Citation Nr: 21025123 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-26 196 DATE: April 27, 2021 ORDER Entitlement to service connection for fibromyalgia, to include as secondary to service-connected depression with anxiety, is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s fibromyalgia did not manifest in service and is not otherwise related to service or to a service-connected disability. 2. The Veteran does not meet the schedular criteria for entitlement to TDIU, and his service-connected disabilities do not otherwise render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Fibromyalgia was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to December 1974, from May 1976 to January 1978, and from August 1979 to March 1980. He had additional service in the Puerto Rico Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and April 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge with respect to the claim for service connection for fibromyalgia. A transcript of the hearing has been associated with the record. In April 2016 and July 2019, the Board remanded the case for further development. That development was completed, and case has since been returned to the Board for appellate review. In June 2019, the Veteran submitted a motion requesting that his case be advanced on the docket; however, it appears that the Board has not yet issued a ruling on that motion. Appeals must be considered in docket number order, but may be advanced if good or sufficient cause is shown. The Veteran has not submitted any evidence in support of his motion. The Board finds that good or sufficient cause has not been shown and, therefore, the motion to advance the appeal on the Board’s docket is denied. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Fibromyalgia is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record, the Board finds the Veteran is not entitled to service connection for fibromyalgia. The Veteran’s available service treatment records do not document any complaints, treatment, or diagnosis of fibromyalgia. Moreover, the evidence shows that the Veteran was not diagnosed with fibromyalgia for many years after his military service. In fact, the evidence of record indicates that the Veteran did not start treatment for fibromyalgia until approximately 1998 or 2000, which was almost 20 years after he separated from service. See, e.g., March 1998 private treatment note, January 2001 VA treatment note, May 2015 Bd. Hrg. Tr. For these reasons, the Board finds that fibromyalgia did not manifest in service. In addition to the lack of evidence showing that fibromyalgia manifested during active service or within close proximity thereto, the weight of the probative evidence of record does not relate the current disorder to the Veteran’s military service or to his service-connected depression with anxiety. In March 2009 correspondence, a private physician noted that the Veteran had chronic myalgias with other symmetric tender points compatible with fibromyalgia. He opined that it was more probable than not that the Veteran’s fibromyalgia is connected to service because it started during service and continued to affect him. In an April 2013 private medical opinion, a private physician opined that the Veteran’s fibromyalgia was as most likely caused by or a result of posttraumatic stress disorder (PTSD). The physician stated that Israeli studies related the disorders. In a December 2013 private medical opinion, a private physician opined that the Veteran’s chronic anxiety symptomatology had created his physical symptoms. During a June 2016 VA examination, the Veteran related a history of fibromyalgia since 2000. He reported that he had diffuse widespread muscle pain. The VA examiner noted that there was no diagnosis of fibromyalgia noted in rheumatology treatment records from 2000 and that there was no mention of the condition or widespread muscular pain prior to this time, including during his military service. However, the VA examiner also noted that VA treatment records dated since 2000 mentioned fibromyalgia. On examination, the VA examiner found signs and symptoms of widespread musculoskeletal pain, stiffness, diffuse muscle weakness, fatigue, sleep disturbance, and headache. The examiner opined that the Veteran’s fibromyalgia was not caused by, a result of, or causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner noted that there were no symptoms of any fibromyalgia during the Veteran’s military service and that he was not diagnosed until 2000, which was 20 years after he separated from service. The examiner also opined that the Veteran’s fibromyalgia was not caused by, a result of, or proximately due to a psychiatric disorder. In addition, the examiner opined that there was no evidence of any aggravation either. The examiner stated that there was no medical evidence per UpToDate that fibromyalgia is caused by depression or anxiety. The examiner included an excerpt from UpToDate that reported that a number of observational and biologic studies suggest that chronic widespread pain and fibromyalgia have, in part, a genetic basis. The excerpt also indicated that the ability of some antidepressant drugs to improve symptoms suggested that genes involved in serotonin and/or catecholamine metabolic or signaling pathways might be candidates for conferring susceptibility. The excerpt summary noted that there was conclusive evidence that alterations in central nervous system pain processing are responsible for many of the features of fibromyalgia and that genetic and environmental factors likely interact to promote a state of chronic central and peripheral nervous system hyperirritability. In a January 2020 VA addendum opinion, the VA examiner noted that she had reviewed the March 2009, April 2013, and December 2013 private physicians’ statements and the claims file. She opined that it was not likely that any current fibromyalgia was caused by or aggravated by the Veteran’s service-connected depression with anxiety. She noted that the Veteran’s psychological disorders may coexist with fibromyalgia, but it did not mean that the psychological disorders caused or aggravated fibromyalgia. She again cited to UpToDate in her opinion. The UpToDate excerpt noted that several groups of disorders may occur in association with fibromyalgia more often than expected by chance alone, such as musculoskeletal pain in patients with chronic forms of arthritis, and sleep disturbance and fatigue in patients with depression, obstructive sleep apnea, or restless legs syndrome. The UpToDate excerpt also indicated that psychiatric disorders, including depressive disorders, anxiety disorders, and PTSD, are more prominent in fibromyalgia than in other rheumatic diseases. The excerpt stated that approximately 25 percent of patients with fibromyalgia have concurrent major depression, and 50 percent have a lifetime history of depression. The excerpt indicated that, in one report, 47 percent of fibromyalgia patients had a mood or anxiety disorder, 13 percent had a personality disorder, and 15 percent had bipolar disorder. The Board acknowledges that the Veteran has reported that he first developed fibromyalgia symptoms during his Army service. During the May 2015 hearing, the Veteran posited that fibromyalgia was not well known when he was in the service and that he was not diagnosed with it until after he separated service under the assumption that it started during his service due to his anxiety. Essentially, he contended that his fibromyalgia symptoms began when he started having problems with anxiety during service. See Bd. Hrg. Tr., pp. 9-10. He also reported that, after he separated from service, he began seeing a psychiatrist on a regular basis and that the psychiatrist was able to link the Veteran’s fibromyalgia symptoms to his anxiety disorder. Id. at 10. The Veteran stated that his fibromyalgia symptoms were initially misdiagnosed as chronic fatigue syndrome. He stated that he had symptoms of pain and insomnia in service that continued until he was first diagnosed with fibromyalgia in 2000. Id. at 15. However, as noted in the June 2016 VA examination report, there was no evidence of the condition or even widespread muscular pain prior to 1998, including during his military service. In addition, the diagnosis and etiology of fibromyalgia deals with an internal medical process that requires objective testing, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the June 2016 and January 2020 VA examiners have greater probative weight than the Veteran’s more general lay assertions. The examiners reviewed and considered the evidence of record, including the Veteran’s statements; relied on their own medical training, knowledge, and expertise; and provided a thorough rationale for the conclusion reached supported by evidence from medical journals and studies. The Board also acknowledges the private medical opinions finding that it was more probable than not that the Veteran’s fibromyalgia is connected to service because it started during service and continued to affect him in March 2009; that the Veteran’s fibromyalgia was as most likely caused by or a result of PTSD in April 2013; and that the Veteran’s chronic anxiety symptomatology had created his physical symptoms in December 2013. However, the Board finds that, after weighing the evidence of record, the VA examiners’ opinions are the most probative of record. The examiners VA provided medical opinions supported by a rationale and a discussion of the Veteran’s medical history. In addition, the VA medical examiners evaluated all of the evidence of record, to include the Veteran’s service treatment records, which did not document any signs or symptoms of fibromyalgia, including widespread muscle pain. The opinions are based on a factually accurate and complete premise. In contrast, the March 2009 and December 2013 private opinions were not supported by rationale. Indeed, the March 2009 private opinion did not explain the statement that the Veteran’s fibromyalgia started in service despite the fact that the service treatment records and post-service records do no support such a finding. The April 2013 private opinion also broadly cited to Israeli studies that confirmed a link between fibromyalgia and PTSD, but the specific studies were not identified, and the Veteran is not service-connected for PTSD. In addition, the January 2020 VA examiner addressed the deficiencies in the private opinions. Moreover, the VA examiner noted UpToDate information that suggested a prevalence of patients with fibromyalgia had psychiatric disorders; however, there was no evidence that psychiatric disorders caused or aggravated fibromyalgia. Thus, the private medical opinions are of limited probative value. For these reasons, the Board finds that the preponderance of the evidence is against finding that fibromyalgia was incurred in service and is not otherwise related to service or to a service-connected disability. As such, the benefit of the doubt rule does not apply, and the Veteran’s claim for service connection for fibromyalgia is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is service-connected for depression with anxiety, rated 50 percent disabling; duodenal ulcer disease with mild chronic gastritis, rated 10 percent disabling; mild deformity of the PIP joint of the left ring finger, rated noncompensable; and a faint scar on the right temple, rated noncompensable. His combined disability rating is 60 percent. Accordingly, because the Veteran does not have a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). It is recognized that the Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Statements dated from July 2001 to February 2004 indicate that the Veteran’s private physician recommended time off from work for rest due to his nonservice-connected fibromyalgia. In a March 2009 employment accomodation request, a private physician noted that the Veteran had chronic myalgias and that he presented with strong pain all over his body, especially in his lower extremities and back, and limitation of movement. The physician noted that the Veteran was unable to tolerate prolonged sitting or standing positions; he was unable to lift heavy things or bend; he had limited and painful active range of motion; and daily tasks at work caused him a lot of pain. In a June 2009 statement submitted in support of a Social Security Administration (SSA) disability claim, a private examiner noted that the Veteran had high blood pressure, fibromyalgia, hyperlipidemia, peptic ulcer disease, gastritis, and depression. The examiner requested that it be considered that the Veteran used to work as a mailing clerk at the post office and that he used to carry boxes that weighed at least 50 pounds. The examiner asserted that the available medical evidence in the case indicated that a “RFC for sedentary work could result in an allowance without the consultative examination.” In a July 2009 statement regarding a reasonable accomodation meeting, the United States Postal Service (USPS), indicated that the Veteran’s current position was a mailing requirements clerk. During the meeting, the Veteran presented medical evidence of his fibromyalgia, which caused pain throughout his body, and caused him to be unable to walk, stand, or sit. He stated that his legs would “fall asleep” from his knees to his ankles, causing him pain and rendering him unable to walk without an assistive device. He also indicated that he had applied for disability retirement and SSA benefits. Further, the Veteran stated that his permanent medical restrictions precluded him from performing work of any kind for the USPS. The USPS determined that the Veteran’s request for reasonable accomodation was denied because he was unable to perform the essential functions of his position with or without a reasonable accomodation. The Veteran was afforded a VA mental disorders examination in July 2018. The VA examiner opined that the Veteran’s depression with anxiety caused occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran retired from the USPS in 2009 on disability due to back issues and fibromyalgia. The examiner related that the Veteran’s major depressive disorder with anxiety was in the moderate range of dysfunction. He indicated that the Veteran’s symptoms did not prohibit him from performing the normal tasks and responsibilities associated within a full-time occupational or educational environment. In summary, the evidence does not show that the Veteran’s service-connected depression with anxiety, duodenal ulcer disease with mild chronic gastritis, mild deformity of the PIP joint of the left ring finger, and a faint scar on the right temple render him unable to secure or follow substantially gainful employment. Indeed, the evidence of record shows that the Veteran retired on disability due to his nonservice-connected fibromyalgia and back disorders. Moreover, the July 2018 VA examiner also found that the Veteran’s depression and anxiety symptoms did not prohibit him from performing the normal tasks and responsibilities associated within a full-time occupational or educational environment. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). Although the Veteran may have some degree of occupational impairment, that impairment is contemplated in the currently assigned evaluations. The Board notes that “[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. Therefore, the Board finds that the requirements for an extraschedular TDIU evaluation have not been met. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.