Citation Nr: 21039010 Decision Date: 06/28/21 Archive Date: 06/28/21 DOCKET NO. 16-45 792 DATE: June 28, 2021 ORDER A total disability rating due to individual unemployability (TDIU) effective from August 26, 2014, is granted. FINDING OF FACT The Veteran's fibromyalgia causes unemployability. CONCLUSION OF LAW The criteria are met for a TDIU effective August 26, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to April 1996. This appeal is from a February 2015 rating decision. Historically, this claim arises from the Veteran's claim for an increased rating for his fibromyalgia, which was received August 26, 2014. In a November 2018 decision, the Board denied that claim, but found that the evidence of record raised the issue of entitlement to TDIU. The Board directed the AOJ (agency of original jurisdiction) to refer the issue to the Director of the Compensation Service for consideration of whether a TDIU was warranted on an extraschedular basis. In September 2020, the AOJ referred the issue.However, in December 2020, the Director found that extraschedular TDIU was not warranted. 1. A total disability rating due to individual unemployability (TDIU) effective from August 26, 2014, is granted. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. Where a veteran's schedular rating is less than total, a total disability rating may be assigned 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 certain requirements are met. Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then 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. 38 C.F.R. § 4.16(a). Here, the Veteran does not meet the schedular requirements for a TDIU. His fibromyalgia is rated 40 percent, but his only other service-connected disability (discoid lupus) is rated at 10 percent, resulting in a 50 percent combined rating. This rating has been in place for the entire period on appeal, which starts August 26, 2014. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), discussed above, the case may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, as mentioned, the issue of extraschedular entitlement to a TDIU was referred to and considered by the Director of the Compensation Service, who denied an extraschedular TDIU. As this has been initially reviewed by the Director, the Board may therefore proceed with review of whether the Veteran is entitled to an extraschedular TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The record shows the Veteran has a high school education. His work experience includes a factory job (bundling paper bags from a machine), a retail job (renting, delivering, and collecting furniture), and a debt collection job (sitting at a desk and calling people). The Veteran reported having some training during his active service in business administration, WordPerfect, and lotus. The Veteran has not worked since 2002, when he was not able to perform the duties of his debt collection job, and has been found to be totally disabled by the SSA (Social Security Administration) since that time. He was found to be disabled from pityriasis lichenoids chronica with chronic pain syndrome, arthralgias, lumbar spondylosis, facet joint syndrome, and fibromyalgia syndrome. The Board notes that the Veteran is service-connected for pityriasis lichenoids chronica with chronic pain syndrome and arthralgias, but this diagnosis has been updated since 2002 to his currently listed discoid lupus. He is also service-connected for fibromyalgia. He is not service-connected for lumbar spondylosis or facet joint syndrome. The remaining inquiry is whether his disabilities preclude substantial and gainful work during the period on appeal. After review of the record, the Board finds that it does. The Board notes that the Veteran's fibromyalgia was previously rated as "chronic pain syndrome and arthralgias." The AOJ changed it based upon a September 2007 VA examination that indicated the fibromyalgia diagnosis corrected the previous diagnosis, and noted that the Veteran had the same complaints of pain and arthralgia since he was in active service. In May 2002, the Veteran's VA treating physician indicated that the Veteran was not able to perform job duties requiring lifting or carrying heavy objects, or standing, sitting, or walking for extended periods of time, due to fibromyalgia and chronic pain syndrome. A different physician, in August 2002, indicated that the Veteran's pain caused distraction from work, and his pain would increase with physical activity. A June 2013 VA treatment provider noted the Veteran's medical history was significant for fibromyalgia as the cause of his disability, and that an MRI of the spine was normal. A November 2013 VA treatment record notes the Veteran's fibromyalgia caused total body pain for which he was prescribed narcotic pain medication. The February 2015 VA examination shows the Veteran's fibromyalgia is refractory to therapy. His fibromyalgia causes widespread musculoskeletal pain, stiffness, and sleep disturbance, and his symptoms are constant or nearly constant. That examiner indicated that fibromyalgia would interfere with work, but that the Veteran could do sedentary work. The above evidence shows that he has longstanding fibromyalgia that causes constant and widespread body pain. It shows that he cannot perform duties that require prolonged standing or walking, which would encompass most of his previous work experience. The Board acknowledges the February 2015 VA examiner's opinion that the Veteran could perform sedentary work, but did not explain what his understanding of "sedentary" was, or adequately address whether the Veteran had the physical and mental ability to perform such work. Here, the record shows that he had some experience doing phone-based collections, which could be performed sitting in a desk, and would be considered sedentary. However, the record also shows that he only worked in that job for a month before his symptomsspecifically, his symptoms of painprevented him from performing the duties. Indeed, at that time, his doctor noted that fibromyalgia prevented sitting for prolonged period. The Board places more weight on the May 2002 record, even though it is dated from before the period on appeal, because the evidence shows his symptoms have remained at the same level of severity for many years. Indeed, the Board notes that he is assigned the highest rating available for fibromyalgia. Accordingly, the Board finds that the Veteran would be precluded from sitting for prolonged periods, which would encompass his previous experience in debt collection over the phone, and preclude sedentary work. Further, the Board notes that the Veteran has been out of the work-force for nearly 20 years. The only computer and office-work training he has is from active service, which would likely be outdated by now. There is no indication that he has any training or skills that he could transfer to a sedentary position, even if he was able to physically withstand a sedentary position. The Board notes that the Director of the Compensation Service found that the SSA based the Veteran's disability award largely on his back; however, the evidence does not show that his back has been identified otherwise as the main source of his disability. Indeed, a June 2013 MRI of the back was normal. Rather, his fibromyalgia is noted to be the cause of his pain and disability. Accordingly, the Board finds that an extraschedular TDIU is warranted for the entire period on appeal. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.