Citation Nr: 21008183 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 07-30 067 DATE: February 11, 2021 ORDER Effective July 21, 2020, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. For the period prior to July 21, 2020, entitlement to a TDIU is remanded. FINDING OF FACT From July 21, 2020, the Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW From July 21, 2020, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army Reserves from 1981 to approximately 1997 and had verified active military service from October 1990 to July 1991. These matters came to the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in June 2014; the transcript is of record. In February 2018, service connection for fibromyalgia and a low back disability were denied and a TDIU was denied. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2018 Joint Motion for Remand (JMR), the Board’s decision was vacated and remanded for action consistent with the JMR. The issues were remanded in June 2019. In an August 2019 rating decision, service connection was granted for degenerative disc disease/degenerative joint disease with spinal stenosis/spondylolisthesis lumbar spine, effective March 28, 2006. Service connection for fibromyalgia and entitlement to a TDIU were remanded in January 2020. The Board acknowledges that in July 2020 the Veteran submitted VA Form 20-0995 Supplemental Claim Application pertaining to, in pertinent part, service connection for fibromyalgia and entitlement to a TDIU in an attempt to opt into the Appeals Modernization Act (AMA); however, the ‘OPT-IN from SOC/SSOC’ box was not checked, which would have withdrawn the issues from the legacy appeals process. Per August 2020 correspondence, the Agency of Original Jurisdiction (AOJ) determined that his appeal would remain in the legacy appeal system. Entitlement to a TDIU 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. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Service connection is in effect for dermatitis (10% 04/15/2016; 60% 07/21/2020); major depressive disorder (40% 03/28/2006; 60% 07/21/2020); degenerative disc disease and degenerative joint disease with spinal stenosis and spondylolisthesis of the lumbar spine (10% 03/28/2006; 40% 07/21/2020); left lower extremity sciatic radiculopathy (20% 07/21/2020); and, scar, lumbar region (10% 04/15/2016). Thus, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) are met from July 21, 2020. Her combined rating is 50 percent from March 28, 2006 and 60 percent from April 15, 2016, and the TDIU schedular criteria are not met. See 38 C.F.R. § 4.16(b). The Board has determined that a TDIU is warranted effective July 21, 2020, as the evidence of record supports a finding that the Veteran has been unable to maintain gainful employment due to her service-connected disabilities. At her hearing in June 2014, the Veteran stated that she had to stop working in 1997 due to her depression. She tried working again in about 2013 as a nurse practitioner and realized her medical management skills had diminished. She was going to be terminated and resigned instead. 6/30/2014 Hearing Transcript at 13-14. The Veteran reported working at a medical office full-time as a nurse practitioner from 1987 to 1999; as an administrative assistant at a medical office for 4 to 6 hours per week from May to July 2011; and, as a psychiatric nurse full-time from February to May 2013. A November 2018 Mental Disorders Disability Benefits Questionnaire reflects the opinion of the examiner that her major depressive disorder resulted in total occupational and social impairment. The examiner opined that she has a separate disability of somatic symptom disorder which is being exacerbated by her major depressive disorder. A June 2019 C&P examiner opined that there was no evidence to support that her somatic symptom disorder is due to service. The examiner further clarified that the Veteran has Morgellon’s which is not a DSM-5 disorder but has components of both physical and mental health conditions. The examiner explained that Morgellon’s syndrome is a medical diagnosis with overlap in presentation with both delusional and somatoform symptoms. The examiner acknowledged the November 2018 opinion that medical symptoms worsened major depressive disorder but opined that it is likely an acute reaction during periods when the Morgellon’s was symptomatic. An August 2019 C&P examiner opined that there is no evidence in the Veteran’s medical records that suggest any association between the unspecified somatic symptoms and the major depressive disorder. The DSM-5 unspecified somatic symptoms are not caused by the major depressive disorder diagnosis. Neither the dermatitis nor the scars cause the unspecified somatic symptoms. The examiner opined that the unspecified somatic symptoms are less than likely than not proximately due to the result of major depressive disorder, recurrent, dermatitis and scars. An October 2019 Employability Evaluation reflects the opinion that based on medical evidence, lay evidence, and vocational interview that the Veteran is unable to secure and follow substantially gainful employment due to her service-connected disabilities. Specifically, her lumbar spine limits the Veteran from sitting, standing and walking for any period of time. Her distrust of others, hypervigilance, isolative behaviors, and irritability affect her ability to maintain employment. Her memory and concentration issues significantly impact her ability to learn and retain task instructions. Affording the Veteran the benefit of the doubt, the Board finds evidentiary support to conclude that her service-connected disabilities preclude substantially gainful employment from July 21, 2020. The combined effects of the symptomatology associated with her major depressive disorder and her lumbar spine disability with associated radiculopathy, left lower extremity, affect her ability to maintain gainful employment, as she is unable to consistently function in an industrial capacity due to her symptomology. Thus, for the above reasons, entitlement to a TDIU is granted from July 21, 2020, which corresponds to the date her disabilities meet the schedular criteria for a TDIU. The period prior to July 21, 2020 is addressed in the Remand below. REASONS FOR REMAND Fibromyalgia In March 2020 a C&P examiner reviewed the claims folder and opined that the Veteran had fibrositis in 1986, which is prior to her active duty period. No line of duty is found in available in the records for fibrositis in 1986 during reserves. Per records, she was on Clinoril for her fibrositis. Clinoril is indicated for joint paints and aches. Active duty notes dated in 1990 reference a history of fibrositis and IBS. Based on literature, fibrositis was an initial term for fibromyalgia. 1990 rheumatology criteria defined the condition of fibromyalgia to include that of fibrositis but added more symptoms including IBS. That the Veteran had fibrositis and a history of IBS/migraines prior to 1990 Rheumatology Criteria, makes a diagnosis of fibromyalgia in 1986 (versus the older limited term of fibrositis) as least likely as not. This would make the condition of fibromyalgia a pre-existing condition. While on active duty, the Veteran had some symptoms of fibromyalgia. However, there is no evidence of permanent aggravation. The Veteran’s body aches were associated with flu and her abdominal pain was evaluated and she was found to have gastritis. The Veteran’s active duty elbow, ankle pain is more indicative of joint injury (as diagnosed) not fibromyalgia. Per literature: ‘pain from muscle may be confused with pain arising from other deep structures such as joints and testis.’ In summary, the Veteran’s 1986 diagnosis of fibrositis/fibromyalgia was a pre-existing condition as no line of duty is evident prior to the 1990 active duty period. While on active duty, there was no evidence of permanent aggravation of the pre-existing fibrositis/fibromyalgia. It was not until 1997 when muscle aches began to be chronic with rheumatology assessment in 2000 indicating muscle aches for three years. This is more than one year after active duty. No disease specific care (DSC) or permanent aggravation by active duty nexus is plausible. The March 2020 examiner opined that fibromyalgia at least as likely as not was a pre-existing condition. The proper standard is whether there is clear and unmistakable evidence that there is a pre-existing disease or disorder; and, whether there was clear and unmistakable evidence that there was no increase in disability during service or an increase was due to the natural progression of the condition. An addendum opinion must be sought using the proper standard. TDIU prior to July 21, 2020 Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Presently, the Board notes that for the period prior to July 21, 2020, the Veteran’s service-connected disabilities fail to meet the percentage standards set forth in § 4.16(a). VA’s policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (“On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.”). The 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 the Veteran’s level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran’s non-service-connected disabilities and her advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board’s task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). As detailed hereinabove, the Veteran asserts that she has not been able to work since prior to March 28, 2006 (the current effective date for her service-connected disabilities) due to her service-connected disabilities. The October 2019 vocational expert opined that the Veteran was unable to maintain substantially gainful employment due to her service-connected disabilities since March 28, 2006. In light of the Veteran’s lay assertions and the October 2019 opinion, opinions should be sought as to the effects of her psychiatric disability and lumbar spine disability on her ability to function in an employment capacity, and the TDIU matter should be submitted to the Director, Compensation Service, for extraschedular consideration per § 4.16(b). On Remand, the Veteran’s employers should be contacted to verify the Veteran’s reported employment. The matters are REMANDED for the following actions: 1. Contact the Veteran’s employers identified in the VA Form 21-8940 and request verification of her employment and her purpose for leaving her position. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request that March 2020 C&P examiner (or another qualified clinician if the March 2020 examiner is unavailable) review the claims folder and provide opinions as to the following: a) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s fibromyalgia pre-existed service; b) If so, whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing fibromyalgia was not aggravated (i.e. permanently worsened) during service, or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress of the disease. c) If it is not clear and unmistakable both that fibromyalgia preexisted service and was not aggravated therein, then the examiner should opine as to whether any fibromyalgia disability at least as likely as not (a probability of 50 percent or greater) had its onset in, or is otherwise related to the Veteran’s period of active duty service. A complete rationale for all opinions must be provided. 3. Request that a VA psychiatrist or psychologist review the claims folder and describe the functional effects of the Veteran’s major depressive disorder, to include how such effects would impact her functioning in any employment capacity, for any period from March 28, 2006 to July 20, 2020. The examiner should attempt to distinguish the symptomatology and effects associated with her service-connected major depressive disorder, and any symptomatology or effects associated with a nonservice-connected psychiatric disability. 4. Request that an examiner with appropriate expertise review the claims folder and describe the functional effects of the Veteran’s lumbar spine disability and associated radiculopathy, left lower extremity, to include how such effects would impact her functioning in any employment capacity, for any period from March 28, 2006 to July 20, 2020. (Continued on the next page)   5. For the period from March 28, 2006 to July 20, 2020, refer the Veteran’s claim for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether her service-connected disabilities (dermatitis 10% 04/15/2016; 60% 07/21/2020; major depressive disorder 40% 03/28/2006; 60% 07/21/2020; degenerative disc disease and degenerative joint disease with spinal stenosis and spondylolisthesis of the lumbar spine 10% 03/28/2006; 40% 07/21/2020; left lower extremity sciatic radiculopathy 20% 07/21/2020; and, scar, lumbar region 10% 04/15/2016) preclude the Veteran from participating in gainful employment for any period. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.