Citation Nr: 21025523 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-35 246A DATE: April 28, 2021 ORDER 1. Entitlement to service connection for fibromyalgia is granted. 2. Entitlement to an increased rating of 70 percent, but no higher, for dysthymia is granted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran’s fibromyalgia began during active service. 2. For the entire period on appeal, the Veteran’s dysthymia manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an increased rating of 70 percent, but no higher, for dysthymia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 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 in the United States Air Force from July 1983 to January 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. The Board notes from February 2021, the Veteran is in receipt of a 100 percent combined disability rating. The Board also finds that the appeal raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) 1. Entitlement to service connection for fibromyalgia is granted. The Veteran contends his fibromyalgia began during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a current diagnosis of fibromyalgia. See generally VA treatment records. Service treatment records (STRs) show the Veteran requesting a fibromyalgia workup. See December 2006 STR. In addition, the Veteran was diagnosed with chronic pain syndrome in service. A January 2021 VA doctor noted that fibromyalgia is a type of chronic pain disorder and concluded that after a review of the Veteran’s records the fibromyalgia was a chronic existing condition prior to discharge. As the evidence shows the Veteran’s fibromyalgia began during service and has continued since service, and there is no evidence that it is attributable to an intercurrent cause, the claim of entitlement to service connection for fibromyalgia is granted. 2. Entitlement to an increased rating of 70 percent, but no higher, for dysthymia is granted. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to an increased rating in excess of 30 percent for dysthymia prior to March 12, 2021, and entitlement to a rating in excess of 50 percent thereafter. For the reasons stated below, the Board finds that for the entire period on appeal, the Veteran is entitled to a rating of 70 percent, but no higher. The Veteran’s service-connected dysthymia is rated under Diagnostic Codes 9433 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9433. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9433. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126 (a). VA treatment records, the May 2012 VA examination, the March 2021 VA examination, and the Veteran’s lay statements show that the Veteran’s dysthymia was manifested by symptoms associated with a 70 percent rating (occupational and social impairment with deficiencies in most areas, impaired impulse control, and difficulty in adapting to stressful circumstances). The Veteran also exhibited symptoms not listed with a specific rating such as a single cutting incident and wanting isolation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Moreover, the single cutting incident and wanting isolation are similar to suicidal ideation and inability to establish and maintain effective relationships, which are contemplated by the 70 percent rating. The evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. Therefore, entitlement to an increased rating of 70 percent, but no higher, for dysthymia is granted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As discussed above, the Veteran has a combined 100 percent disability rating and is service connected for the following disabilities: • Dysthymia, rated as 70 percent disabling, • Sleep apnea, rated as 10 and 50 percent disabling, • Laxity of the right lateral collateral ligament, rated as 30 percent disabling, • Left shoulder, status post-surgery, rotator cuff repair and debridement and osteotomy, rated as 10 and 20 percent disabling, • Status post right knee surgery with debridement and patellar tendon repair with scar, rated as 10 percent disabling, • Mild hypertension, rated as 10 percent disabling, • Status post laparoscopic cholecystectomy with residual scar, rated as 10 percent disabling, • Left lower plantar fasciitis, rated as 0 and 10 percent disabling, • Right lower plantar fasciitis, rated as 10 percent disabling, • Right fourth finger trigger finger, rated as 0 percent disabling, • Allergic rhinitis, each rated as 0 percent disabling, • Bilateral inguinal hernia repair, rated as 0 percent disabling, and • Scars, status post left shoulder surgery associated with left shoulder, rated as 0 percent disabling. The Veteran has also been granted service connection for fibromyalgia in this Board decision. As noted by the Veteran’s 100 percent combined disability rating, he suffers from many conditions that are severe. Multiple examiners have said the Veteran’s physical disabilities impact his ability to work. (See e.g. March 2021, January 2021, and May 2012 VA examinations.) Additionally, the Veteran reports pain because of his physical disabilities. The Veteran’s dysthymia has also been found to limit his ability to work, leading to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. (See e.g. March 2021VA examination.) The Veteran has not worked since 2009 and previously had work experience in I.T. He was awarded Social Security Administration (SSA) benefits for the “cumulative effects of [his] physical and mental health issues” including fibromyalgia, sleep apnea, migraines, and dysthymia. (See e.g. January 2012 SSA records.) The Board finds that when looking at the Veteran’s disability picture, to include both his physical and mental disabilities, the Veteran is unable to work. Therefore, a TDIU will be granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.