Citation Nr: 21013281 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-18 625 DATE: March 9, 2021 ORDER Entitlement to an increased rating in excess of 40 percent disabling for service-connected fibromyalgia is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities TDIU is remanded. Entitlement to special monthly compensation based on aid and attendance is remanded. FINDINGS OF FACT Service-connected fibromyalgia has been assigned the maximum schedular rating under Diagnostic Code 5025, and the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected fibromyalgia is inadequate. CONCLUSIONS OF LAW The criteria for an increased rating in excess of 40 percent disabling for service-connected fibromyalgia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5025 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1983 to January 1994. Unfortunately, the Veteran passed away during the course of the appeal in March 2013. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota and Denver, Colorado, which denied entitlement to an increased rating for fibromyalgia in excess of 10 percent disabling and entitlement to special monthly compensation based on aid and attendance, as well as entitlement to a TDIU, respectively. In February 2015, the Appellant and her daughter participated in an informal conference with a Decision Review Officer (DRO). A copy of the DRO report of informal conference has been associated with the record. Entitlement to an increased 40 percent rating for service-connected fibromyalgia was granted, effective August 27, 2009, in an April 2015 rating decision. While a 40 percent rating is the maximum schedular rating allowable for service-connected fibromyalgia under Diagnostic Code 5025, the Board finds that this was only a partial grant of the benefits sought on appeal where entitlement to an extraschedular rating is still pending on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This matter was previously before the Board in August 2018, in which the claims were for remanded for a VA addendum opinion to address entitlement to a TDIU and special monthly compensation based on aid and attendance. Additionally, the claims were remanded for a Board hearing, which was requested by the Appellant in a November 2017 VA Form 9. The Appellant was afforded a videoconference hearing with the undersigned VLJ in December 2020. A copy of the hearing transcript has been associated with the record. The claims are again before the Board, however, the Board finds that additional remand is necessary prior to rendering decisions on the claims of entitlement to a TDIU and special monthly compensation for aid and attendance. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Increased Rating 1. Entitlement to an increased rating in excess of 40 percent disabling for service-connected fibromyalgia As discussed above, service-connected fibromyalgia is rated 40 percent disabling. Fibromyalgia refers to widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel syndrome, 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, Diagnostic Code 5025. The maximum 40 percent rating under Diagnostic Code 5025 is warranted if the symptoms are constant or nearly constant, and are refractory to therapy. Id. A Note to Diagnostic Code 5025 provides that 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. Id. A schedular rating higher than 40 percent is not permitted under Diagnostic Code 5025. As Diagnostic Code 5025 directly addresses fibromyalgia, there is no need to rate the claim by analogy. The Board must also consider whether an increased rating is warranted on an extraschedular basis. The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for service-connected fibromyalgia is inadequate. Rather, the Board finds that the Veteran’s symptoms, during his lifetime, and the severity of such, are contemplated by the rating criteria. Diagnostic Code 5025 contemplates medication use, episodic and exacerbated periods, as well as constant symptoms. This covers many if not all aspects of the level of severity and frequency, and the Appellant has not identified any other level. Moreover, Diagnostic Code 5025 contemplates a wide range of symptoms, specifically, stiffness, which is the primary characterization of the Veteran’s service-connected condition. Diagnostic Code 5025 also notes irritable bowel symptoms, and depression, anxiety and sleep disturbance, which are contemplated, and the Veteran is also separately service connected for a psychiatric disability that contemplates depression. Diagnostic Code 5025 also lists symptoms pertaining to musculoskeletal pain and tender points, fatigue, paresthesias, headaches, and Renaud-like symptoms. The Appellant and her representative have not identified other symptoms related to this service-connected condition that are not contemplated by Diagnostic Code 5025. Furthermore, any “effects” of the symptoms that may not be listed are nevertheless contemplated by their underlying symptoms. See, e.g., Doucette v. Shulkin, 28 Vet. 366 (2017). The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran did not exhibit other related factors such as those provided by the regulation as “governing norms.” The record does not show that the Veteran had required frequent hospitalizations for fibromyalgia. There is also no persuasive evidence in the record to indicate that the service-connected fibromyalgia would cause any impairment with employment, such as “marked interference”, over and above that which is already contemplated in the assigned schedular ratings. Thun, 22 Vet. App. at 115. In this regard, the Board recognizes that the Veteran was unemployed. However, multiple pieces of evidence from various sources have noted that the Veteran’s unemployability is related to service-connected mood disorder, only. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321 (b)(1) is not warranted. In sum, the preponderance of the evidence is against a rating in excess of 40 percent for service-connected fibromyalgia. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND 2. Entitlement to a TDIU 3. Entitlement to special monthly compensation based on aid and attendance Within an August 2018 Board remand, the Board requested for a VA addendum opinion to determine the effect of the Veteran’s service-connected disabilities on his ability to obtain and retain substantially gainful employment. The Board also requested for an opinion to determine whether the Veteran required regular aid and attendance of a caregiver due to his service-connected disabilities. In October 2018, a VA addendum opinion was obtained which indicated that there was no objective medical data whatsoever to support any contention that in absence of service-connected left foot fracture, neck fracture and thoracolumbar stenosis that the Veteran’s employment would ever have been impaired. While the VA examiner listed service-connected mood disorder as a service-connected disability at the time of the Veteran’s death, the examiner did not discuss or opine as to whether service-connected mood disorder hindered the Veteran from obtaining and retaining employment prior to his death and/or requiring regular aid and attendance. Within a December 2020 videoconference hearing, the Appellant, through her representative, testified that entitlement for TDIU should be granted based on service-connected mood disorder, alone, and not due to service-connected physical disabilities. The Board finds that prior to rendering a decision on the appeal, remand for a VA addendum opinion is required to obtain substantial compliance with the August 2018 Board remand directives, especially given December 2020 hearing testimony, to determine the effect of the Veteran’s service-connected psychiatric disability on his ability to obtain and retain substantially gainful employment and whether he required regular aid and attendance of a caregiver due to his service-connected psychiatric disability. Stegall, 11 Vet. App. 271. The matters are REMANDED for the following action: 1. The claims file should be provided to an appropriate examiner for an opinion in connection with the Appellant’s claim for entitlement to a TDIU and special monthly compensation based on aid and attendance. The examiner must note that a file review was completed in the examination report. The examiner is asked to determine whether, during his lifetime, the Veteran’s service-connected mood disorder hindered him from obtaining and retaining substantially gainful employment and/or regularly necessitated the aid and attendance of a caregiver. The examiner should document any reported education and work experience and describe the functional impairment caused solely by the Veteran’s service-connected mood disorder. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 2. After completing the above, and any other development as may be indicated, the Appellant’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.