Citation Nr: 18161187 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 09-37 426 DATE: December 28, 2018 ORDER Throughout the period on appeal, entitlement to a 40 percent disability rating for fibromyalgia is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his fibromyalgia has been manifested by symptomatology that is constant, or nearly so, and refractory to therapy throughout the period on appeal. 2. The probative evidence of record is against a finding that the Veteran has been unable to secure or follow substantially gainful employment solely due to a single service connected disability since he was last gainfully employed in August 2015. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a 40 percent disability rating for fibromyalgia have been met. 38 U.S.C. §§ 1155, 5107 (2012; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5025 (2018). 2. The criteria for entitlement to a TDIU based on a single disability, for the purpose of entitlement to special monthly compensation (SMC), have not been met. 38 U.S.C. §§ 1114(s), 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.350, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1988 to December 1991, and on active duty in the United States Army Reserve from June 2004 to August 2005. A brief discussion of the procedural history in this case is warranted. The issue of entitlement to an increased initial rating for fibromyalgia was most recently before the Board of Veterans’ Appeals (Board) in September 2017. The September 2017 Board decision granted an earlier effective date of November 28, 2006 for service connection for the Veteran’s fibromyalgia, and remanded the issue of an initial rating for fibromyalgia to be re-evaluated by the Agency of Original Jurisdiction (AOJ) in the first instance. Additionally, in the September 2017 Board decision, the Board found that a claim for TDIU was reasonably raised by the record, and remanded the issue to the AOJ for further development. In September 2018, the AOJ issued a supplemental statement of the case increasing the Veteran’s disability rating for fibromyalgia to 40 percent effective June 25, 2018, and denying entitlement to a TDIU and an initial disability rating in excess of 20 percent for fibromyalgia prior to June 25, 2018. In October 2018 correspondence from the Veteran, he contends that he should be entitled to an earlier effective date for the 40 percent evaluation for fibromyalgia, as well as a TDIU. Therefore, the issue of entitlement to an increased rating for fibromyalgia is only on appeal for the period prior to June 25, 2018. Additionally, the Board observes VA treatment records were added to the Veteran’s claims file since the September 2018 SSOC was issued, but they are cumulative of prior treatment reports considered by the AOJ in the first instance for the claims on appeal. Thus, there is no prejudice to the Veteran in proceeding with a decision on the merits. 1. Fibromyalgia Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Fibromyalgia is rated pursuant to the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025. Under DC 5025, fibromyalgia is defined as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms. The Note to DC 5025 provides 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 spine, or low back) and the extremities. 38 C.F.R. § 4.71a. Under DC 5025, a 20 percent rating is warranted for symptoms that are 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 warranted for symptoms that are constant, or nearly so, and refractory to therapy. It is well documented throughout VA treatment records, that the Veteran reported pain in multiple joints and chronic fatigue following service. In the May 2013 VA rheumatology consult, the Veteran was diagnosed with fibromyalgia. The medical evidence of record determined symptoms of his fibromyalgia started in 2004. See January 2014 VA examination note. The Veteran reported experiencing pain between his shoulder blades in 2004 after returning from his deployment in Iraq, and the pain progressed into his neck. See May 2013 VA rheumatology note. The Veteran stated he also had problems with his hands, wrists, elbows, knees, and ankles. He reported his hands, wrists, and forearms would go numb periodically, as well as tingling down the forearms. The Veteran indicated he experienced pain all the time, and that the pain was worse with activity. He reported nonsteroidal anti-inflammatory drugs (NSAIDs) helped ease the pain minimally, and that he had taken narcotics for five years, but stopped because it was not helping. The Veteran also reported not sleeping well. The May 2013 VA examiner indicated the Veteran had widespread musculoskeletal pain, noting the Veteran demonstrated all tender points for pain bilaterally, as well as stiffness, fatigue, and sleep disturbances. The examiner noted the Veteran’s fibromyalgia symptoms were episodic with exacerbations, and present more than one-third of the time. While the examiner noted that the Veteran’s fibromyalgia symptoms were not refractory to therapy, the Board observes that the Veteran had only been diagnosed and treated specifically for fibromyalgia less than three weeks before the May 2013 VA examination, and that treatments prior to his diagnosis of fibromyalgia had not alleviated the symptoms. Following his diagnosis and treatment for fibromyalgia, VA treatment records continued to demonstrate frequent complaints of chronic widespread pain. In May 2016 the Veteran was afforded another VA fibromyalgia examination. The May 2016 examiner explained that the Veteran had not been to physical therapy and did not participate in any regular stretching or aerobic exercise program; therefore, the examiner could not offer an opinion on whether the Veteran was refractory to treatment for fibromyalgia. The examiner noted that the Veteran demonstrated constant, or nearly constant, widespread musculoskeletal pain, sleep disturbances, and that his pain impacted his concentration and memory. The Veteran underwent a VA fibromyalgia examination again in June 2018. The examiner noted the Veteran’s treatment for fibromyalgia consisted of prescription medications, regular participation in an exercise program, and acupuncture. The Veteran reported he still experienced pain every day, and on bad days the pain made it hard to do anything, even sleep. The examiner noted the Veteran demonstrated constant, or nearly constant, widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, paresthesias, headache, depression, anxiety, irritable bowel symptoms, and Raynaud’s-like symptoms. For the entire period on appeal, and considering all medical and lay evidence of record, the Board finds that the Veteran’s fibromyalgia has been manifested by symptoms that are constant, or nearly so, and refractory to therapy. The Veteran’s fibromyalgia most closely approximates the criteria for a 40 percent disability rating, the maximum rating available, for the period on appeal. Effective November 28, 2006, an initial rating of 40 percent for fibromyalgia is granted. 2. TDIU The Veteran filed his application for a TDIU in December 2017. On the application, he indicated that he last worked full time in August 2015, earning approximately $3,200 a month, and that he became too disabled to work on August 21, 2015. He does not assert that a TDIU is warranted prior to that date. The key question at issue is whether a TDIU is warranted from August 21, 2015 to the present time. Notably, the Veteran is already in receipt of a total schedular rating of 100 percent for all times from August 21, 2015 to the present day. When a total schedular disability rating is already in effect, no additional disability compensation may be paid. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). However, a separate award of TDIU predicated on a single disability could form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Id. As it pertains to this case, 38 U.S.C. § 1114(s) provides that a Veteran is entitled to SMC where he has a service connected disability rated as total, and has additional service connected disability or disabilities independently ratable at 60 percent or more. The Court of Appeals for Veterans Claims (Court) has held that although a TDIU may satisfy the “rated as total” element of 38 U.S.C. § 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the requirement of “a service connected disability” because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). From August 2015 forward, the Veteran’s service connected disabilities include posttraumatic stress disorder (70 percent); sleep apnea syndrome (50 percent); fibromyalgia (based on the Board’s decision above, 40 percent); degenerative changes of the lumbosacral spine (10 percent); degenerative changes of the cervical spine (10 percent); right knee instability (10 percent); left knee instability (10 percent); right knee patellofemoral pain syndrome (10 percent); left knee patellofemoral pain syndrome (10 percent); and irritable bowel syndrome with gastroesophageal reflux disease (10 percent). As the Veteran’s PTSD was rated 70 percent disabling effective March 24, 2014, he meets the minimum schedular requirement for consideration of a TDIU based on a single disability under 38 C.F.R. § 4.16(a) for the period under consideration. In his October 2015 application for Social Security Administration disability benefits, the Veteran stated that he was not able to work due to his fibromyalgia and PTSD. The Veteran reported his ability to lift, squat, bend, stand, reach, walk, and kneel was limited due to pain. He also reported the pain impacted his concentration and memory. The Veteran indicated he was able to follow written and verbal instructions, and that he got along with authority figures. The Veteran reported he was able to handle some stressors well, depending on the type of stress. He also indicated it was difficult to remain seated during a flare-up. The Veteran’s spouse reported that he did not always get along with co-workers or other people, that he was short-tempered, and quick to agitate. In the November 2015 private mental evaluation, Dr. J.B. reported that symptoms of PTSD may affect the Veteran’s ability to respond appropriately to supervisors and co-workers, especially in situations of high stress. Dr. J.B. noted that the Veteran reported some difficulty in adapting to change and handling stress. Dr. J.B. opined that, while the Veteran’s fibromyalgia appears to be a complicating factor, his psychological functioning in and of itself preclude him from gainful employment. In the May 2016 VA back examination, the Veteran reported he quit his last job in August 2015 because he could not move anymore and it hurt to do anything. In the September 2016 VA psychology note, the Veteran stated he was unable to work full-time because of pain. In the March 2017 VA nutrition consult, the Veteran reported he quit working due to his fibromyalgia. In the July 2017 VA psychology note, the Veteran identified barriers to working as pain, fibromyalgia, and anxiety. In the November 2017 VA pain consult, the Veteran stated he quit working due to pain. In the April 2018 VA integrative health note, the provider noted the Veteran’s last employment was spent working third shift (midnight to 8:00 am), which he indicated was a common avoidance strategy for individuals attempting to cope with PTSD in that there are fewer people they have to interact with relative to the day shift. In the October 2018 VA psychology note, the Veteran identified pain as a barrier to employment, and stated that his pain increased with activity. The Veteran also reported becoming irritable when around other people, such as in a factory. The Veteran’s previous employer, whom the Veteran had been employed with for approximately four years, reported that the Veteran resigned in August 2015 because of his inability to stand and work the long hours due to pain. See January 2018 VA Form 21-4192. The employer noted concessions made during the Veteran’s employment included limiting him to eight-hour workdays with no overtime, and that he was temporarily laid off for 24 weeks due to pain. See also December 2017 VA Form 21-4138. The Board finds that an award of TDIU is not shown to be predicated on a single disability, but primarily on the combined effects of his service-connected fibromyalgia and PTSD. Although the private opinion from Dr. J.B. indicated the Veteran’s psychological functioning in and of itself precluded the Veteran from gainful employment, the Board finds this opinion is not supported by the facts. In this regard, the Board observes that the U.S. Court of Appeals for the Federal Circuit has held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation as a result of a service connected disability is a factual determination rather than a medical question. Geib v. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013). The Board recognizes that PTSD has certainly contributed to the Veteran’s occupational impairment, as is recognized by his current 70 percent disability rating for PTSD; however, the Veteran has consistently reported the primary reason he is no longer employed is due to pain from his service-connected disabilities, specifically fibromyalgia. The Board finds that the preponderance of evidence is against a finding of entitlement to a TDIU based on a single service connected disability. Thus, SMC under 38 U.S.C. § 1114(s) is not available as well. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel