Citation Nr: 20021567 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-27 293 DATE: March 26, 2020 REMANDED Entitlement to the assignment of an initial disability rating in excess of 20 percent for the service-connected fibromyalgia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1983 to December 1987, and from May 1988 to June 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted entitlement to service connection for fibromyalgia and assigned an initial disability rating of 20 percent. In December 2017, the Veteran filed a timely Notice of Disagreement (NOD) with the initial 20 percent rating assigned for the service-connected fibromyalgia. In April 2018, the RO issued a Statement of the Case (SOC), and the Veteran filed a timely VA 9, substantive appeal to the Board, in May 2018. In February 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. During the February 2020 Board hearing, the Veteran, through his representative, raised the issue of entitlement to a TDIU. Accordingly, an inferred TDIU claim is reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to the assignment of an initial disability rating in excess of 20 percent for the service-connected fibromyalgia. The Veteran’s service-connected fibromyalgia is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a. The Veteran last received a VA examination for his fibromyalgia in March 2016. During the March 2016 VA examination, the VA examiner characterized the fibromyalgia as “episodic” and “present more than one-third of the time.” He noted symptoms including widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, and headache. During the February 2020 Board hearing, the Veteran reported that his pain from fibromyalgia had become constant. He testified to worsening pain to his right arm in particular, which prevents the right-handed Veteran from being able to lift with that arm. Furthermore, he reported that his pain increases with activity, causes difficulties with concentration, and interferes with his sleep. Throughout the period on appeal, the Veteran has treated the fibromyalgia with increasing dosages of over-the-counter pain relievers. He has yet to take a fibromyalgia-specific drug or other narcotics for the fibromyalgia. See February 2020 Board hearing transcript. VA’s duty to assist a veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the veteran’s disability. See Hart v. Mansfeld, 21 Vet. App. 505, 508 (2007). The record is inadequate, and a contemporaneous examination is needed, when the evidence indicates that the current rating may be incorrect due to the passage of time or a possible increase in disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, remand is warranted for a new VA examination that accurately reflects the current severity of the Veteran’s fibromyalgia. 2. Entitlement to a TDIU. As noted in the introduction, during the February 2020 Board hearing, the Veteran’s representative reasonably raised the issue of entitlement to a TDIU. Specifically, the representative presented evidence of the Veteran’s unemployability due to the service-connected fibromyalgia. See Rice, 22 Vet. App. at 447. Accordingly, the issue of entitlement to an earlier effective date for the grant of TDIU is inextricably intertwined with the Veteran’s claim for an increased rating for fibromyalgia. As such, the Veteran’s TDIU claim must be deferred pending resolution of the fibromyalgia claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all of the Veteran’s outstanding VA treatment and private treatment records relevant to the pending claim on appeal, including any VA treatment records dated since February 2020. All actions to obtain the requested records should be documented fully in the claims file. 2. Schedule the Veteran for a VA examination by a qualified examiner to determine the current nature, extent, and severity of the service-connected fibromyalgia. The claims folder must be reviewed in conjunction with the examination and that review should be indicated in the examination report. The rationale for all opinions must be provided. The examiner should describe the nature and severity of all symptoms of the Veteran’s fibromyalgia, taking into consideration the Veteran’s statements regarding the extent of his symptoms. The examiner should specifically note if the Veteran’s symptoms are constant, or nearly so, and refractory to therapy. All findings should be described in detail and should be accompanied by a complete rationale. 3. Following completion of the development requested, readjudicate the Veteran’s claims, including a claim for TDIU. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.