Citation Nr: 20031045 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 13-34 018A DATE: May 4, 2020 ORDER An increased disability rating for unexplained polyarthralgia involving the shoulders, elbows, knees, and wrists, with headaches and fatigue, in excess of 20 percent from February 11, 2011 to October 19, 2016, and in excess of 40 percent from October 19, 2016, forward, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 11, 2011 to August 11, 2011 is denied. A TDIU from August 11, 2011 to September 1, 2011 is granted. FINDINGS OF FACT 1. From February 11, 2011 to October 19, 2016, polyarthralgia was manifested by daily widespread musculoskeletal pain worsened with prolonged standing and prolonged walking and during cold or rainy weather. 2. From October 19, 2016, forward, the Veteran is in receipt of the maximum schedular rating of 40 percent for service-connected polyarthralgia. 3. The Veteran reportedly has a high school education, has past work experience as a tree trimmer, and has not worked full-time since August 11, 2011. 4. For the TDIU rating period on appeal from February 11, 2011 to September 1, 2011, the Veteran is service connected for posttraumatic stress disorder (PTSD) with polysubstance abuse, rated at 70 percent, and unexplained polyarthralgia, rated at 20 percent; the combined disability rating is 80 percent. 5. The Veteran was employed full-time from February 11, 2011 to August 11, 2011; from August 11, 2011 to September 1, 2011, the service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating higher than 20 percent for polyarthralgia have not been met or approximated from February 11, 2011 to October 19, 2016. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5025. 2. The criteria for an increased disability rating higher than 40 percent for polyarthralgia have not been met or approximated from October 19, 2016, forward. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5025. 3. The criteria for a TDIU are not met or approximated from February 11, 2011 to August 11, 2011. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU from August 11, 2011 to September 1, 2011 are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Marine Corps from October 1987 to October 1991. This matter is on appeal from an August 2011 rating decision. In November 2015, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned. In October 2017, the Board remanded the issues on appeal for readjudication by the Agency of Original Jurisdiction (AOJ). In a December 2019 rating decision, the AOJ granted a TDIU effective from September 1, 2011; therefore, the TDIU rating period remaining on appeal is from February 11, 2011 to September 1, 2011, as reflected above. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Disability Rating Legal Authority Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Rating Analysis for Polyarthralgia Polyarthralgia is rated 20 percent from February 11, 2011 to October 19, 2016, and at 40 percent thereafter, under the criteria at 38 C.F.R. § 4.71a, DC 5025 for fibromyalgia. These regulatory criteria contemplate fibromyalgia manifested by 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. Diagnostic Code 5025 provides for a 10 percent disability rating for fibromyalgia symptoms that require continuous medication for control, a 20 percent disability rating for fibromyalgia 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, and a 40 percent disability rating for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. From February 11, 2011 to October 19, 2016 For the portion of the increased rating period from February 11, 2011 to October 19, 2016, the weight of the evidence is against finding that the criteria for a rating higher than 20 percent under the criteria at 38 C.F.R. § 4.71a, DC 5025 for fibromyalgia are met or approximated for any portion of the rating period. Throughout this portion of the rating period, polyarthralgia was manifested by daily widespread musculoskeletal pain worsened with prolonged standing and prolonged walking and during cold or rainy weather. The polyarthralgia disability picture for this period is consistent with the 20 percent rating criteria under DC 5025 for fibromyalgia – i.e., episodic fibromyalgia symptoms and exacerbations often precipitated by environmental or emotional stress or by overexertion but are present more than one-third of the time. For these reasons, the criteria for an increased rating higher than 20 percent under DC 5025 are not met or approximated for polyarthralgia for this period. 38 C.F.R. §§ 4.3, 4.7. From October 19, 2016, forward For the portion of the increased rating period from October 19, 2016, forward, polyarthralgia is rated at 40 percent under the criteria at 38 C.F.R. § 4.71a, DC 5025 for fibromyalgia. Under these regulatory criteria, a maximum 40 percent rating is provided when fibromyalgia (fibrositis, primary fibromyalgia syndrome) is manifested by 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, are constant or nearly constant, and are refractory to therapy. Throughout this period, polyarthralgia was manifested by widespread musculoskeletal pain and tender points, stiffness, fatigue, sleep disturbance, and headache, and symptoms are constant or nearly constant, treated with cortisone injections, and are not refractory to therapy. All symptoms and functional impairment associated with fibromyalgia are contemplated by the schedular criteria and encompassed in the 40 percent schedular rating; therefore, because the Veteran is already receiving the maximum schedular disability rating permitted under DC 5025, a higher schedular rating is not available for this portion of the period. TDIU Legal Criteria Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. To prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 2. TDIU Analysis The Veteran contends that he has been unemployable since approximately August 2011 due to service-connected disabilities. For the TDIU rating period from February 11, 2011 to September 1, 2011, the Veteran is service connected for PTSD with polysubstance abuse, rated at 70 percent, and unexplained polyarthralgia, rated at 20 percent. The combined disability rating is 80 percent. Thus, the Veteran has two or more service-connected disabilities, with one disability (i.e., PTSD with polysubstance abuse) rated at 40 percent or higher from February 11, 2011, and a combined 80 percent rating for the service-connected disabilities; therefore, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the entire TDIU rating period. From February 11, 2011 to August 11, 2011 After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the criteria for a TDIU are met for the period from February 11, 2011 to August 11, 2011. For this portion of the TDIU rating period, the Veteran was reportedly employed full-time as a tree trimmer, so is not shown to have been unable to obtain or maintain substantially gainful employment due to the service-connected disabilities. See September 2017 VA Form 21-8940 (noting work as a tree trimmer for more than forty hours per week from February 1992 to August 2011). Earlier versions of the VA Form 21-8490 alternatively note that the Veteran last worked full-time in 2009; however, even assuming the veracity off such report, it would show that entitlement to a TDIU arose more than one year prior to receipt of the February 2011 claim for a TDIU, and the effective date for assignment of a TDIU, which is a form of increased rating, will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. For these reasons, a TDIU from February 11, 2011 to August 11, 2011 is not warranted. From August 11, 2011 to September 1, 2011 After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran has been unable to obtain or maintain substantially gainful employment solely due to the service-connected disabilities from August 11, 2011 to September 1, 2011. For this period, the evidence shows that the service-connected PTSD with polysubstance abuse was manifested by occupational and social impairment resulting in deficiencies in thinking, work, and mood due to psychiatric symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including in a work or work-like setting, inability to establish and maintain effective relationships, and impaired impulse control with irritability or outbursts of anger. The service-connected polyarthralgia was manifested by daily widespread musculoskeletal pain worsened with prolonged standing and prolonged walking and during cold or rainy weather. Because the Veteran's past work experience requires the ability to be alert while focusing on tasks and to adapt to stressful circumstances for safety reasons, as well as the ability to stand and walk for prolonged periods, and he has limited education, it is likely that the service-connected psychiatric disability and polyarthralgia disabilities would significantly impair the ability to retain substantially gainful employment. The Veteran credibly reported that he last worked full-time on August 11, 2011. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met for the period from August 11, 2011 to September 1, 2011. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, Counsel 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.