Citation Nr: 1818878 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 14-28 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating for fibromyalgia in excess of 10 percent from August 26, 2002 to February 24, 2013. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The Veteran testified at a November 2017 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. A claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As will be discussed further below, evidence of record suggests that the Veteran's service-connected fibromyalgia on appeal may interfere with her ability to secure or follow a substantially gainful occupation. As such, a claim for a TDIU is before the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT From August 26, 2002 to February 24, 2013 the Veteran's fibromyalgia symptoms were constant, or nearly so, and refractory to therapy. CONCLUSION OF LAW From August 26, 2002 to February 24, 2013 entitlement to a 40 percent disability rating, but no higher, is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5205 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION By way of background, an April 2013 rating decision granted entitlement to service connection for fibromyalgia, effective August 26, 2002. A 10 percent disability rating was assigned from this date and a 40 percent disability rating was assigned from February 25, 2013. The Veteran submitted a Notice of Disagreement (NOD) in May 2013, in which she stated that "I disagree with the effective date of 02/25/2013 for the 40% rating" and that "the rating assignment of 40% should have been effective from 08/26/2002, the filing date of my claim." In a September 2013 statement the Veteran stated "[r]equest the...rating of 10% be increased to reflect the maximum rating." In an October 2013 statement the Veteran stated "[p]lease consider the evidence provided and reconsider your rating of 10% from years 2002-2013 to 40%." In the June 2014 Statement of the Case (SOC), the AOJ stated that "[y]ou requested an earlier effective date for 40 percent evaluation however we will consider your statement as a request for a higher initial evaluation." As such, the issue before the Board is entitlement to an initial disability rating for fibromyalgia in excess of 10 percent from August 26, 2002 to February 24, 2013. As referenced, the Veteran has stated that a 40 percent disability rating is warranted from August 26, 2002. The Veteran's fibromyalgia is rated under Diagnostic Code 5025 (Fibromyalgia). Diagnostic Code 5025 includes the following as applicable to all disability ratings "[w]ith 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." A 10 percent disability rating is warranted for the referenced symptoms "[t]hat require continuous medication for control." A 20 percent disability rating is warranted for the referenced symptoms "[t]hat 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 40 percent disability rating is warranted for the referenced symptoms "[t]hat are constant, or nearly so, and refractory to therapy." 40 percent is the highest schedular disability rating available. Upon review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board concludes that from August 26, 2002 to February 24, 2013 a 40 percent disability rating is warranted for the Veteran's fibromyalgia. As noted, the 40 percent disability rating criteria contemplates the referenced symptoms as being "constant, or nearly so, and refractory to therapy." Refractory is defined to mean "resistant to treatment." See Dorland's Illustrated Medical Dictionary 1617 (32nd ed. 2012). When considering this definition, the Board does not find "refractory to therapy" to require therapy to have no impact on symptoms. This is because refractory is defined as "resistant to treatment," and if symptoms are present following treatment, they are resistant to treatment in that they still exist and have not been cured by the treatment. With this in mind, the Board finds that from August 26, 2002 to February 24, 2013 the Veteran's fibromyalgia symptoms were constant, or nearly so, and refractory to therapy. In general, the Board finds that the Veteran's symptoms were constant or nearly so during the relevant period and that, while evidence indicated that the Veteran's symptoms waxed and waned at times, they were overall refractory to therapy in that they were resistant to treatment and persisted during the relevant period. In this regard, the Board will highlight certain evidence that it finds to be particularly probative in support of its conclusion. The Board notes that at points the Veteran was noted to have been diagnosed with Lyme disease and symptoms were ascribed to that disability. VA has, essentially, determined that the Veteran does not have Lyme disease, but rather has fibromyalgia. See September 2011 Board Decision (denying entitlement to service connection for Lyme disease on the basis that, essentially, there was no diagnosis of such condition). The agency of original jurisdiction (AOJ) used records that noted treatment for Lyme disease as part of rating the Veteran's fibromyalgia. See April 2013 Rating Decision (stating that "although some of the available records note treatment for Lyme disease rather than fibromyalgia...we have resolved all reasonable doubt in your favor and utilized the aforementioned records in assigning an evaluation of 10 percent for your fibromyalgia"). The Board will continue with this favorable treatment of the evidence. Initially, a February 25, 2013 VA Fibromyalgia Disability Benefits Questionnaire (DBQ) noted widespread musculoskeletal pain and tender points (among other symptoms) and stated that fibromyalgia symptoms were constant or nearly constant. The examiner also noted that the Veteran's fibromyalgia symptoms were refractory to therapy. The examiner stated "[t]he [V]eteran admits to increasing dosages of her medications over the years due to continued pain on lower dosages of her chronic medications." This information indicates that the Veteran's fibromyalgia symptoms were refractory to therapy prior to the date of the February 25, 2013 VA examination. Also of record is February 2012 Fibromyalgia DBQ completed by a private Dr. F.M. (the Veteran submitted a copy of this DBQ in October 2012 along with a January 2012 statement from Dr. F.M.). Widespread musculoskeletal pain and tender points (among other symptoms) were noted, as well as that fibromyalgia symptoms were constant or nearly constant. Dr. F.M. noted that the Veteran's fibromyalgia symptoms were not refractory to therapy and stated "slightly improved." At the November 2017 Board hearing, the Veteran referenced the notation of "slight improvement" on the DBQ and stated that "slight improvement over all those years doesn't give me a whole lot." The Board finds that slight improvement of symptoms indicates that the Veteran's symptoms were resistant to treatment, as a significant amount of symptoms remained in spite of treatment. As such, they can still be considered as refractory to therapy within the meaning of Diagnostic Code 5025. An October 2011 VA treatment note stated that the Veteran reported pain as a 9 on a 1-10 scale and that the Veteran "states that their pain is an old pain that has not changed or gotten worse." This indicates that the Veteran's pain is refractory to treatment, in that the Veteran's pain was resistant to treatment as it had not changed and remained at a 9 on a 1-10 pain scale. A March 2011 Infections, Immune and Nutritional Disabilities VA examination report noted that, regarding Lyme disease, "[t]here was a gradual onset of systemic symptoms including arthralgias" and that the course since onset was "[w]orsened through 1998 then stabilized at the 1998 level." The examination report also stated that "[t]here is some waxing and waning of symptoms but no real remissions." These statements indicated that the Veteran's symptoms were refractory to therapy in that they were stabilized and did not go into remission in spite of treatment, which reflects that symptoms were resistant to treatment. Earlier VA treatment records included a February 2004 VA treatment record noted that the Veteran reported "stiff joints and aches in muscles every day." While an October 2002 VA treatment record referenced chronic left knee and right hip pain and stated "time and pain pills make it better," a March 2003 VA treatment note stated that the Veteran "[w]ill cont[inue] Ibuprofen as provides relief from pain. Does not 'cure' in [Veteran's] eyes" and a May 2003 VA treatment record noted that the Veteran reported "[f]eels she is better with IV antibiotics" and that "[f]eels Motrin did not help with pain and stopped it." A February 2003 VA treatment record referenced a variety of symptoms, to include weakness and joint/neuropathic symptoms, and treatment, to include antibiotics, painkillers and muscle relaxants, and stated that "[n]othing successfully controls her symptoms." Also of record are records from private medical doctors. A November 2004 letter from Dr. F.M. stated that the Veteran "continues to suffer with daily pain, incapacitating fatigue and malaise...the [Veteran] is obviously disabled." An October 2005 urgent care note that stated that the Veteran was "in for chronic fibromyalgia" and that she "states pain is not controlled by Percocet." A November 2005 letter from Dr. W.O. stated that the Veteran "has been disabled since 2001 and apparently cannot obtain relief despite all the medications utilized thus far." Referenced was horizontal therapy and that a session "afforded excellent relief during the 30 minute treatment." Also of record are various letters from Dr. J.J. An October 2002 letter stated that "[f]or a number of years, [the Veteran] has had the evolution of a symptom complex, which has waxed and waned, which, unfortunately, has been debilitating for some time now" and that "symptoms have included migratory arthritis mainly involving large joints, generalized aching, marked fatigue with an element of fibromyalgia." Similar letters are of record dated in January 2003 and October 2004. An August 2003 letter referenced symptoms of marked fatigue and chronic relapsing pain and stated that the Veteran "is experiencing fatigue to the extent that she cannot perform [activities of daily living] on a consistent and adequate basis. [The Veteran's] debilitating condition which has progressed over the years, has precluded her from gainful employment to include sedentary work." A September 2003 letter referenced various symptoms, to include chronic relapsing pain and migratory arthritis, referenced "moderate improvement" with treatment and stated that "[w]e hope that symptoms will improve, however, [the Veteran's] progress has been slow and will require on-going treatment." A January 2004 letter referenced various symptoms, to include chronic relapsing pain and migratory arthritis, and stated that the Veteran "has been complaint with her treatment regimen[]...however, her improvement has been slow. [The Veteran's] symptom continues to persist." Various treatment records from Dr. J.J. are also of record, which are dated from January 2002 to November 2006. In general, these records included some references to the Veteran feeling better or to improvement, but other records referenced symptoms continuing or increasing. For example, an October 2002 note stated that the Veteran "continues to have a number of problems with malaise, myalgias, etc," a February 2003 note stated that the Veteran "simply is not better despite" treatment, an October 2003 note stated that the Veteran "I think is improving" and that "[s]he continues to have joint pain, of course," a March 2004 note stated that the Veteran is "doing better on her program" and that "1 Percocet per day and this reflects the fact that she is much improved in terms of pain," a June 2004 note stated that "overall she states she is vastly improved over her baseline but still having a number of issues including lancinating pain," a June 2004 note referenced "increased arthralgias," a September 2004 note stated that "while she is much improved over her baseline, she is basically at a plateau in terms of joint pain, discomfort, fatigue," a December 2004 note stated that "she definitely has intensification of her symptoms on therapy," a February 2005 note referenced that the Veteran's "pain is stable on current pain regiment of Duragesic and Percocet," a September 2005 note referenced the Veteran's pain medication being increased and a November 2006 referenced the Veteran as "overall doing better than she has in some time" and "[w]ith her generalized pain, she went to a 'horizontal pain treatment program'...This was effective but there was some conflict about insurance coverage an things had to be aborted." The Board also has considered the Veteran's lay statements. The Veteran has contended that, essentially, she had constant symptoms during the relevant period that only slightly improved. In this regard, at the November 2017 Board hearing the Veteran responded "[y]es, exactly" to a question from the VLJ that "from your point of view, then, your symptoms really were never really improving since 2002, and it was always constant?" Upon review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that from August 26, 2002 to February 24, 2013 the Veteran's fibromyalgia symptoms were constant, or nearly so, and refractory to therapy. While the Veteran's symptoms waxed and waned at times, overall they were constant or nearly so during the relevant period and they were refractory to therapy in that they were resistant to treatment as they persisted during the relevant period. As such, the Board concludes that from August 26, 2002 to February 24, 2013 entitlement to a 40 percent disability rating, but no higher, is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5205 (2017). To this extent, the Veteran's claim is therefore granted. The Board notes that this is the highest schedular rating available under Diagnostic Code 5205 and that this grants the specific rating from the specific date the Veteran has advocated for. See May 2013 NOD, October 2013 Statement. ORDER From August 26, 2002 to February 24, 2013 entitlement to a 40 percent disability rating, but no higher, is granted. REMAND As noted in the Introduction, evidence of record suggests that the Veteran's service-connected fibromyalgia on appeal may interfere with her ability to secure or follow a substantially gainful occupation. In this regard, on an October 2017 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) the Veteran noted that she last worked full time in January 2002 and listed fibromyalgia as one of her service connected disabilities preventing her from securing or following any substantially gainful occupation. The AOJ granted entitlement to a TDIU, effective April 1, 2018. Of record, as discussed above, are various letters from Dr. J.J. An October 2002 letter from Dr. J.J. stated that the Veteran's "health status makes it impossible for her to work as before." Similar letters were dated in January 2003 and October 2004. An August 2003 letter from Dr. J.J. referenced symptoms of marked fatigue and chronic relapsing pain and stated that the Veteran "is experiencing fatigue to the extent that she cannot perform [activities of daily living] on a consistent and adequate basis. [The Veteran's] debilitating condition which has progressed over the years, has precluded her from gainful employment to include sedentary work. [The Veteran] is presently disabled and is not able to engage in any stressful situation, physical or emotional." A January 2004 letter from Dr. J.J. stated that "[i]t is my professional opinion that [the Veteran] is not in any condition to drive, or return to work, and is not a candidate for occupational or vocational rehabilitation" and that the Veteran's "social status and functioning has certainly been impacted by this disease and is evidently incapacitated and has our full support of any disability process. A premature return to work could be detrimental to this patient's health and therefore we cannot release her to return to work." A November 2004 letter from Dr. F.M. referenced that the Veteran "continues to suffer with daily pain, incapacitating fatigue and malaise" and stated that the Veteran "is obviously disabled." A November 2005 letter from Dr. W.O. referenced the Veteran as having "multiple pain issues" and stated that the Veteran "has been disabled since 2001." The March 2011 Infections, Immune and Nutritional Disabilities VA examination report noted problems associated with the Veteran's diagnosis (which included "possible fibromyalgia") of fatigue and diffuse pain and noted that the general occupational effect was "[t]otal disability" and that "[d]aily activities are severely restricted." The February 2013 Fibromyalgia DBQ noted that the Veteran's fibromyalgia impacted her ability to work and stated that "[t]he [V]eteran is currently unemployed and has multiple days that she does not leave the house due to symptoms of fatigue and hurting all over." In addition, Social Security Administration (SSA) records indicated that the Veteran was granted disability benefits effective in February 2002. A July 2004 decision from an Administrative Law Judge noted that the Veteran had severe impairments of Lyme disease, organic brain syndrome and degenerative disc disease and stated that the Veteran "is unable to do sustained work activities in an ordinary work setting on a regular and continuing basis" and "[b]ased on the [Veteran's] residual functional capacity, and vocational factors, there are no jobs existing in significant numbers which she can perform." The Board notes that a schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability rated at least 60 percent or multiple service-connected disabilities with a combined rating of at least 70 percent (with at least one of those disabilities rated at least 40 percent). See 38 C.F.R. § 4.16(a) (2017). When the schedular TDIU requirements are not met, however, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b) (2017). In this regard, the Board notes that neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Rather, the regulation requires that, in cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above, the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2017). In this case, even after the Veteran's increased 40 percent disability rating granted above for fibromyalgia from August 26, 2002 is considered, she does not meet the schedular TDIU criteria during the relevant period. Based on the evidence referenced above, however, the Board concludes that submission to the Director of Compensation Service for extraschedular consideration is warranted and accordingly remand is required. Accordingly, the case is REMANDED for the following action: 1. Submit the Veteran's case to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) (2017). Attention is invited to the documents discussed in the body of the remand. 2. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and her representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs