Citation Nr: 21022983 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-18 727A DATE: April 19, 2021 ORDER Service connection for fibromyalgia is denied. A rating in excess of 20 percent for left lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s fibromyalgia did not have its onset in service, and the multiple joint/muscle pain are manifestations of other disabilities. 2. The Veteran’s left lower extremity radiculopathy has not been productive of moderate incomplete paralysis of the sciatic nerve. 3. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have not been met. 38 C.F.R. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. Diagnostic Code (DC) 8520. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1980 to April 1981 and from September 1990 to May 1991, including service in Southwest Asia. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2018. This case was previously remanded by the Board in a May 2018 decision for further development. The Board remanded the claim to service connection for bilateral hearing loss in May 2018 to afford the Veteran a VA examination to address the etiology of his hearing difficulties. Subsequently, the Veteran was granted bilateral hearing loss with an evaluation of 0 percent, effective June 11, 2013. See November 2019 Rating Decision. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 1. Service connection for fibromyalgia The Veteran contends that he is entitled to service connection for his claimed fibromyalgia. In the May 2018 Board decision, the Board held that the fibromyalgia claim must be remanded to ascertain whether the Veteran presently suffers from the condition. A May 2014 VA Examination both indicated that the Veteran suffers from fibromyalgia, but then concluded that the Veteran does not fibromyalgia. The VA examiner explained that the Veteran’s symptoms could all be caused by other conditions, while at the same time indicating that fibromyalgia would also explain them. As the record was ambiguous as to whether the Veteran has a fibromyalgia diagnosis, the Board remanded for a clarifying opinion or a new examination. See May 2018 BVA Decision. The Veteran was afforded a post-remand VA examination for fibromyalgia in October 2018. The exam concluded that the Veteran does not presently have or has ever been diagnosed with fibromyalgia. The VA examiner opined that the Veteran’s medical records are silent in reference to fibromyalgia. The Veteran has multiple conditions that may cause muscle pain, joint pain as well as sleep disturbances including: degenerative arthritis (back, knees and shoulder pain), PTSD with associated long term sleep disturbances, depression (multifactorial), anxiety (multifactorial), poly drug abuse (alcohol, cannabis, cocaine), hepatitis C and radicular symptoms. The VA examiner concluded that the Veteran does not have a diagnosis of fibromyalgia and therefore it is less likely as not the condition was incurred in or caused by active duty service. In light of the probative negative medical nexus opinion provided by the examiner in the October 2018 VA examination, the lack of medical evidence showing that the fibromyalgia’s onset was in service, or was caused or aggravated by service, or manifested to a compensable degree within one year of presumptive period following military discharge, service connection for fibromyalgia is not warranted. Because the preponderance of the evidence is against this service connection claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for fibromyalgia must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy The Veteran contends that he is entitled to an increased rating for his left lower extremity radiculopathy. Service connection is in effect for left lower extremity radiculopathy at 20 percent disabling, pursuant to DC 8520. In the May 2018 Board decision, the Board noted that the Veteran’s August 2013 VA examination initially indicates that his radiculopathy results in moderate symptomatology, but the examiner’s opinion reflects that the radiculopathy causes a severe functional impact on the Veteran’s employability. As the Board was unable to reconcile the discrepancy, a new examination was requested upon remand. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for “mild” includes not very severe. WEBSTER’S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for “mild” is “slight” and definitions for “slight” includes small in size, degree, or amount. Id. at 1038. The definitions for “moderate” includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” includes extremely intense. Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” In the October 2018 VA Peripheral Nerves Condition examination, the Veteran was noted to have severe intermittent pain, mild paresthesias and/or dysesthesias, and severe numbness in the left lower extremity. Muscle strength upon testing was normal. Sensation testing for light touch also revealed normal results. The left lower extremity was diagnosed as moderate incomplete paralysis. There was no additional functional impairment of an extremity noted. Here, the Board finds that a higher rating in excess of 20 percent is not warranted for Veteran’s left lower extremity radiculopathy as the medical evidence from the October 2018 VA examination shows that the manifestations of the Veteran’s radiculopathy have been wholly sensory, and “moderate” in nature at best. Therefore, the left lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. Thus, a rating in excess of 20 percent for lower left extremity radiculopathy is not warranted under DC 8520. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to work due to his service-connected bilateral back, radiculopathy, and irritable bowel syndrome conditions. See March 2011 and April 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. In the Veteran’s September 2011 Peripheral Nerves examination, it was noted that the condition impacts his ability to work as he has considerable weakness at low extremities, more on the left leg than the right leg as he cannot stand straight without support from a walking cane. In the Veteran’s August 2013 Back examination, the examiner concluded that the Veteran at present is unemployable, while the August 2013 Peripheral Nerves examination concluded that his neuropathy has a severe impact on any type of employment. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). 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; 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran’s service-connected disabilities consist of the following: depression and PTSD at 50 percent disabling, irritable bowel syndrome at 30 percent disabling, left lower extremity radiculopathy at 20 percent disabling, left shoulder osteoarthritis at 20 percent disabling, right shoulder osteoarthritis at 20 percent disabling, residuals of disc herniation at 20 percent disabling, residuals of disc herniation at 10 percent disabling, scars secondary to spine surgery at 10 percent disabling, left knee arthritis at 10 percent disabling, right knee arthritis at 10 percent disabling, and bilateral hearing loss at 0 percent disabling. The Veteran’s combined evaluation for compensation is 90 percent. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). At his March 2018 Board hearing, the Veteran testified that he has not been working for several years due to his disabilities, as his last job was as a fast-food restaurant manager approximately 4-5 years prior. He stated that he struggles to meet his bills and frequently resorts to borrowing food and/or money from his children. Veteran has a 10th grade education and obtained his GED. He also testified that his IBS impacts his ability to get a job and keep a job due to the manifestations and symptoms of his condition, especially the flare-ups occurring spontaneously and resulting in intense pain. In his filed VA Form 21-8940, the Veteran indicates that he last worked full-time in December 2013, and that is when he became too disabled to work. He marks that he had been under a doctor’s care and/or hospitalized within the past 12 months, earned no income over the previous 12 months, had a high school education and no other education or training. See April 2018 VA Form 21-8940. The Board also acknowledges that while the October 2018 Peripheral Nerves VA examination held that a sedentary stress-free work environment that allows for scheduled breaks would best accommodate the Veteran’s service-connected disabilities, the examination also noted that Veteran has functional limitations in prolonged sitting, standing, walking and stair climbing that impact his ability to work and he reported radicular symptoms 2-3 times a week lasting from 2 hours to 24 hours. Additionally, his bilateral shoulder conditions impact his ability to life, push and pull with repetitive use and also impacts his ability to perform occupational tasks. See October 2018 VA Shoulders Examination. In support of his claim to a TDIU, the Veteran also submitted a letter from a certified rehabilitation counsel in September 2014. The counselor opined that, based on a reasonable degree of vocational certainty, the Veteran would not be able to provide an annual income of $10,210 to $11,670, the threshold required to qualify for substantial gainful employment. The counsel explained that Veteran does not have transferrable skills to sedentary work and he is unemployable in the national economy and his “symptoms of depression, anxiety, suspiciousness, panic attacks, chronic sleep impairment or mild memory loss” eliminate employment in general. See September 2014 Medical Treatment Record. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran’s service-connected disabilities prevents him from securing or following substantially gainful employment. As the Veteran meets the requirements under 38 C.F.R. § 4.16 (a), is not currently working, and the evidence supports that the Veteran’s service-connected disabilities prevent him from securing or following substantially gainful employment, the Board finds that entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.