Citation Nr: 21024282 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-51 854 DATE: April 22, 2021 REMANDED Entitlement to an initial rating higher than 20 percent for fibromyalgia from February 9, 2005 to April 8, 2018 is remanded. Entitlement to an initial rating higher than 10 percent for irritable bowel syndrome from February 9, 2005 to March 5, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from May 1981 to May 1984, and from October 1990 to May 1991. In connection with this appeal, the Veteran testified at a hearing before the undersigned in September 2019. A transcript of that hearing is of record. While the Veteran’s representative was not present for the hearing, the Veteran voluntarily and knowingly chose to proceed with the hearing. The issues on appeal arise from the Veteran’s claim received on February 9, 2005. The Board in December 2019 granted an initial rating of 20 percent for fibromyalgia from February 9, 2005 to April 8, 2018 and denied an initial rating higher than 10 percent for irritable bowel syndrome prior to March 5, 2015. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In the November 2020 Joint Motion for Partial Remand (herein after Joint Motion), the parties requested that the December 2019 Board decision be vacated insofar as it denied the issues of entitlement to an initial rating higher than 20 percent for fibromyalgia from February 9, 2005 to April 8, 2018 and an initial rating higher than 10 percent for irritable bowel syndrome prior to March 5, 2015; and, failed to address the issue of entitlement to a total disability rating based on individual unemployability (TDIU), which was reasonably raised by the evidence of record. The Court granted the motion for a partial remand. Issues 1-3: Entitlement to an initial rating higher than 20 percent for fibromyalgia from February 9, 2005 to April 8, 2018; entitlement to an initial rating higher than 10 percent for irritable bowel syndrome from February 9, 2005 to March 5, 2015; and, entitlement to TDIU is remanded. The parties to the November 2020 Joint Motion found that the Board provided inadequate reasons and bases for denying higher ratings. The parties instructed the Board to reexamine the evidence of record and seek any other evidence the Board felt was necessary. As for the issue for an initial rating higher than 20 percent for fibromyalgia from February 9, 2005 to April 8, 2018, they found that the Board failed to explain the level of resistance to treatment that qualified as refractory. They noted that under Diagnostic Code 5025 a 40 percent rating is warranted for fibromyalgia that is constant, or nearly so, and refractory to therapy. The parties pointed out that on VA examination in May 2017 the Veteran was not undergoing treatment but self-treated with Ibuprofen and Naproxen occasionally when there were severe flare-ups. On July 2012 VA examination it was noted that the Veteran stopped his treatment with Celexa and Elavil since 2009. On VA examination in December 2003 the Veteran had daily chronic pain and in November 2005 he was prescribed Darvocet for breakthrough pain. In January 2007 the Veteran’s wife submitted a letter describing his pain, which interfered with his ability to get out of bed and walk down the stairs. February 2015 and November 2017 treatment records show the Veteran had pain without relief. Furthermore, the parties found that the August 2015 VA examination showing that the Veteran’s disability was not refractory to treatment was inadequate as it was not supported by a detailed rationale. As for the issue for an initial rating higher than 10 percent for irritable bowel syndrome from February 9, 2005 to March 5, 2015 the parties noted that under Diagnostic Code 7319 irritable bowel syndrome results in severe symptoms if it includes diarrhea and constipation with more or less constant abdominal distress. They pointed out that the Veteran in May 2005 reported having painful spams with defection, in December 2005 daily diarrhea, in January 2007 daily irritable bowel symptoms, and in March 2007 daily loose bowel movements. During the appeal period on VA examination in May 2017 the examiner found that the Veteran took medications for his fibromyalgia and his symptoms were not refractory to the therapy. As for irritable bowel syndrome on the August 2012 VA examination the examiner noted that the Veteran had diarrhea and vomiting, however the examiner determined that the Veteran did not have episodes of bowel disturbance with abdominal distress. Thus, on remand VA opinions should be obtained to reconcile the inconsistent findings discussed above and to comply with the directives of the November 2020 Joint Motion. As for the issue of entitlement to TDIU, the parties to the Joint Motion determined that the Board failed to address whether TDIU was raised by the evidence. They noted that the Veteran during his hearing reported that worked at the United States Postal Service (USPS) until 2005 and then returned to a different USPS office in 2015. In between those stints, they pointed out that on VA examination in June 2012 the Veteran reported that he worked for a flooring company from 2005 to 2009 and then he opened his own business from 2009 to about 2015 where he worked less than 10 hours per week and hired other people to do the work. The parties also found it significant that medical records including in March 2004 show the Veteran missed a lot of days from his job due to pain. Records in August 2007 show the Veteran was unemployed due to pain. As discussed above, in the instant case TDIU is an inferred claim and the Veteran should be provided with a formal TDIU application (VA Form 21-8940). Further, the Veteran’s employment status during the appeal period is unclear. Thus, on remand the Agency of Original Jurisdiction also should pursue the appropriate development of the Veteran’s entitlement to TDIU, to include verification of the Veteran’s employment status during the appeal period. The matters are REMANDED for the following action: 1. Obtain any outstanding medical records, VA or private. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Afterwards obtain an opinion from an appropriate examiner regarding the level of severity of the Veteran’s service-connected fibromyalgia from February 9, 2005 to April 8, 2018. After reviewing the claims folder the examiner is asked to do the following: Opine whether during the period from February 9, 2005 to April 8, 2018 the Veteran’s fibromyalgia symptoms were refractory to therapy. In rendering the opinion the examiner is asked to consider the evidence of record to include the following: on VA examination in May 2017 the Veteran was not undergoing treatment but self-treated with Ibuprofen and Naproxen occasionally when there were severe flare-ups; on July 2012 VA examination it was noted that the Veteran stopped his treatment with Celexa and Elavil since 2009; on VA examination in December 2003 the Veteran had daily chronic pain and in November 2005 he was prescribed Darvocet for breakthrough pain; in January 2007 the Veteran’s wife submitted a letter describing his pain, which interfered with his ability to get out of bed and walk down the stairs; and in February 2015 and November 2017 treatment records show the Veteran had pain without relief. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 3. Obtain an opinion from an appropriate examiner regarding the level of severity of the Veteran’s service-connected irritable bowel syndrome from February 9, 2005 to March 5, 2015. After reviewing the claims folder the examiner is asked to do the following: Opine whether during the period from February 9, 2005 to March 5, 2015, the Veteran’s irritable bowel syndrome was manifested with more or less constant abdominal distress. To the extent possible the examiner is asked to reconcile the following inconsistent findings: on VA examination in August 2012 it was determined that the Veteran had diarrhea and vomiting without episodes of bowel disturbance with abdominal distress; however, the Veteran in May 2005 reported having painful spams with defection, in December 2005 daily diarrhea, in January 2007 daily irritable bowel symptoms, and in March 2007 daily loose bowel movements. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 4. Take all necessary steps to develop the claim of entitlement to TDIU, to include providing the Veteran with a VA Form 21-8940 and determining his employment status during the appeal period, including from February 9, 2005 to the present. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.