The provider noted that all of the Veteran’s symptoms began after military service in Desert Storm in 1998 and that the Veteran has tried various treatment modalities for her symptoms, and was currently seen by various sub-specialists, including a neurologist and gastroenterologist. The provider noted that in terms of pervious treatments, the Veteran had tried NSAIDs, Flexeril, as well as opioids for her back pain and fibromyalgia. The provider also noted the Veteran has attended physical therapy, massage therapy, and had seen a chiropractor in the past. However, the provider noted that none of these treatments have relieved the Veteran of her pain and that she continued to have constant pain in her back, shoulders, and neck which she rated as 7 out of 10. On physical examination, the provider noted the Veteran had diffuse tenderness over neck, back, and scapulae, with tenderness with palpation in the right lower quadrant. The provider noted the Veteran was on methadone and Elavil for pain control and that her physical symptoms have caused significant functional impairment and have prevented her from holding a job. In a May 2007 VA examination, the examiner noted the Veteran’s reports of stiffening when she remained in one position. The Veteran reported that her stiffness was most severe in the morning and evening and that her knees ached. The Veteran reported she had constant discomfort in her posterior neck muscles and shoulder girdle. She also reported low back discomfort and fatigue. She reported she was fatigued before the sleep apnea began. The examiner noted the Veteran had been prescribed numerous medications over the years, to include Percocet beginning in 2000 and then a switch to Methadone in November 2006. However, the examiner noted there was limited analgesic effect. The examiner also noted the Veteran took Temazepam for sleep and Modafinil as a stimulant in the morning. However, the examiner noted the effects diminished after two weeks. The examiner noted the Veteran was receiving physiotherapy again. The examiner noted that all complaints except sleep apnea belonged to the diagnosis of fibromyalgia. On this basis, the Board finds no clear, material improvement to a 20 percent disability level between the time the 40 percent rating was assigned and when the reduction was made effective in October 7, 1996. It is not established that there was an actual improvement in the Veteran’s fibromyalgia which is reasonably certain to be maintained under the ordinary conditions of life. Instead, the evidence shows at least a constant, if not worsening, picture in the severity of her fibromyalgia with fatigue. Medical providers have consistently noted the Veteran’s ongoing symptoms related to her fibromyalgia that are refractory to therapy. Thus, the reduction in the disability rating from 40 percent to 20 percent was not proper, and the 40 percent rating must be restored effective October 7, 1996. The appeal to this extent is granted. Effective Date For purposes of effective dates, a claim for a total rating is a claim for an increase. Norris v. West, 12 Vet. App. 413 (1999). Generally, the effective date of the award of an increase in compensation is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, the determinative issue in this case is whether the Veteran was entitled to a TDIU (either schedular or extraschedular) at any time during the appeal period, prior to March 7, 2007. If so, the effective date for his TDIU would be the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception would apply if it is factually ascertainable that he was entitled to TDIU during the one-year period before the increased rating claim was received. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Entitlement to an effective date prior to March 7, 2007 for a TDIU. The Veteran asserts that she is entitled to an earlier effective date for the award of a TDIU. The evidence shows she initially filed a claim for a TDIU in January 2005, claiming her service-connected disabilities prevented her from securing or following any substantially gainful occupation. She noted on her TDIU application that she last worked full-time in October 2004 when she had been laid off for missing too much work. A March 2004 VA treatment record noted the Veteran was working full-time as a loan officer but had missed work for doctor appointments and for not feeling well. The provider noted that this had caused problems with past jobs. A January 2005 cervical/thoracic spine evaluation noted the Veteran had extreme difficulty performing normal activities of daily living (ADLs) and could not sit for more than 30 minutes. In January 2005, the Veteran submitted a letter dated December 20, 2004, from her treating medical provider, Dr. J.L.B., who found the Veteran was unemployable. The provider noted the Veteran was in constant pain and that the pain had been unresponsive to all forms of therapy, to include chiropractic, physical therapy, and individualized pain management. The provider reiterated that all of these modalities had failed. The Veteran indicated Dr. J.LB. had been treating her since 1996. The Veteran submitted a statement, dated January 4, 2005, that due to her disabilities, she had used all of her sick days and vacation days as well as numerous unpaid days off before she was ultimately laid off in 2004. A November 2006 letter from a VA treating physician noted he had prescribed Modafinil for daytime fatigue. The provider noted the Veteran had a marginal response to treatment and continued to have trouble with memory, concentration, and alertness. The provider noted the Veteran was unable to maintain gainful employment with these cognitive symptoms and when combined with her physical disabilities, the Veteran was quite limited in terms of her activities of daily living. The provider noted the Veteran slept 10 to 12 hours a day due to fatigue. A January 2007 letter from the Veteran’s VA primary care physician noted she had been treating the Veteran since July 2006. The provider noted that the Veteran was applying for Social Security Disability because of her medical issues. The provider noted the Veteran had fibromyalgia, irritable bowel syndrome, and chronic back pain all of which have led to functional impairment and inability to work. The provider noted that all of the Veteran’s symptoms began after military service in Desert Storm in 1998 and that the Veteran has tried various treatment modalities for her symptoms, and was currently seen by various sub-specialists, including a neurologist and gastroenterologist. The provider noted that in terms of previous treatments, the Veteran had tried NSAIDs, Flexeril, as well as opioids for her back pain and fibromyalgia. The provider also noted the Veteran has attended physical therapy, massage therapy, and had seen a chiropractor in the past. However, the provider noted that none of these treatments have relieved the Veteran of her pain and that she continued to have constant pain in her back, shoulders, and neck which she rated as 7 out of 10. On physical examination, the provider noted the Veteran had diffuse tenderness over neck, back, and scapulae, with tenderness with palpation in the right lower quadrant. The provider noted the Veteran was on methadone and Elavil for pain control and that her physical symptoms have caused significant functional impairment and have prevented her from holding a job. Dr. J.L.B. submitted another letter, dated May 2008, noting that the Veteran’s service-connected fibromyalgia with chronic fatigue caused her unemployability. Considering the restoration of the 40 percent for fibromyalgia, as decided herein, the Veteran’s service-connected disabilities include: muscle, joint, and upper back pain with fatigue and a sleep disorder at 40 percent from February 28, 1995 to October 6, 2007; plantar fasciitis at 10 percent from October 6, 2005; fibromyalgia at 40 percent from October 7, 1996; irritable bowel syndrome at 10 percent from February 28, 1995 to August 2, 2005, and 30 percent thereafter; and sleep apnea at 30 percent from October 7, 1996 to March 6, 2007, and 50 percent thereafter. The Veteran’s combined ratings are 50 percent from February 28, 1995; 60 percent from October 7, 1996; 70 percent from August 3, 2005, and 80 percent from March 7, 2007. Thus, this evidence shows she met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) from August 3, 2005, with the 70 percent combined rating. The Board finds that the evidence supports a finding that the Veteran is entitled to a TDIU on a schedular basis from August 3, 2005, the date she met the schedular criteria for a TDIU. This is in light of the numerous medical opinions from the treating medical providers indicating the Veteran’s inability to maintain gainful employment due to her service-connected disabilities, and her combined rating for her service-connected disabilities was 70 percent from August 3, 2005. The Board finds an earlier effective date of August 3, 2005 is warranted for entitlement to a TDIU. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is remanding the matter of an effective date earlier than August 3, 2005 for a TDIU on an extraschedular basis to the AOJ to determine whether the claim should be referred for consideration on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REASONS FOR REMAND Entitlement to an effective date earlier than August 3, 2005, for the award of TDIU, including on an extraschedular basis is remanded. As noted above, the Veteran was laid off from her last full-time employment in October 2004. The Veteran has claimed this was due to her work absences in which she took leave for her service-connected disabilities. In December 2004 and January 2005, the Veteran’s treating medical providers noted the Veteran was unemployable. Evidence of record also shows the Veteran had extreme difficulty performing normal ADLs and could not sit for more than 30 minutes. As this is competent evidence that the Veteran is unable to follow a substantially gainful occupation due to service-connected disabilities, the claim must be referred to the Director of Compensation and Pension in accordance with 38 C.F.R. § 4.16(b) to determine whether TDIU based on extraschedular consideration is appropriate. The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that “the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b) or § 4.16(b)); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The matters are REMANDED for the following action: (Continued on the next page)   Refer the Veteran’s claim for TDIU to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether TDIU is warranted on an extraschedular basis for any time prior to August 3, 2005. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel