Citation Nr: 21071715 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-03 626 DATE: December 1, 2021 ORDER Entitlement to an initial rating higher than 20 percent for fibromyalgia between May 13, 2010 and April 11, 2012 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) between May 13, 2010 and April 11, 2012 is denied. FINDINGS OF FACT 1. The evidence indicates that fibromyalgia symptoms were not constant, or nearly so and not refractory to therapy, between May 13, 2010 and April 11, 2012. 2. The evidence indicates that service-connected disability did not disable the Veteran from securing and following a substantially gainful occupation between May 13, 2010 and April 11, 2012. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for fibromyalgia between May 13, 2010 and April 11, 2012 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a. 2. The criteria for the assignment of a TDIU between May 13, 2010 and April 11, 2012 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 until January 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 and October 2020, the Board remanded the claims on appeal for additional medical inquiry. The case is again before the Board for appellate review. Initial Rating or Fibromyalgia On May 13, 2010, the Veteran claimed entitlement to service connection for fibromyalgia. In the December 2015 rating decision on appeal, the RO granted the claim. The RO assigned a 40 percent initial rating effective June 2, 2015. The Veteran appealed the assigned effective date of service connection. In June 2018, the Board granted an effective date of service connection of May 13, 2010, the date of the original claim. Following development conducted after the Board remands, the RO assigned a 20 percent initial rating from May 13, 2010 to April 11, 2012, and a 40 percent rating from April 11, 2012. The question before the Board is whether the maximum rating of 40 percent is warranted between May 13, 2010 and April 11, 2012. Relevant legal authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Fibromyalgia is rated under DC 5025 of 38 C.F.R. § 4.71a. This DC authorizes compensable ratings of 10, 20, and 40 percent. As the question before the Board is whether the 20 or 40 percent rating is warranted, the Board's inquiry will focus on whether the criteria for either rating have been approximated during the relevant time period between May 13, 2010 and April 11, 2012. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A 20 percent rating is warranted under DC 5025 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. A 40 percent rating is warranted under this DC for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. 38 C.F.R. § 4.71a. This DC describes fibromyalgia 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. 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, DC 5025. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, private and VA treatment records, medical evidence from the Social Security Administration (SSA), and VA compensation examination reports dated in August 2010 and August 2021. This evidence indicates that fibromyalgia symptoms between May 13, 2010 and April 11, 2012 were not constant, or nearly so, and not refractory to therapy. The August 2010 VA report is a general medical examination report which addresses several areas of the Veteran's body. The report notes arm and shoulder problems due to injuries in the early 2000s while the Veteran worked as a mechanic for a transit authority. The report notes specific orthopedic disorders such as rotator cuff tear, bicep tendon tear, pulled muscle, and left hand tendinitis. The report notes ankle pain and back pain stemming from a back injury during service. And the report notes neck sprain and neuropathy in the arms. But the report does not address fibromyalgia or generalized pain throughout the body that may be due to fibromyalgia. The VA treatment records dated between 2010 and 2012 indicate chronic pain centered around the neck, shoulders, and arms. Records in May 2010 detail magnetic resonance imaging noting "multilevel cervical spondylosis resulting in moderate canal stenosis" with disc bulging and herniation. The records also note that the Veteran had a heart attack in 2000 and, on a few occasions between 2010 and 2012, complained of chest pain. A twisting injury to the right lower leg is noted in emergency room treatment records dated in August 2011. Records indicate complaints of leg, hip, and back pain between 2010 and 2012. In particular, an October 2010 emergency room treatment record states that the Veteran reported with hip and leg pain, which treating personnel characterized as polyarthralgia. The private treatment records are dated prior to 2010 but detail extensive treatment for shoulder disorders to include bilateral surgeries for rotator cuff tears, and a surgery for a right bicep tendon tear. These records also detail psychological stress experienced as the result of physical pain. The August 2021 VA report provides a retrospective opinion about the nature and severity of fibromyalgia between May 13, 2010 and April 11, 2012. Based on a review of the claims file and an examination and interview of the Veteran, the examiner characterized fibromyalgia during the relevant time period as "moderately severe." In support, the examiner cited a November 2010 treatment note indicating neurological symptoms, weakness, fatigue, and sweating. In an addendum report also dated in August 2021, the examiner addressed the question of whether the symptoms were due to a connective tissue disorder between 2010 and 2012, rather than fibromyalgia. A connective tissue disorder has been service connected since August 2016. The examiner indicated that the symptoms could not be differentiated between the two disorders because connective tissue disease is an "overlap disease" meaning that its symptoms are often similar to other disorders such as fibromyalgia. In sum, the evidence shows that the Veteran experienced chronic pain between May 13, 2010 and April 11, 2012. But the evidence also shows that the bulk of the chronic pain related to diagnosed and nonservice-connected neck, shoulder, chest, back, leg, and arm disorders, not to fibromyalgia, or even to mixed connective tissue disease. See Mittleider, supra. This chronic pain related to shoulder and arm injuries the Veteran sustained while working as a mechanic in the early 2000s, related to "multilevel" degeneration, bulging, and herniation in the cervical spine diagnosed years after service, related to a back injury during service, and related to a leg injury requiring emergency room treatment in 2011. As indicated by the evidence, most of the pain experienced by the Veteran between 2010 and 2012 was not due to a system-wide disorder but to particular injuries, to residuals related to surgeries for those injuries, and to cervical spine problems. 38 C.F.R. § 4.71a, DC 5025. The VA treatment records do detail pains elsewhere in the Veteran's body. For example, he regularly complained of hip, leg, and ankle pain between 2010 and 2012. But these pains cannot be characterized as "widespread pain." Rather, they were focused in and around the lower extremities, and were overshadowed by the pronounced pain the Veteran complained of in his neck, shoulders, and arms. 38 C.F.R. § 4.71a, DC 5025. The medical evidence is based on examination and treatment of the Veteran and is explained with citation to facts in the record. It is therefore probative on the question before the Board. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Moreover, the medical evidence preponderates against the lay evidence here. The Veteran is competent to describe observable symptomatology such as pain and limitation in his body. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. Fibromyalgia is an internal pathology beyond his capacity for observation. It is a medical matter. Its etiology involves a complex medical question. Whether pain in his body is due to that disorder or to other diagnosed musculoskeletal disorders is a medical issue about which he is not competent. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the VA reports and treatment records are more credible than the Veteran's opinions. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). As such, the Veteran's lay assertions are outweighed by the VA medical evidence with regard to the severity of his disorder during the relevant time period. A preponderance of the evidence indicates that fibromyalgia symptoms between May 13, 2010 and April 11, 2012 were not "constant, or nearly so." As the preponderance of the evidence is against the claim to a higher initial rating, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU The Veteran has been in receipt of a TDIU since April 11, 2012. The remaining issue on appeal is whether the TDIU should apply from May 13, 2010. Between then and April 2012, the Veteran was service connected for fibromyalgia as 20 percent disabling and acquired psychiatric disability as 30 percent disabling. Relevant legal authority It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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 (a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above 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. 38 C.F.R. § 4.16 (a). An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In such case, the Board refers the claim to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). A TDIU claim is "part and parcel" of an underlying increased rating claim when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; and whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, private and VA treatment records, SSA records, and an August 2010 VA compensation examination report. Between May 2010 and April 2012, the Veteran was rated 20 percent disabled for fibromyalgia and 30 percent disabled for acquired psychiatric disability. As such, the threshold requirement for the assignment of a schedular TDIU are not met during the relevant time period. See 38 C.F.R. § 4.16(a). Further, based on a review of the evidence, referral of the case for extraschedular consideration is unwarranted. See 38 C.F.R. § 4.16(b). As detailed above, most of the Veteran's physical pain during the 2010 to 2012 time period related to nonservice-connected disorders due to either work-related injuries occurring over a decade after service discharge, or to degenerative changes in the cervical spine diagnosed years after service. The record indicates as well that the depression and anxiety experienced during this period related mainly to these nonservice-connected problems. The VA reports and treatment records dated between 2010 and 2012 noted depression, anxiety, panic attacks, and pressured speech. And the evidence even indicates that psychiatric symptoms may relate to posttraumatic stress disorder (PTSD), for which the Veteran is not service connected, but which the Board has nevertheless considered here. See Mittleider, supra. But the evidence during the relevant time period described the Veteran as neat, oriented, alert, logical, coherent, relevant, attentive, cooperative, with normal concentration, a congruent affect, good insight and judgment, and without a thought disorder, auditory hallucinations, delusional thinking, suicidal or homicidal ideations, or gross memory deficits. And the evidence indicates that most of the psychiatric impairment was due to physical inability related to nonservice-connected disorders. Private medical evidence is silent regarding the 2010-12 period but indicates in the mid-2000s that the Veteran had depression due to the disabling effects of work-related injuries in the early 2000s. Likewise, the August 2010 VA report noted depression related to constant pain and consequent unemployment and SSA disability income as a result of the injuries in the early 2000s. VA treatment records indicate the same, moreover. An April 2011 VA psychological evaluation notes that the Veteran lost his job in 2005 because he was disabled from the work-related injuries. The treating psychologist indicated, "moderate to serious levels of anxiety and depression secondary to chronic and disabling medical problems, pain, financial distress as well as continued distress related to his divorce and resulting separation from his daughter." And in a May 2011 VA treatment record, the Veteran reported "feeling depressed because of his physical disabilities making him 'half the man' he used to be. He cannot work as mechanic anymore. He cannot swim nor [be] involved in sports due to his cervical radiculopathy." In sum, the evidence indicates that disability between May 2010 and April 2012 related to nonservice-connected disorders. The evidence did not indicate an inability to secure and follow a substantially gainful occupation due to service-connected disability. Based on the foregoing evidentiary background, a referral for extraschedular consideration of a TDIU, for the period of time between May 13, 2010 and April 11, 2012, is not warranted. See 38 C.F.R. § 4.16(b). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.