Citation Nr: 21016106 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-30 737 DATE: March 19, 2021 ORDER Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s fibromyalgia is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2009 to August 2010. She served in Afghanistan and received a Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 and March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. Service Connection 1. Entitlement to service connection for fibromyalgia The Veteran claims her fibromyalgia is related to service in Afghanistan. Specifically, during the August 2020 Board hearing, she testified to being on tower guard for 62 days dressed in battle rattle gear for 12 to 14 hours a shift. The gear weighed approximately 70 to 100 pounds. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Specific presumptive service connection is available to Veterans who served during the Persian Gulf War and exhibit objective indications of a qualifying chronic disability that manifested during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. See 38 U.S.C. § 1154 (West 2014); 38 C.F.R. § 3.317(a)(1). For the purposes of presumptive service connection based upon the Persian Gulf War, Southwest Asia refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 U.S.C. § 1117, 1118 (West 2014); 38 C.F.R. § 3.317(e). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) for March 2010 note injury to shoulders, back, hips, ankles, and knees from wearing full battle rattle for tower guard from December 2009 to March 2010. An April 2017 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. She was diagnosed with fibromyalgia. The examiner opined “it is less likely as not that the Veteran has a diagnosis of fibromyalgia incurred in or caused by service as referenced by the complaints of joint pain in March/April 2010 therein.” It was reasoned “no diagnosis of fibromyalgia was rendered in service, nor in March/April 2010. The medical documentation provided [is] insufficient to render a diagnosis of fibromyalgia in service or in March/April 2010.” In July 2017 the Veteran submitted a private opinion from M.I., M.D. The doctor found the Veteran had “exemplary health prior to her service, sustained physical and psychological damage during a service that is not resolved, it is my conclusion that the PTSD, fibromyalgia and multiple somatic complaints are all service-connected.” It was noted, the Veteran wore heavy gear while working as a tower guard and suffered military sexual trauma while deployed in Afghanistan. In March 2018 VA treatment records fibromyalgia was listed as an active problem. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran’s fibromyalgia is related to service. Initially, the Board notes, fibromyalgia is considered a qualifying chronic disability under 38 C.F.R. § 3.317; however, the Veteran served in Afghanistan, which is not considered Southwest Asia for purposes of presumptive service connection. Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case the Veteran provided a positive July 2017 private opinion finding the fibromyalgia is directly related to service as the Veteran suffered pain from wearing the battle rattle gear while working as a tower guard. To the contrary, the April 2017 VA examiner based the opinion on a lack of in-service diagnosis. The absence of an in-service diagnosis of a condition to include, fibromyalgia is not dispositive; the question is whether the Veteran’s fibromyalgia disability is related to service. Furthermore, the examiners reliance on the absence of evidence in service is an inadequate rationale. The Board finds the private opinion more persuasive then the VA opinion as the private opinion is conclusively stated with an adequate rationale. The standard of certainty under VA law is not absolute certainty. The standard is a probability of at least 50 percent. Furthermore, the Veteran’s lay testimony, the private opinion, and the STR’s in March 2010 note multiple joint pain as a result of her tower work. The Board finds that the evidence in favor of the claim is in relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the Veteran, the Board concludes that service connection for fibromyalgia is warranted. REASONS FOR REMAND In April 2015 the Veteran submitted a VA 21-8940 for (application for TDIU). The Board notes the Veteran is service-connected for PTSD rated at 30 percent effective August 22, 2010 and 70 percent effective October 31, 2014; hysterectomy rated at 100 percent effective August 22, 2010 and 30 percent effective July 1, 2011; right shoulder impingement rated at 10 percent effective August 22, 2010 and rated at 20 percent effective March 29, 2018; left shoulder impingement rated at 10 percent effective August 22, 2010 and rated at 20 percent effective March 29, 2018; Arthritis of the spine evaluated at 10 percent from August 22, 2010 and 20 percent from March 29, 2018; right lower radiculopathy rated at 20 percent effective March 29, 2018; left lower radiculopathy rated at 20 percent effective March 29, 2018; GERD rated at 10 percent effective August 22, 2010; and a left foot condition rated at noncompensable effective August 22, 2010, 100 percent effective August 26, 2011, and noncompensable effective October 1, 2011. For the rating period on appeal the total combined disability rating is 70 percent from October 1, 2011, 90 percent effective October 31, 2014, and 100 percent effective March 29, 2018. The Veteran did not have a single disability rated at 60 percent or 40 percent for the appeal period prior to October 31, 2014. However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, consideration for TDIU on an extraschedular basis may be referred to the Director of the Compensation Service when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected impairments under 38 C.F.R. § 4.16(b). The evidence indicates the Veteran has not been employed since 2012 due to service-connected disabilities. Specifically, a July 2017 private opinion noted the Veteran’s condition is sufficiently severe that she is unable to engage in gainful employment based on the length of her symptom complex, the severity of her symptoms, and its severe impact on her life and family. It was noted, her sleep is disrupted, and her pain limits her ability to rest, exercise, and perform activities of daily living. This decision grants service connection for fibromyalgia. The implementation of this grant (i.e., the rating assigned) could impact the TDIU claim. Accordingly, this issue is deferred. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Implement the decision above granting service connection for fibromyalgia and assign a disability therefor. 2. Reassess eligibility for a TDIU based on all of her service-connected disabilities, to include consideration of referral to the Director of Compensation Services for extraschedular TDIU for the appeal period prior to October 31, 2014. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.