Citation Nr: 21042161 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-04 535 DATE: July 12, 2021 ORDER Entitlement to an initial compensable rating for West Nile virus and residuals is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) also is denied. FINDINGS OF FACT 1. The Veteran's West Nile virus is inactive and has not manifested in signs and symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or in symptoms controlled by continuous medication. 2. Further, he does not have sufficient ratings for his service-connected disabilities to meet the schedular rating requirements for a TDIU, and the preponderance of the evidence is against finding that they preclude him from obtaining or maintaining substantially gainful employment when considering his level of education, prior work experience and training. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a compensable rating for West Nile virus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.88B, Diagnostic Code (DC) 6399-6354. 2. The criteria also are not met for entitlement to a TDIU, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to February 1992. This appeal to the Board of Veterans' Appeals (Board) is from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). That rating decision awarded service connection for the Veteran's West Nile virus and, since inactive, assigned an initial 0 percent (so noncompensable) rating for it retroactively effective from October 29, 2012. He appealed that initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to "stage" the rating meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). In January 2019, so since, the Board determined there also is a derivative TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board then proceeded to remand these claims back to the RO (AOJ) to obtain all outstanding records relevant to them and then to have the Veteran reexamined to reassess the severity of his West Nile virus in terms of its residuals (fatigue, etc.). There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall v. West, 11 Vet. App. 268 (1998); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). 1. Entitlement to an initial compensable rating for the West Nile virus Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already alluded to, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson, 12 Vet. App. at 125-26; Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. At the outset, the Board notes that the rating criteria for West Nile virus changed effective August 11, 2019. These new criteria apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 11, 2019. Whichever version of the criteria that is more favorable to the Veteran will be applied, but the Board may not apply the revised criteria prior to their effective date unless the regulation explicitly stipulates otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying the prior criteria to the period on or after the effective date of the new criteria if the prior version was in effect during the pendency of the appeal. The initial 0 percent (noncompensable) rating for the Veteran's West Nile virus that is at issue in this appeal was assigned under 38 C.F.R. § 4.88B, hyphenated DC 6399-6354, as of May 2016. Hyphenated DCs, including those ending in "99", are used when there is no specifically applicable DC and the disability is rated by analogy. 38 C.F.R. § 4.27. There was no DC specific to West Nile virus prior to August 2019, so the disability was rated by analogy under DC 6354 to chronic fatigue syndrome (CFS), which applied disability ratings based on symptoms including debilitating fatigue, cognitive impairments (such as an inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. According to DC 6354, "incapacitation" requires bed rest and treatment by a physician. Currently, the Veteran's disability is rated at 0 percent under DC 6399-6354 for fevers, chills, body aches, chronic fatigue, chronic stiff neck, and weakness occurring once annually. A higher 10 percent rating is warranted for signs and symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or if the symptoms are controlled by continuous medication. A 20 percent rating is warranted for signs and symptoms that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level or signs and symptoms resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is warranted for near-constant signs and symptoms that restrict routine daily activities to 50 to 75 percent of the pre-illness level or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is warranted for near-constant signs and symptoms that restrict routine daily activities to less than 50 percent of the pre-illness level or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A maximum 100 percent rating is warranted for signs and symptoms that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Effective August 11, 2019, West Nile viral infections are rated under DC 6335, directing application of the General Rating Formula for Infectious Diseases (General Formula). Under the General Formula, a 100 percent rating is warranted for active infection. For inactive infection, a 0 percent rating is warranted, and any residual disabilities based on the active infection are to be rated within the appropriate body system. These are the only two ratings available under the General Formula. It is additionally worth mentioning that, effectively since December 29, 2011, the Veteran has had a separate 40 percent rating for fibromyalgia under DC 5025, so since nearly a year prior to the effective date of his 0 percent West Nile rating. His fibromyalgia rating is based on near constant, widespread musculoskeletal pain and tender points, fatigue, stiffness, and headaches. He also has a 30 percent rating for posttraumatic stress disorder (PTSD) under DC 9411, with symptoms including depressed mood and anxiety causing occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He cannot be compensated twice for the same symptoms since that would contravene VA's anti-pyramiding regulation. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Considering the Veteran's symptoms apart from those mentioned, so remaining mindful of the prohibition against pyramiding, the Board finds insufficient grounds for granting a compensable rating for his West Nile virus because, essentially, it is inactive and does not have any residuals certainly none to the extent contemplated by a compensable (as opposed to noncompensable) rating. The report of the October 2019 VA infectious disease examination the Veteran had, on remand, confirms that his West Nile virus is inactive. There are no periods of physician-ordered bedrest. He described symptoms including chills and coughing approximately once a year, lasting 3 to 5 days, but which he also conceded do not cause him to miss work. Moreover, the examiner clarified these symptoms are not indicative of West Nile virus residual effects or infection, and these findings are grossly consistent with the other medical evidence of record including the results of prior VA examinations. The Veteran's treatment records show he consistently attributes various symptoms such as fatigue, fever, chills, and even an instance of loss of consciousness in September 2019 to his prior West Nile infection, but his healthcare providers do not endorse these assertions. In a November 2016 statement to VA, he listed his West Nile virus symptoms as chronic pain, nervous tics, depression, muscle aches, stiffness, headaches, fibromyalgia, back pain, and gastrointestinal symptoms. However, while he is competent to report symptoms and their onset, such as muscle pain, he is not competent to ascribe his symptoms to a diagnosis like West Nile virus. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). And, simply put, the record on appeal does not support finding that his purported symptoms are attributable to his West Nile virus that, by all medical accounts, has resolved. Further, and of equal or even greater significance, the record on appeal indicates the Veteran has not been placed on physician-ordered bedrest, has not required any form of medical note or exemption to take leave from his job, has not been prescribed daily medications to control his symptoms, and has not reported in any context that his symptoms hinder him in daily activities. Indeed, his VA treatment notes from August 2017 onward reflect that he does not take any medications for fibromyalgia or West Nile virus residuals and manages his symptoms through massage and remaining active. As such, the record does not tend to show that the symptoms he has identified as chills, body aches, stiffness, and/or fever warrant a compensable rating under DC 6399-6354 or DC 6335 owing to West Nile virus. The Board also finds it appropriate to further discuss the distinction between the Veteran's fibromyalgia and PTSD symptoms and those attributed to what amounts to his resolved West Nile infection. His fibromyalgia rating is based, in part, on near constant joint pain and fatigue. He has reported and VA examinations reflect that stiffness and fatigue may be attributable to his resolved West Nile virus, as well. Although not recognized by providers or VA examiners, he also attributed his depressed mood to West Nile virus. However, his 30 percent PTSD rating is based, in part, on anxiety and depressed mood. And, to reiterate, prohibitions against pyramiding prevent VA from compensating him for these same symptoms twice essentially, the Board may not assign two compensable ratings based on the same symptoms. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. As alluded, the Veteran is currently rated at 40 percent for near-constant pain and fatigue under DC 5025 for fibromyalgia. To receive a higher rating under DC 6399-6354, the record would have to reflect near-constant signs and symptoms so, possibly established by near-constant pain and fatigue and depressed mood that also restrict routine daily activities to less than 50 percent of the pre-illness level or symptoms resulting in periods of incapacitation of at least six weeks total duration per year. See 38 C.F.R. § 4.88B, DC 6354. There are no such showings of restricted activities or periods of incapacitation in record. Rather, he has asserted that his West Nile "flare ups" but not to require him to miss work. In evaluating his claim, the Board may not assert its own medical opinion regarding the relationship, if any, between his near-constant symptoms and his West Nile virus; therefore, it relies on qualified, competent examiners to assess this evidence as a part of the record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Competent examiners have determined these symptoms attributable to fibromyalgia and PTSD, resulting in higher (and separate) 40 and 30 percent respective ratings for these other disabilities, and thus an overall higher rating for the Veteran. In short, he already is being compensated for his symptoms and consequent impairment. Lastly, the Board finds that the Veteran also does not have an exceptional or unusual disability picture rendering impractical application of the regular Rating Schedule standards to, in turn, warrant referring this claim for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As already discussed, his pain, fatigue, and depression are contemplated by his fibromyalgia and PTSD ratings inasmuch as these other ratings already account for the effect of his symptoms on employment and earning capacity. There is no indication on record that his present level of disability meets the criteria for a compensable schedular rating under DC 6399-6354 or under DC 6335, nor does it reflect West Nile virus symptoms, residuals, functional restrictions, or effects on employment not considered by the schedular rating criteria. Accordingly, the preponderance of the evidence is against assigning a compensable rating for the Veteran's inactive West Nile virus. And, as the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply, so his claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a TDIU The issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 452. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or singly bodily system are treated as one, collective, disability. 38 C.F.R. § 4.16(a). Here, the Veteran has the following service-connected disabilities and corresponding ratings for them: fibromyalgia, rated as 40-percent disabling; PTSD, rated as 30-percent disabling; tinnitus, rated as 10-percent disabling; and West Nile virus, rated as 0-percent disabling, so noncompensable. The combined rating for these service-connected disabilities is 60 percent, so less than the 70 percent combined rating required by 38 C.F.R. § 4.16(a). See also 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Moreover, as these disabilities do not derive from common etiology or involve any other enumerated exception, they cannot be considered as one collective disability. It is also VA's policy, nonetheless, 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(b). Thus, even when, as here, the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion the Veteran is unemployable due to service-connected disability for the time in question. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). That said, the Board has no legal authority to grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). The most the Board could do in this circumstance is refer this claim to the Director of the Compensation Service for this initial consideration. But the Board is not precluded from deciding whether this referral is warranted, though the Board does not find that it is in this instance. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, after considering both economic and noneconomic components, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Per the July 2020 statement made by Veteran's counsel, the Veteran is currently, gainfully employed. At his VA infectious disease examinations in January 2014 and May 2016, he denied functional limitations due to fibromyalgia or West Nile virus symptoms. Treatment notes reflect he stopped working jobs in construction in December 2014, and that his qualify of life improved with that change. At his October 2019 examination, he endorsed being less efficient during symptoms, but he also conceded that the does not miss work. As already discussed at length, the medical record does not reflect hospitalizations, medically ordered bedrest, or excusal from employment due to West Nile virus or fibromyalgia. The record is similarly situated regarding his PTSD insomuch as the Veteran's symptoms cause functional limitations but do not prevent him from working in a substantially gainful capacity. Again, there are no treatment notes, medical records, or lay statements suggesting that he is unable to maintain employment due to his PTSD, singularly or in combination with his other service-connected disabilities. Although he is rated for occupational and social impairment caused by PTSD symptoms, the record reflects gainful employment without interruption due to PTSD. There accordingly is no suggestion on record that the Veteran's service-connected fibromyalgia, PTSD, tinnitus, and/or West Nile virus preclude substantially gainful employment, meaning above and beyond what is contemplated by the ratings assigned for these service-connected disabilities. 38 C.F.R. §§ 4.1, 4.15. The disability rating itself (for the service-connected disability) acknowledges the disability affects or impairs the Veteran's earning capacity; this is intrinsic to the rating for the disability. Id. Moreover, generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. So, put another way, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. In sum, the Veteran's service-connected disabilities, together or separately, do not preclude him from obtaining and maintaining substantially gainful employment. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule again is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thus, the Board declines to refer this claim to the Director of the Compensation Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.