Citation Nr: 21073901 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 13-23 825 DATE: December 13, 2021 ORDER Entitlement to service connection for fibromyalgia or a disability characterized by chronic pain and fatigue, to include as secondary to a post-traumatic stress disorder (PTSD) with major depressive disorder, excoriation, and obsessive-compulsive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from December 6, 2013 is granted. Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) for the period from November 9, 2010 to December 6, 2013 is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had fibromyalgia, or a separate and distinct disability characterized by chronic pain and fatigue at any time during or approximate to the pendency of the claim; his chronic pain and fatigue have been attributable to other diagnosed disorders which have not been service-connected. 2. From December 6, 2013 to present, the Veteran's service-connected disability precluded him from obtaining or maintaining substantial gainful employment. 3. From November 9, 2010 to December 6, 2013, the Veteran's PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder and bilateral hearing loss precluded him from obtaining or maintaining substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia and/or a separate disability characterized by chronic pain and fatigue have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 2. The criteria for entitlement to a TDIU from December 6, 2013 to present have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.16. 3. The criteria for entitlement to a TDIU on an extraschedular basis for the period from November 9, 2010 to December 6, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1962 to August 1965. The Veteran's service connection claim for fibromyalgia and/or a disability characterized as chronic pain and fatigue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In a May 2020 Board decision, the Board found his TDIU claim arose from his claim for an increased rating for his PTSD which originates from a September 2018 rating decision. Rice, 22 Vet. App. 447, 455 (2009). In December 2016, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. In an October 2017 decision, the Board denied his service connection claim for a fibromyalgia disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 joint motion for partial remand (JMPR), the parties stipulated that the Board committed a duty to assist error in failing to obtain the Veteran's VA medical treatment records from 1999 to 2014 and private treatment records from Dr. Higgins. In February 2019, the Board remanded the Veteran's claim in accordance with the July 2018 JMPR. The VA regional office attempted to obtain the Veteran's treatment records from Dr. Higgins multiple times throughout the period on appeal, but the Veteran did not provide any response to the VA's inquiry. The Board further attempted to obtain his VA treatment records from 1999 to 2006. After multiple attempts, the VA regional office notified him in July 2019 that his VA treatment records from 1999 to 2006 were unavailable. The Veteran subsequently contacted the VA Regional Office to clarify that he began going to the VA medical centers in January 2006. Thus, there has been substantial compliance with the February 2019 Board remand. In a May 2020 decision, the Board recharacterized his fibromyalgia claim to include a disability characterized by chronic pain and fatigue, however diagnosed. The Board again remanded his claim for a VA examination to clarify his diagnosis and to determine the etiology of his disability. VA medical opinions for direct and secondary service connection was obtained in March 2021, however, no medical opinion was provided for the component of proximate cause under a theory of secondary service connection. The Board again remanded by his claims in April 2021 for an addendum medical opinion. In a September 2021 supplemental statement of the case (SSOC) his claims were again denied. These claims are again before the Board for adjudication. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). 1. Fibromyalgia and/or a disability characterized by chronic pain and fatigue The Veteran seeks service connection for a fibromyalgia disability, or a disability characterized by chronic pain and fatigue. Specifically, he believes that it is aggravated by his mental health disorders. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon review of the evidence, the Board finds that the Veteran does not have a current diagnosis of fibromyalgia or a separate and distinct disability characterized by chronic pain and fatigue. The Board acknowledge that a private doctor noted an assessment of fibromyalgia in December 2013. However, a December 2020 VA examiner opined that he did not have a diagnosis of fibromyalgia due to lack of medical and objective evidence to support his condition. There were no findings, signs, or symptoms such as widespread musculoskeletal pain or fatigue attributable to fibromyalgia. The Board finds this opinion and the rationale expressed are more probative than the December 2013 assessment. Similarly, in a May 2021 VA examiner opined that he did not have an established documented diagnosis of fibromyalgia. The VA examiner stated that the reference made to fibromyalgia by a foot and ankle specialist in 2013 was not valid as it was not supported by the required criteria for a diagnosis. There were also no treatment or other mention of fibromyalgia since that single notation by the December 2013 private doctor. As it was unclear as to what the May 2021 VA examiner meant by stating there is a lack of objective evidence in supporting a diagnosis, the Board obtained an addendum medical opinion in June 2021. The June 2021 VA examiner explained that objective findings relevant to fibromyalgia consist of, but is not limited to, basic documentation stating that testing is being completed to rule out all conditions which may overlap in symptomology with fibromyalgia; documentation that practitioners are "ruling out" fibromyalgia as a cause for symptoms; extensive physical and ancillary testing to determine the cause of veteran's condition; laboratory findings such as blood test; concrete and ongoing diagnosis of fibromyalgia within the present claims file. The VA examiner acknowledged the "assessment" of fibromyalgia in December 2013 but stated there was no established or documented diagnosis of the disability. Moreover, the VA examiner stated that the reference to fibromyalgia was not supported by the required criteria for a diagnosis and that there is no other treatment or mention of the condition since that single notation. With regards to a disability characterized by chronic pain and fatigue, the Board does not dispute that the Veteran experiences symptoms of pain and fatigue. However, the Board finds that the Veteran does not have a separate and distinct disability characterized by chronic pain or fatigue. Notably, a December 2020 VA examiner stated that his chronic pain and fatigue symptoms were attributable to numerous medical conditions, including gastrointestinal, chronic anemia, neck and back degenerative disease with radiculopathy, diabetes mellitus, mental health disorders, chronic kidney disease, hypertension, and gout. The December 2020 VA examiner further noted his subjective complaints of chronic fatigue and weakness but stated that his chronic fatigue and weakness was caused by numerous medical conditions to include his chronic anemia. The VA examiner further stated that since there were numerous medical conditions such as chronic kidney disease, diabetes mellitus, cardiovascular disease, chronic pain, and gastrointestinal issues that causes similar signs and symptoms and the VA examiner could not solely rely on the Veteran's chronic anemia for the symptoms that he experiences. With regards to his radiculopathy pain, the December 2020 VA examiner attributed his left upper extremity radiculopathy to his cervical spine and his left lower extremity radiculopathy to his lumbar spine. With regards to his neuropathic pain, the December 2020 VA examiner stated it was more likely associated with his diabetes mellitus peripheral neuropathy. A May 2021 VA examiner also opined that he has multiple nonservice-connected medical and orthopedic conditions to include degenerative disc disease with radiculopathy of the cervical and lumbar spine, which can result in chronic pain and radicular pain. Additionally, his medical conditions such as diabetes mellitus, hypertension, hyperparathyroidism, anemia, vitamin D deficiency, and the orthopedic conditions can all contribute to fatigue. Further review of the medical evidence does not reflect a diagnosis of chronic fatigue syndrome. Because the Veteran's chronic pain and fatigue symptoms are attributed to other diagnosed disabilities, rather than a disorder in and of itself, service connection is not warranted for his chronic pain related to his radiculopathy and fatigue. While the medical evidence indicates that his chronic pain and fatigue are also attributable to his mental health conditions, the Board finds that his symptoms of fatigue are already contemplated under his rating for his PTSD. Specifically, the Veteran's July 2013, September 2020, and May 2021 contemplates the Veteran's report chronic sleep impairment. VA regulations state that symptoms such as fatigability may result from many causes, and the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. If the Veteran later claims service connection for any of the medical conditions identified as the cause of his chronic pain and fatigue, then all related symptoms of fatigue or chronic pain will be considered in the rating assigned to the respective disabilities. Although the Veteran initially believed he had a fibromyalgia disability, he later provided conflicting statements during December 2020 VA examination denying that he has any widespread migratory muscles, soft tissues pain, or aches. He also stated he was unaware why the claim for this condition was opened. To the extent that he believes he has a current fibromyalgia disability, he has not demonstrated that he has the required specialized knowledge or expertise to provide a diagnosis as to his fibromyalgia disability or a disability characterized by chronic pain and fatigue. As such, the Veteran is not competent to provide a diagnosis and his statements are not credible with respect to a diagnosis of fibromyalgia or a disability characterized by chronic pain or fatigue. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing evidence, the Veteran does not suffer from a fibromyalgia disability or a disability manifested by chronic pain and fatigue that is separate and apart from his numerous medical conditions which has largely not been service-connected. Thus, the preponderance of the evidence is against the Veteran's claim and service connection for a fibromyalgia or disability characterized by chronic pain and fatigue must be denied. 38 C.F.R. §§ 3.1, 3.102, 3.303. 3.317. 2. TDIU from December 6, 2013 3. Extraschedular consideration for a TDIU from November 9, 2010 to December 6, 2013 When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this situation, the Veteran's TDIU claim arise from his disagreement with the initial rating assigned to his PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder. As such, the relevant period on appeal is from November 6, 2010 to present. The Veteran seeks a TDIU. Specifically, he asserts that his PTSD prevents him from securing or following any substantial gainful employment because he is unable to concentrate and is constantly guarded. See April 2021 VA 21-8940 Form. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD with major depressive disorder, excoriation, and obsessive-compulsive disorder rated 70 percent; bilateral pes planus rated 50 percent; bilateral hearing loss rated 10 percent; tinnitus rated 10 percent; gastroesophageal disabilities to include Barrett's esophagus and GERD rated 10 percent; and erectile dysfunction rated as non-compensable. Based on the forgoing, the Veteran met the schedular rating criteria as of December 6, 2013, as he had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. With regards to the economic component for TDIU, the evidence reflects that he has been unemployed since 2009. Although he worked briefly in 2019, he quit that job and has remained unemployed. As to the non-economic component, the evidence reflects he graduated from high school and had two years of college education. Prior to service, he reported working in a clerical position at an industrial organization. During service, he served as a missile crewman, medic, and security guard. After service, he reported working as a plumber, deputy sheriffs, and as a lab technician at a pharmacy around 2001. More recently, he worked briefly as a greeter/security guard at a hospital in 2019. With consideration of the Veteran's previously held occupations, the Board finds that his ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral pes planus and bilateral hearing loss disabilities. As indicated in an April 2010 VA examination, a VA examiner stated that his hearing loss leads to difficulty hearing in noisy environments. A May 2011 and March 2014 VA examiner further opined that his hearing loss does affect his occupational activities. An August 2014 and August 2019 VA examiner also stated that his bilateral pes planus functionally impacts his ability to perform occupational activities as his foot deformity causes pain in his feet with prolonged walking or standing. Aside from the physical limitations from his disabilities, his ability to secure and follow a substantially gainful occupation is also impacted by the mental effects of his PTSD. As indicated in a May 2011 VA treatment record, he reported having intense intrusive thoughts, sleep disturbances with nightmares, anxiety, avoidance of trauma cues related to his military sexual assault, social isolation, anger, little interest and pleasure in doing things, and feeling numb and detached. A subsequent August 2011 VA examination reflects he does not trust people, limits his social interactions, and his hypervigilant. It was noted that these symptoms resulted in a moderate degree of impairment in social functioning and moderate degree of impairment of occupational functioning. In a January 2020 VA examination, he reported going back to work in 2019 and was able to get a job as a security professional at a hospital. However, he left the job because he felt overwhelmed, could not sustain the energy required to keep his eyes on people who may be a security threat. Again, in a September 2020 VA examination, he stated that he left his security guard job at the hospital because it was too stressful with too many demands. He also felt very claustrophobic and could not concentrate. In a more recent May 2021 VA examination, he stated that he was unable to keep up with his head count of people entering the emergency room and did not like people walking up or sitting behind him. Based on his report, the May 2021 VA examiner states he does exhibit minor symptoms of hypervigilance that appears to make him uncomfortable, and it is likely that he would not be comfortable in jobs which involves many people moving about or around him. Considering the Veteran's education and occupational history, the Board finds that it is unlikely that the Veteran would be able to obtain or maintain substantially gainful employment. The Veteran's previous occupation of a plumber, sheriff deputy, lab technician at a pharmacy, and security guards are occupations that would require that he engage in prolonged standing, walking, working around people, and prolonged concentration. Given the Veteran's physical and psychological limitations caused by his bilateral foot disability, hearing loss, and PTSD, it is unlikely that he would be able to perform the activities required by occupations as that of a plumber, sheriff deputy, pharmacy lab technician, or security guard. Accordingly, a TDIU is warranted from December 6, 2013, the date his service-connected disability ratings met the schedular rating criteria under 38 C.F.R. § 4.16 (a). The Board notes that the current grant of a TDIU does not encompass the entire period on appeal. From November 9, 2010 to December 10, 2013, his service-connected disabilities did not meet the schedular rating requirement under 38 C.F.R. § 4.16(a). However, a TDIU may still be assigned on an extraschedular basis in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. As such, and pursuant to the Board's May 2020 remand, it was recommended that if he did not meet the schedular criteria for TDIU, then the matter should be referred to the Director of Compensation Service. As the Veteran's TDIU claim was not granted at the VA regional office level, it was referred to the Director of Compensation Service. In July 2021 administrative review, it was determined that the Veteran's record did indeed reflect unemployability, but the record did not show that the reasons are solely due to his service-connected mental disabilities and/or his other service-connected maladies. Although the reviewer acknowledged that he experienced moderate to moderately severe disability due to his service-connected PTSD with minimal disability due to all other service-connected disabilities, his conditions alone were not so severe as to preclude all employment. In a September 2021 VA memorandum containing an advisory opinion, the Director of Compensation Service determined the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment. The Director of Compensation Service concluded that entitlement to extraschedular TDIU benefits was not established. The Board notes that it is not bound by an adverse determination by the Director regarding extraschedular entitlement to TDIU, which is in essence a decision by the agency of original jurisdiction reviewable de novo by the Board, and thus, no different than a RO's decision in terms of its effect on the Board's statutory jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2016). Despite the Director of Compensation's determination, the Board finds that a TDIU based on an extraschedular basis is warranted from November 9, 2010 to December 6, 2013. Aside from the Veteran's brief employment in 2019, he has been unemployed since 2009. Although the Veteran was treated for multiple medical conditions throughout this period, an April 2010 VA examiner noted that the magnitude of the Veteran's hearing loss would lead to difficulty hearing in noisy environments. With regards to his PTSD, his VA treatment records reflects on and off suicidal ideation reported as early May 2010. He consistently reported being hypervigilant and socially withdrawn throughout his VA treatment records and August 2011 VA examination. During the August 2011 VA examination, the Veteran reported being hypervigilant, limiting social interactions because he did not trust people, having difficulty controlling his anger, and sleep impairment. The August 2011 VA examiner ultimately stated that his symptoms resulted in moderate impairment in social functioning and occupational functioning. This supports a finding that his PTSD symptoms precluded him from obtaining or maintaining substantially gainful employment prior December 10, 2013. With consideration of the Veteran's limited education, skills, and previous work history, his hearing difficulty and PTSD symptoms consisting of being hypervigilant, socially withdrawn, uncontrolled anger, suicidal ideation, and sleep impairment would significantly reduce his ability to be reliable and productive in any employment setting prior to December 10, 2013. In sum, the Board finds that the Veteran has been unable to sustain substantially gainful employment for the portion of the appeal period from November 6, 2010 to December 10, 2013. As such, an award of TDIU on an extraschedular basis from November 6, 2010 to December 10, 2013 is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, Associate 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.