Citation Nr: 21027968 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 05-39 708 DATE: May 7, 2021 ORDER Entitlement to a disability rating higher than 40 percent for painful motion of the bilateral knees, wrists, and feet is denied. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) effective October 11, 2005, but not earlier, is granted. Eligibility for Dependents Educational Assistance (DEA) benefits effective October 11, 2005, but not earlier, is granted. FINDINGS OF FACT 1. The service-connected disability is manifested by painful motion of the bilateral knees, wrists, and feet. 2. The Veteran met the schedular requirements for TDIU on October 11, 2005, and became unable to secure or follow a substantially gainful occupation as of that date. 3. DEA benefits are contingent on a total disability rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 40 percent for painful motion of the bilateral knees, wrists, and feet are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5025, 5215, 5260, 5269 (2021). 2. The criteria for an effective date of October 11, 2005, for the assignment of TDIU are met; the criteria for an effective date earlier than October 11, 2005, are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2021). 3. The criteria for an effective date of October 11, 2005, for eligibility for DEA benefits are met; the criteria for an eligibility date earlier than October 11, 2005, are not met. 38 U.S.C. §§ 1160, 3500 (West 2014); 38 C.F.R. § 3.807 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1975 to June 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2015 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a rating decision of the RO in Los Angeles, California dated in January 2002 and from a rating decision of the RO in Cleveland, Ohio dated in July 2004. In February 2014, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the denial of his claims and he was informed of the evidence necessary to substantiate the claims. A transcript of the hearing is associated with the claims file. In a decision dated in June 2014, the Board denied a rating in excess of 10 percent for rheumatoid arthritis from November 18, 1998, through January 29, 2004, denied a compensable rating for rheumatic heart disease from November 18, 1998, through December 31, 2000, granted a 10 percent rating for rheumatic heart disease from January 1, 2001, through January 29, 2004, and granted service connection for bilateral carpal tunnel syndrome. The Veteran appealed the June 2014 decision to the Veterans Court. In an Order dated in March 2015, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision in part, and remanded the issue of entitlement to a rating in excess of 10 percent for rheumatoid arthritis from November 18, 1998, through January 29, 2004, to the Board for additional development consistent with the Joint Motion. The parties to the Joint Motion stipulated that the Board's decision to grant service connection for bilateral carpal tunnel syndrome, to grant a 10 percent rating for rheumatic heart disease from January 1, 2001, through January 29, 2004, and to deny a compensable rating for rheumatic heart disease from November 18, 1998, through December 31, 2000, should not be disturbed. Therefore, those matters are no longer part of this appeal. In conjunction with the June 2014 decision, the Board remanded for additional development the issues of entitlement to service connection for migraine headaches, entitlement to an evaluation in excess of 20 percent for rheumatoid arthritis of the knees, wrists and feet, beginning January 30, 2004, entitlement to an evaluation in excess of 30 percent for rheumatic heart disease, valvular dysfunction, beginning January 30, 2004, entitlement to a compensable evaluation for tinea pedis and atopic dermatitis, and entitlement to service connection for complex allergies. In May 2015, the Board remanded the issues of entitlement to a rating in excess of 10 percent for rheumatoid arthritis of the knees, wrists, and feet, prior to January 30, 2004; entitlement to a rating in excess of 20 percent for rheumatoid arthritis of the knees, wrists, and feet, since January 30, 2004; entitlement to a rating in excess of 30 percent for rheumatic heart disease and valvular dysfunction, since January 30, 2004; entitlement to a compensable rating for tinea pedis and atopic dermatitis; entitlement to service connection for migraine headaches; entitlement to service connection for complex allergies; and the intertwined issue of entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU), for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. In a November 2019 decision, the Board denied service connection for complex allergies and headaches, as well as increased ratings for rheumatic heart disease and a skin disorder. The Board granted a disability rating higher than 10 percent for painful motion of the bilateral knees, wrists, and feet (formerly characterized as rheumatoid arthritis) prior to January 30, 2004, and denied a rating higher than 40 percent for any period. The Board remanded the issue of TDIU entitlement. The Veteran appealed the November 2019 decision to the Veterans Court. In a November 2020 Order, pursuant to a Joint Motion for Partial Remand, the Veterans Court vacated the Board's decision in part, and remanded the rating issue for the knees, hands, and feet to the Board for additional development consistent with the Joint Motion. The issue of TDIU entitlement was not before the Veterans Court. The parties to the Joint Motion agreed that the Board's decision to deny service connection for complex allergies and chronic headaches should not be disturbed, as well as the denial of increased ratings for the service-connected skin disorder and rheumatic heart disease. The parties to the Joint Motion agreed that the Veterans Court should dismiss this part of the appeal. As the Board granted an increased rating for the service-connected painful motion of the knees, hands, and feet prior to January 30, 2004, that matter was not disturbed. The Board accordingly addresses the entire period on appeal as a single issue. The Board notes that the Veteran also appealed a September 2018 rating decision, which granted a rating of 60 percent for the service-connected heart disease, effective June 25, 2010; granted a rating of 40 percent for the service-connected fibromyalgia, effective May 19, 2016; and granted TDIU and Dependents Educational Assistance (DEA), effective June 25, 2010. The Veteran perfected the appeal in May 2020. As the rating for the service-connected heart disease is the precise issue subsequently dismissed by the parties to the Joint Motion in November 2020, i.e., a rating higher than 30 percent from January 30, 2004, to June 25, 2010, and higher than 60 percent since June 25, 2020, the Board interprets this agreement as subsuming any active appeals regarding that issue. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating higher than 40 percent for painful motion of the bilateral knees, wrists, and feet. The Board observes in a review of the history of this case that, in a June 2000 rating decision, the RO granted service connection for "rheumatoid arthritis, bilateral knees, bilateral wrists, and bilateral feet" and assigned an initial rating of 10 percent for the combined disabilities pursuant to Diagnostic Code 5002, effective November 18, 1998. The 10 percent rating was assigned based on "limited motion of a major joint or group of minor joints." The RO found that there was "rheumatoid arthritis with x-ray evidence involving 2 or more minor joint groups; therefore, 10 percent rating is assigned." The Board has previously determined (June 2014) that, although the Veteran did not submit a notice of disagreement with the June 2000 rating decision which granted service connection and assigned the initial rating of 10 percent for rheumatoid arthritis, she did submit new and material evidence within a year of that decision, and therefore, the current appeal relates back to the original claim, received on November 18, 1998. Diagnostic Code 5002 establishes a two-tiered rating scheme. Rheumatoid arthritis is either assigned a rating for an active process or for chronic residuals, whichever allows the higher rating. When rated as an active process, the following ratings apply: With constitutional manifestations associated with active joint involvement that is totally incapacitating, a 100 percent rating is warranted. When there is less symptomatology than the criteria for 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged periods, a 60 percent evaluation is assigned. Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year are evaluated as 40 percent disabling. One or two exacerbations a year in a well-established diagnosis is evaluated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Chronic residuals of rheumatoid arthritis, such as limitation of motion or ankylosis, favorable or unfavorable, are rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the specific diagnostic codes for such joints, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5002. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints. 38 C.F.R. § 4.45(f). The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis; instead, the higher evaluation will be assigned. 38 C.F.R. § 4.71a, DC 5002, Note. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. After a review of all of the evidence, the Board finds that the criteria for a rating higher than 40 percent for the service-connected painful motion of the knees, hands, and feet are not met. The parties to the November 2020 Joint Motion agreed that remand was warranted because the Board erred when it provided inadequate reasons or bases for denying a higher rating. According to the parties: Specifically, although the Board found Appellant's condition was appropriately rated under Diagnostic Code 5025 for fibromyalgia (R. at 19), it nonetheless "considered whether still higher ratings are warranted under the provisions for rheumatoid arthritis." (R. at 20). It acknowledged "there is satisfactory lay evidence of painful motion regarding the wrists, knees, and feet." (R. at 25). In this regard, however, the Board found that the only rating available on the basis of painful motion would be for each wrist and each knee but that "there is no compensable rating contemplated for limitation of motion of the joints of the feet." (R. at 25). However, the Board did not address 38 C.F.R. § 4.59 and whether this regulation would allow for a compensable rating for each foot. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) ("[T]he plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements."). Therefore, remand is warranted for the Board to provide an adequate statement of reasons or bases, addressing § 4.59 and whether higher ratings are warranted in light of this regulation. The parties to the Joint Motion did not acknowledge or cite the decision of the Veterans Court in Sowers v. McDonald, 27 Vet. App. 472 (2016). In Sowers, the Veterans Court specifically addressed the applicability of 38 C.F.R. § 4.59 to diagnostic codes that do not include a compensable rating for limitation of motion. That decision addressed Diagnostic Code 5230 (ring or little finger), which does not include any compensable rating. The decision holds that 38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the specific disability, and where that diagnostic code does not provide for any compensable rating for limited motion of the joint, the provisions of 38 C.F.R. § 4.59 do not require or permit a compensable rating to be assigned. In Sowers, the Court characterized the appellant's interpretation of 38 C.F.R. § 4.59 as "essentially create[ing] a freestanding painful motion disability that is always entitled to a 10% disability rating." The Veterans Court concluded that, "When an interpretation is not compelled by the language of the regulation, is not supported by caselaw, and has absurd effects, it must be firmly rejected." Citing Mitchell v. Shinseki, 25 Vet. App. 32, 43. VA's regulations specifically acknowledge and identify the joints of the feet. Plate IV under 38 C.F.R. § 4.71a, lists and graphically depicts each bone of the foot and graphically depicts each joint of the foot. As set out above, VA regulations establish that the bones of the foot are considered groups of minor joints. 38 C.F.R. § 4.45(f). Thus, it cannot be concluded that VA errantly omitted a compensable rating for limitation of motion of the joints of the feet. Moreover, the rating schedule includes diagnostic codes addressing amputation of the toes, thus firmly recognizing and acknowledging the toe joints. VA regulations also provide ratings for various foot disabilities (Diagnostic Codes 5276-5284). However, there is no compensable rating provided for limited motion of the toe joints. Therefore, the Board finds that no compensable rating was or is contemplated for limitation of motion of the joints of the foot. Thus, the holding in Sowers applies to this case, the pertinent facts of which are essentially the same as in Sowers. The only distinction is that, in the case of the foot/toe joints, no diagnostic code is even included in the rating schedule. In Sowers, a diagnostic code for the ring/little finger was included, but the only rating listed was 0 percent. The Board finds that this is not a meaningful distinction, as limitation of motion of certain fingers is compensable. With respect to the feet, none of the toes are compensable on the basis of limitation of motion. The citation of the parties to Southall-Norman is inapt. That case dealt with the condition diagnosed as hallux valgus, rated under Diagnostic Code 5280, a diagnostic code which includes a compensable rating. Indeed, in Southall-Norman, the Veterans Court actually cited to Sowers, indicating that the Court was fully conscious of its holding. Similarly, in Hilsabeck v. Wilkie, 2018 U.S. App. Vet Claims LEXIS 1009 (non-precedential), the Veterans Court distinguished the holding in Sowers because, unlike Diagnostic Code 5230, addressed in Sowers, the diagnostic code at issue in Hilsabeck included a minimum compensable rating. The Veterans Court has also ruled on whether the diagnostic codes applicable to the foot may be selectively applied. When a condition is specifically listed in the rating schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2016) (rejecting the appellant's contention that to rate under Diagnostic Code 5284 for "Foot injuries, other," would not be rating by analogy as, to do so would ignore the plain meaning of the term "other," and would make the remaining eight foot-related diagnostic codes redundant). Here, the diagnosis is fibromyalgia, a condition that is specifically included in the rating schedule. In short, the Board finds that application of 38 C.F.R. § 4.59 to provide a compensable rating for painful motion of the joints of the feet would be inappropriate, where, as here, VA has otherwise chosen not to provide such a rating. As noted above, the parties to the Joint Motion identified no other problems with the Board's reasoning, discussion, findings, or conclusions. Accordingly, the Board will restate its reasons and bases, as the prior decision has been vacated. The Veteran's disability was initially characterized as rheumatoid arthritis. However, the diagnosis of rheumatoid arthritis was not "well-established." Rather, the diagnosis had only recently been proposed and has since been refuted. A VA examination in April 1999 reveals a diagnosis of "early" rheumatoid arthritis. Significantly, the diagnosis was actively questioned by some examiners, and other examiners provided different diagnoses instead of rheumatoid arthritis (Record 04/06/1999). An April 1999 Adult Preventive and Chronic Care Flowsheet lists a diagnosis of "Arthritis, OA?" In April 2003, the Veteran was found to have polyarthritis. Indeed, despite the April 1999 diagnosis of rheumatoid arthritis, the x-ray upon which the diagnosis was based was interpreted by the radiologist in less certain terms. The radiologist specifically noted that the soft tissue swelling of the PIP joints was "the only" radiographic feature suggestive of "possible" rheumatoid arthritis. X-rays of the hands in July 2004, and of hands and feet in October 2004, were interpreted as normal. X-rays of the hands in January 2003 revealed no significant degenerative change. Rather than the previous confirmed diagnosis, the diagnosis at this time was "[r]ule out" rheumatoid arthritis. While an August 2000 radiology report acknowledged the possibility that lucency noted along the bases of several proximal phalanges "could" represent tiny erosions consistent with rheumatoid arthritis, the examiner found that they were "most likely" due to normal variation. Other reports directly question the diagnosis of rheumatoid arthritis. A VA examination in October 2001 reveals the examiner's opinion that the Veteran did not have any objective findings on examination of rheumatoid arthritis in the knees, wrists and feet. Moreover, the examiner commented that the Veteran was not on any medications that one would normally expect a person with rheumatoid arthritis to be taking. A VA rheumatology consultation in February 2003 reveals that the Veteran's rheumatoid factor was normal, although she had positive Antinuclear Antibody (ANA). The diagnosis was described as unclear, but it could possibly be a connective tissue disorder such as lupus (Record 02/20/2018 at 1980). On a VA examination in April 2004, it was noted that the Veteran's history "may be" consistent with rheumatoid arthritis, although on the current examination, she did not have significant joint deformity. There was no swelling of the joints and she had full range of motion of all fingers and wrists. Workup to see whether she had rheumatoid arthritis was planned (Record 05/19/2004). A VA rheumatology consultation in October 2004 notes a 20 year history of seronegative RA/ANA positivity; however, the diagnosis of "MCTD?" (mixed connective tissue disease) certainly suggests diagnostic doubt on the part of the examiner (Record 02/20/2018 at 1940). A May 2010 VA examination of the hand, thumb and fingers, reveals the examiner's opinion that rheumatoid arthritis is not an active condition. Testing in February 2001, January 2003, April 2004, November 2005, and October 2009 was negative. There was no joint swelling noted on examination. Her hand complaints were due to carpal tunnel syndrome. It was speculated that some of her joint complaints "may" be due to osteoarthritis (hips). There were no signs of rheumatoid arthritis of the feet (Record 05/26/2010). A March 2014 letter from a VA rheumatologist confirms the uncertainty during this period as to whether a diagnosis of rheumatoid arthritis was warranted. According to the rheumatologist, when the Veteran was evaluated in February 2003, she was thought to "possibly" have a mild or early case of systemic lupus or rheumatoid arthritis, though her rheumatoid factor was negative. A May 2015 VA examination it was noted that fibromyalgia was the correct diagnosis and that the Veteran did not have rheumatoid arthritis (Record 05/06/2015). A June 2016 VA examination reiterated that the Veteran did not meet the specific inflammatory arthritis criteria as of January 29, 2004. The examiner opined that the Veteran does not have rheumatoid arthritis or other inflammatory arthritis. The examiner cited supporting evidence against the diagnosis of inflammatory arthritis includes: no evidence of joint inflammation/synovitis, no evidence of characteristic rashes, serially negative rheumatoid factor, minimally reactive ANA 1:80 or less, unremarkable antibody panels, no evidence of joint erosion/destruction on serial hand x-rays, and serially normal ESR. The examiner found that the Veteran instead had fibromyalgia (Record 06/16/2016). An October 2017 VA examination addressed the period prior to January 30, 2004, per the Board's instructions. The examiner found that the Veteran's symptoms were not attributable to rheumatoid arthritis as the Veteran never met the diagnostic criteria for the diagnosis. Rather, the examiner attributed the Veteran's symptoms to fibromyalgia (Record 10/16/2017). An examination in April 2018 includes the examiner's statement that no opinion could be given regarding which diagnosis was appropriate as the test results had been inconsistent (Record 04/10/2018). A file-review examination later in April 2018 reveals the diagnosis of fibromyalgia, and extends this diagnosis to 2007. The examiner stated that the Veteran had signs and symptoms of polyarthralgia and diffuse musculoskeletal pains and complaints which are clinical marks of fibromyalgia. The examiner stated that there is no conclusive clinical diagnosis of rheumatoid arthritis (Record 04/25/2018). Therefore, the current fibromyalgia is at least as likely as not started/caused by the joint paint that she incurred in service (Record 04/25/2018). The examiner also opined that the Veteran's complaints with respect to the hands is not due to rheumatoid arthritis, but is due to carpal tunnel syndrome and fibromyalgia (Record 04/25/2018). There is also no question that the Veteran had ongoing symptomatology and impairment in the affected joints during the period under consideration. Nevertheless, the clinical evidence during the period under consideration does not substantiate a "well-established" diagnosis of rheumatoid arthritis during this period. Instead, the clinical evidence appears to reflect a substantial degree of doubt as to the correct diagnosis. Recent VA outpatient treatment records show that the condition affecting the Veteran's knees, hands, and feet is fibromyalgia. Consistent with the diagnostic change, the RO changed its characterization of the disability to fibromyalgia in September 2018 and applied Diagnostic Code 5025 to all ratings since May 2016. Under Diagnostic Code 5025, fibromyalgia is assigned a maximum rating of 40 percent where there are constant symptoms, or nearly so, and refractory to therapy. A rating of 20 percent is assigned for episodic symptoms with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of time. A rating of 10 percent is for continuous medication for control. 38 C.F.R. § 4.71a, Diagnostic Code 5025. As previously noted, there is no question that service connection was granted for rheumatoid arthritis. However, VA may change the characterization of a disability, as well as the diagnostic code applied if the evidence supports such a change. In this case, as explained in detail above, the Board finds that the evidence supports the change to Diagnostic Code 5025. Moreover, such a change only constitutes a rating reduction if the rating assigned under the alternative diagnostic code is less than that currently assigned. The parties to the March 2015 Joint Motion stipulated that the Board should discuss what constitutes an exacerbation of rheumatoid arthritis, as contemplated by Diagnostic Code 5002, and whether the morning stiffness reported by the Veteran would suffice. The parties also agreed that the Board did not discuss what type of evidence would constitute "satisfactory evidence of painful motion, and did not adequately explain whether evidence of weakness and swelling of the hands or the Veteran's multiple reports of joint pain could be "satisfactory evidence of painful motion" under Diagnostic Code 5002. As the Board has found the diagnosis of rheumatoid arthritis was not "well-established" during the period in question, and as the evidence demonstrates that the Veteran does not have rheumatoid arthritis, but has fibromyalgia, the Veteran's symptoms do not constitute an exacerbation of rheumatoid arthritis. The parties to the March 2015 Joint Motion also stipulated that the Board should discuss whether the record reflects involvement of additional joints, to include the hips and shoulders, and whether any potential re-characterization may result in an increased rating prior to January 30, 2004 (citing an August 2000 VA treatment record noting complaints to include bilateral shoulder pain and an April 2003 VA treatment record noting complaints of multiple joint pain "mainly in her hands, knees, ankles and elbows"). The Board finds that the service-connected disability in this case does not encompass all joints or any other joints than those addressed in the grant of service connection, and specifically does not encompass the shoulders or hips. Indeed, the grant of service connection does not encompass the hands, which have been a principal topic of the Veteran's arguments. The June 2000 rating decision which granted service connection specifically listed the knees, wrists, and feet, and no other joints or groups of joints. The subsequent rating sheets likewise list only these specific anatomical areas as service connected. While it is acknowledged that fibromyalgia may cause disability of multiple joints, service connection must first be granted for a disability, such as a knee disability, a shoulder disability, a hip disability, etc., before a disability rating can be assigned. In this case the grant of service connection encompasses only disability of the knees, wrists, and feet. Under 38 C.F.R. § 4.45(f), the joints of the hands and wrists are clearly distinct. The wrist is considered a major joint, whereas the interphalangeal, metacarpal and carpal joints of the upper extremities are considered a group of minor joints. A grant of service connection for a wrist disability does not itself confer service connection upon a hand disability. As this is an appeal of the initial disability rating assigned with the grant of service connection, the Board has considered whether the notice of disagreement could reasonably be construed as applying to the RO's characterization of the claim as being limited to the wrists, knees, and feet. However, it does not appear that the RO adjudicated and denied any other joints. Rather, the RO construed the Veteran's claim as applying to those specific joints. As the RO did not adjudicate and deny claims involving other joints, there can be no current appeal of those claims. Should the Veteran wish to have ratings assigned for disability of additional joints due to rheumatoid arthritis or any other cause, the appropriate course is to file a service connection claim for each such disability. In sum, the Board finds that the Veteran does not have rheumatoid arthritis, but has fibromyalgia during the entire period on appeal. Moreover, the Veteran's fibromyalgia has been manifested by constant symptoms, or nearly so, and refractory to therapy. There is no rating higher than 40 percent contemplated for fibromyalgia. There are no other rating provisions that would provide a higher rating. In light of these findings, the Board concludes that a rating higher than 40 percent is not warranted. In reaching the conclusion that an increased rating is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU--Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate 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(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Veterans Court held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works and without regard to his earned annual income prior to his having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Entitlement to TDIU prior to May 13, 2009. The current appeal arises from a claim received on January 30, 2004. From that date to October 11, 2005, a combined disability rating of 60 percent was assigned. From October 11, 2005, until the grant of TDIU, a combined disability rating of 70 percent was assigned. On a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) received in January 2010, the Veteran reported that she was last employed on a full time basis on May 12, 2009. She also reported that her disability affected full time employment, and that she became too disabled to work on the same date. She reported having a college education and training to be a teacher. She reported employment history with the US Census Bureau from February 17, 2009, to May 12, 2009, working 40 hours per week. Consistent with the above, in June 2010, the Veteran reported mostly the same information, but added work as an office coordinator in January 2009, earning $10,000. On a form received in March 2016, she again reported May 12, 2009, as the date she became too disabled to work. She reported working from 2001 to 2002 as an office coordinator, from 2003 to 2004 as a customer service agent, from 2004 to 2005 as a baggage checker, and from 2008 to present as a self-employed clothing vendor "(when needed)." However, on a form received in July 2018, she reported that she last worked full time on January 1, 2000, and she became too disabled to work on that date. On a form received in May 2020, she again reported the date of last employment as May 12, 2009. She stated that from 2005 to 2009 she only had temporary jobs. She cannot recall when she did each job or where each job was. She often did things like obtaining signatures for petitions. In 2009, she worked for the census bureau for a few months and performed other "odds and ends jobs," including working in an office. She was forced to stop work due to her service-connected "rheumatoid arthritis." When she worked at the census, she had to leave work early because back pain. She reported her last regular job was as an airport baggage checker, which she left on January 1, 2005. Unfortunately, the Veteran has been inconsistent in reporting the basic details of her employment history. The Board notes that service connection is not in effect for a back disorder, her stated reason for leaving work early. Nevertheless, the Board recognizes that the Veteran had a patchy work history in her last few years of work, and that the amount she earned is very inconsistent over that period. The AOJ found in granting TDIU effective May 13, 2009, that this was "the date your disabilities combine to 70 percent disabling, and the evidence of record shows you were not working due to your disabilities." The combined disability rating is now 70 percent from October 11, 2005, with the increased rating of 40 percent for fibromyalgia from January 30, 2004. While there is considerable doubt regarding the Veteran's ability to work during the period prior to May 13, 2009, the Board will resolve such doubt in favor of the claim. The Board finds that TDIU is warranted from October 11, 2005. Prior to that, the schedular criteria were not met, as the Veteran had a combined rating of 60 percent. Moreover, the Board finds that, without consideration of the effect of the Veteran's fibromyalgia, which in granting the increased rating in November 2019, the Board acknowledged was more disabling during this period than the previous rating reflected, her service-connected disabilities would not have rendered her unable to secure or follow a substantially gainful occupation. Therefore, referral of TDIU entitlement on an extraschedular basis prior to October 11, 2005, is not warranted. Entitlement to DEA benefits prior to May 13, 2009. For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35, the child, spouse or surviving spouse of a veteran or service person will have basic eligibility if the veteran: (1) Was discharged from service under conditions other than dishonorable, or died in service; and (2) Has a permanent total service-connected disability; or (3) A permanent total service-connected disability was in existence at the date of the veteran's death; or (4) Died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. In this case, the DEA benefits are based on a permanent total service-connected disability. As the grant of TDIU provides this level of disability, the effective date of the Veteran's eligibility for DEA benefits is contingent on the effective date for TDIU benefits. Accordingly, the effective date for DEA eligibility can be no earlier than October 11, 2005. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.