Citation Nr: 21064115 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 20-15 957 DATE: October 19, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for fibromyalgia is reopened. Entitlement to a total disability rating based on individual unemployability (TDIU) from February 15, 2018, to December 28, 2020, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate from February 15, 2018, to January 19, 2021, is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to a rating in excess of 70 percent for depression is remanded. Entitlement to a rating in excess of 30 percent prior to January 20, 2021, and a compensable rating thereafter for irritable bowel syndrome (IBS) is remanded. Entitlement to an effective date earlier than February 15, 2018, for the increased rating of 70 percent for depression is remanded. Entitlement to an effective date earlier than February 15, 2018, for the increased rating of 30 percent for IBS is remanded. Entitlement to a TDIU rating prior to February 15, 2018, is remanded. Entitlement to SMC at the housebound rate prior to February 15, 2018, and from January 20, 2021, is remanded. FINDINGS OF FACT 1. A December 2009 rating decision denied service connection for fibromyalgia. The Veteran did not appeal or submit new and material evidence within a year of that rating decision. Thus, the December 2009 rating decision became final. 2. The evidence added to the record since the December 2009 rating decision raises a reasonable possibility of substantiating the claim. 3. From February 15, 2018, to December 28, 2020, the Veteran was not able to obtain or retain substantially gainful employment due to her service-connected depression. 4. From February 15, 2018, to January 19, 2021, the Veteran had a TDIU rating based on a single service-connected disability plus additional service-connected disabilities having a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for fibromyalgia. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52. 2. The criteria for entitlement to a TDIU rating from February 15, 2018, to December 28, 2020, is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. The criteria for entitlement to SMC at the housebound rate from February 15, 2018, to January 19, 2021, have been met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2018 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The May 2018 rating decision granted an increased rating of 70 percent for depression and an increased rating of 30 percent for IBS. The June 2018 rating decision denied the Veteran service connection for fibromyalgia. A February 2020 rating decision granted a TDIU rating from December 29, 2020 and decreased the 30 percent rating for IBS to a noncompensable rating from January 20, 2021. 1. Entitlement to a TDIU rating from February 15, 2018, to December 28, 2020, is granted. The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See February 2019 notice of disagreement; see also Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). 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. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis solely on her service-connected depression. The Veteran's depression has been rated at 70 percent disabling as of February 15, 2018. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of her depression from February 15, 2018. The issue regarding entitlement to a TDIU rating prior to February 15, 2018, is addressed in the remand portion of this order. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Importantly, marginal employment may also be held to exist on a facts-found basis, including but not limited to employment in a protected environment. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has alleged that she cannot work because of her service-connected disabilities. See June 2009 VA Form 21-8940. She states that she became too disabled to work in May 2008. Id. The Veteran has completed some college coursework but has not completed a full program. See December 2020 vocational assessment report. She earned a certificate in business management in 2012. Id. The Veteran's vocational history is primarily in sales. See December 2020 and September 2009 VA Form 21-8940. The last full-time position that the Veteran held was in 2008 as a sales manager. See September 2009 VA Form 21-8940. Her employment ended due to conflict with other employees. See September 2009 VA Form 21-4192. The record shows that the Veteran's depression causes difficulties with maintaining concentration and focus, trouble getting along with an office manager, trusting people in general, and disdain for the process of interacting with people. See December 2020 vocational assessment report, February 2018 VA examination report. The Veteran's depression causes limited physical activity, an overall lack of motivation and energy, and a preference for isolation. See December 2020 vocational assessment report. A Vocational Assessment Report explained that the Veteran's depression also causes significant difficulties with interacting with others appropriately and professionally. Id. Her depression causes ten to fifteen days of unproductive work each month and periods in which she is unable to concentrate. Id. Importantly, the assessment noted that the Veteran attempted to complete a college program on four separate occasions, but was incapable due to her significant difficulties with concentration. Id. The report concluded that the Veteran's marked mental limitations would render her "unable to meet the demands of even simple, unskilled sedentary employment with accuracy, efficiency, and consistency." Id. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of a disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts she personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is currently working in a self-employment capacity. Though the Veteran has been self-employed throughout the appellate period, the Board finds that the Veteran's self-employment is marginal employment. The Veteran works up to 30 hours per week. See December 2020 vocational assessment report. As noted above, her depression causes ten to fifteen days of unproductive work each month. Id. Self-employment provided her with the flexibility to create her own schedule. Id. Thus, at least a third of every month is allotted to provide significant accommodations for her disability. As these accommodations would not likely exist in a non-protected work environment, the Board finds her self-employed position is best described as being in a protected work environment. Here, the Veteran has some college education with a vocational history in sales. She has significant difficulties in communication and concentration due to her depression. A vocational expert has found that the Veteran is rendered unable to meet the demand of any unskilled employment. The Veteran's education, vocational history, and impairment caused by her depression do not avail her to substantially gainful employment. As such, the Board finds the Veteran, the vocational expert, and her treatment providers probative as to the functional limitations attributed to her depression. Therefore, the Board finds that the Veteran's service-connected depression prevents her from obtaining and maintaining gainful employment from February 15, 2018, to December 28, 2020. Accordingly, the criteria for TDIU from February 15, 2018, to December 28, 2020, have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 2. Entitlement to special monthly compensation (SMC) at the housebound rate from February 15, 2018, to January 19, 2021, is granted. The Board must consider entitlement to SMC when raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the housebound rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record. SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350(i). When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). Pursuant to the Order above, the Board has awarded TDIU based on the Veteran's depression alone, and the Veteran had additional service-connected disabilities independently ratable at a combined rating of 60 percent or more from February 15, 2018, to January 19, 2021. As noted above, the Veteran's disability rating for IBS was reduced to a noncompensable rating from January 20, 2021. The issues of whether the Veteran is entitled to SMC at the housebound rate prior to February 15, 2018, and from January 19, 2021, are addressed in the remand section of this opinion. Accordingly, as both elements of entitlement to SMC at the housebound rate have been shown from February 15, 2018, to January 19, 2021, the Board finds entitlement to SMC at the housebound rate is granted from February 15, 2018, to January 19, 2021. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran was afforded a VA examination in April 2018. See May 2018 VA examination report. The examiner opined that the Veteran has fibromyalgia and it is a medically unexplained chronic multisymptom illness (MUCMI). Id. Service connection may be warranted for qualifying chronic disabilities, such as a MUCMI. See 38 C.F.R. § 3.317. However, the premise for service connection under § 3.317 is that the Veteran served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. Id. The Veteran's service record does not show that she served in the Southwest Asia theater of operations. See generally, military personnel record. She contends that she served within the theater of operations while aboard the U.S.N.S. Comfort. See February 2018 VA Form 21-526. The AOJ has not made attempts to verify her service while aboard U.S.N.S. Comfort. Moreover, the Veteran alternatively contends that her fibromyalgia was caused by her service-connected endometritis, depression, and/or IBS. See December 2020 third party correspondence. A medical opinion has not been requested as to these theories of entitlement. As such, remand is necessary to make attempts to verify the Veteran's service and, subsequently, request another VA examination as to her additional theories of entitlement. 2. Entitlement to a rating in excess of 70 percent for depression is remanded. 3. Entitlement to a rating in excess of 30 percent prior to January 20, 2021, and a compensable rating thereafter for IBS is remanded. VA treatment records show that the Veteran is receiving treatment for "all [of her] current health issues" from a chiropractor and acupuncture diplomate. See February 2021 VA treatment records. Notably, the Veteran attached "initial scan results" from her first visit. Id. The attached results are not part of the record. Moreover, as the Veteran has provided contact information for her chiropractor, VA should make attempts to acquire and associate these records with the evidentiary record. 4. Entitlement to an effective date earlier than February 15, 2018, for the increased rating of 70 percent for depression is remanded. 5. Entitlement to an effective date earlier than February 15, 2018, for the increased rating of 30 percent for IBS is remanded. A decision on the remanded issues of increased ratings for depression and IBS could significantly impact a decision on the issues of effective date for the corresponding ratings. As such, the issues are inextricably intertwined, and a remand of the earlier effective date claims are required. 6. Entitlement to a TDIU rating prior to February 15, 2018, is remanded. A decision on the remanded issues of effective date for the increased ratings for depression and IBS could significantly impact a decision on entitlement to a TDIU rating prior to February 15, 2018. As such, the issues are inextricably intertwined, and a remand of the TDIU claim is required. 7. Entitlement to SMC at the housebound rate prior to February 15, 2018, and from January 20, 2021, is remanded. A decision on the remanded issues above could significantly impact a decision on entitlement to SMC at the housebound rate prior to February 15, 2018, and from January 20, 2021. As such, the issues are inextricably intertwined, and a remand of the SMC claim is required. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's service in the Southwest Asia theatre of operations during the Gulf War, including service aboard U.S.N.S. Comfort. 2. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for her depression, fibromyalgia, and irritable bowel syndrome that are not already of record, to include the "initial scan results" referenced in the January 2021 VA treatment entry. Make attempts to obtain private medical records from the Veteran's chiropractor noted in January 2021 VA treatment entries. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented. 3. After the above development is completed, if service in Southwest Asia theatre of operations cannot be established, schedule the Veteran for an examination to determine the nature and etiology of her fibromyalgia. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's fibromyalgia was incurred in, or is otherwise related to, her time on active service? B. Is it at least as likely as not that the Veteran's fibromyalgia was (a.) caused or (b.) aggravated by her service-connected disabilities, to include endometritis, depression, and/or IBS? In rendering these opinions, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.