Citation Nr: 22043533 Decision Date: 08/01/22 Archive Date: 08/01/22 DOCKET NO. 15-21 338 DATE: August 1, 2022 ORDER Entitlement to a rating of 40 percent, but no higher, prior to October 30, 2009, for a muscle-joint aches and fatigue disorder is granted. Entitlement to a rating in excess of 40 percent since October 30, 2009, for a muscle-joint aches and fatigue disorder is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for bilateral hip disorder (claimed as bilateral hip pain) is remanded. Entitlement to service connection for a bilateral shoulder disorder (claimed as bilateral shoulder pain) is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of cyclic vomiting syndrome is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, prior to October 30, 2009, his muscle-joint aches and fatigue disorder manifested in constant widespread musculoskeletal pain that was refractory to therapy. 2. Since October 30, 2009, the Veteran is in receipt of the maximum schedular rating available for his muscle-joint aches and fatigue disorder. 3. The Veteran's service-connected muscle-joint aches and fatigue disorder and psychiatric disabilities would preclude his ability to maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, prior to October 30, 2009, for a muscle-joint aches and fatigue disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.10, 4.71a, Diagnostic Code (DC) 8850-5025. 2. The criteria for a rating in excess of 40 percent since October 30, 2009, for a muscle-joint aches and fatigue disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.6, 4.10, 4.71a, DC 8850-5025. 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, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to April 1989; and from December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in May 2019 for additional development. With regards to the issues being decided herein, the Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to increased ratings for a muscle-joint aches and fatigue disorder. The Veteran seeks increased ratings for his muscle-joint aches and fatigue disorder (MJF disability). For the reasons that follow, the Board finds that an increased 40 percent rating is warranted prior to October 30, 2009, but that a higher rating is not warranted thereafter. The appeal period before the Board begins on January 30, 2005, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's MJF disability it currently rated 10 percent disabling prior to October 30, 2009, and 40 percent disabling thereafter pursuant to DC 8850-5025. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 8850 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the musculoskeletal diseases found in VA's Rating Schedule, and DC 5025 is the code for fibromyalgia. Under DC 5025, a 10 percent evaluation is warranted where there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel syndrome, depression, anxiety or Raynaud's-like symptoms that require continuous medication for control. A 20 percent evaluation is warranted when those symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent evaluation is warranted when those symptoms are constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71a, DC 5025. Preliminarily, the Board notes that there has been some confusion as to whether the Veteran's rating for his MJF disability includes his joint pain in his bilateral shoulders and hips, which he contends is the most severe. The evidence of record indicates that his bilateral shoulder and hip pain are part of his service-connected MJF disability. VA treatment records shows that when the Veteran was seen for his MJF disability, pain in the bilateral hips and shoulders were noted. A January 2006 VA treatment record shows that the treating provider indicated that the Veteran's joint pain, including the pain in his bilateral shoulders and hips, were more consistent with Gulf War Syndrome. See July 2005 VA treatment record; October 2005 VA treatment record; January 2006 VA treatment record; June 2006 VA treatment record. Additionally, when the Veteran underwent VA examinations in March 2004 and June 2006 to evaluated his MJF disability, the examiner considered the Veteran's bilateral shoulder and hip pain in evaluating his disability. Accordingly, as the evidence of record indicates that the Veteran's bilateral shoulder and hip pain is associated with his MJF disability, the Board will consider such symptomatology in rating the Veteran's disability. After a review of the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced constant joint pain that was refractory to treatment prior to October 30, 2009, warranting a 40 percent rating. In this regard, July 2005 and October 2005 VA treatment records shows that the Veteran reported constant pain in his joints. A February 2006 VA treatment record shows that the Veteran reported "pretty constant pain." During the June 2006 VA examination, the Veteran reported that his aches and pains are present all the time. It also was noted at the June 2006 VA examination that treatment did not help his aches and pains, indicating that his constant joint pains were refractory to treatment. However, the Board finds that a rating in excess of 40 percent is not warranted at any point during the appeal period as this is the maximum schedular rating available under DC 5025. Thus, a rating higher than 40 percent is not available. While the Board acknowledges the Veteran's reports of joint pain and stiffness, fatigue, and sleep disturbance due to his joint pain, such symptomology and functional effects are fully contemplated by the rating criteria. See DC 5025 (expressly noting symptoms of joint pain, stiffness, fatigue, and sleep disturbance). In granting a 40 percent rating prior to October 30, 2009, the Board acknowledges the October 2005 VA treatment record in which the Veteran reported that his pain had progressed to constant pain in the joints, indicating that the Veteran's disability may have increased in severity in the one year prior to January 2006 claim for an increased rating. However, a further review of the evidence of record shows that the Veteran's disability increased in severity more than one year prior to his January 2006 claim. In this regard, a July 2002 VA treatment record shows that the Veteran reported constant pain in his joints with acute exacerbations. At a March 2004 VA examination the Veteran also reported continuous joint pain. Moreover, a November 2007 VA treatment record shows that the Veteran reported that his symptoms became more constant in 1998. Accordingly, as the evidence of record indicates that the Veteran's joint pain increased in severity more than one year prior to his January 2006 claim for an increased rating, a higher rating is not warranted prior to the date of his claim. In sum, the Veteran's MJF disability has more nearly approximated the rating criteria for a 40 percent rating for the entire appeal period. This is the maximum schedular rating available under the applicable diagnostic code. There are no additional expressly or reasonably raised issues presented on the record related to this claim. 2. Entitlement to a TDIU. The Veteran contends that his service-connected disabilities preclude his ability to obtain or maintain substantially gainful employment. For the reasons that follow, the Board finds that a TDIU is warranted. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court's March 2019 Panel Decision, it explained that "substantially gainful employment" contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; 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. Id. For the purpose of one 60 percent disability or one 40 percent disability, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. Id. The Veteran is service-connected for: (1) adjustment disorder with anxiety and depressed mood/major depression, rated 50 percent disabling from January 30, 2006; (2) MJF disability, now rated 40 percent disabling from January 30, 2006; (3) and chronic undiagnosed illness manifested by cyclic vomiting syndrome, rated 10 percent disabling since April 13, 2006. The Veteran's combined evaluation is now 70 percent from January 30, 2006. Given the forgoing, the Veteran meets the schedular criteria for a TDIU for the entire appeal period. 38 C.F.R. § 4.16(a). The evidence of record shows that the Veteran last worked full time in July 2001. See November 2006 Veterans Application for Increased Compensation Based on Individual Unemployability (VA 21-8940). The Veteran completed high school, and his work history includes work as a manager, a delivery driver, as well as owning his own janitorial business. Id. In light of the Veteran's education and work history, the Board finds that he would have the proficiency to work in an unskilled physical labor position as well as a non-physical labor position, such as in an office performing administrative or clerical work. In regards to the non-physical labor position, although the Veteran only completed high school, he has managerial experience and owned his own business. Both of those positions likely would have involved performing some type of clerical or administrative work. Thus, the Board finds that that the Veteran would have the proficiency to work in an office-like setting. In a June 2021 VA fee-based opinion, the examiner opined that the Veteran's struggles with managing pain would make it challenging for him to engage in heavy work roles. However, while the Veteran may have the proficiency to work in either of the aforementioned positions, after reviewing the evidence of record, the Board finds that his service-connected disabilities would preclude such work. As explained in detail above, the Veteran's MJF disability manifests in constant joint pain which would preclude a position involving any type of physical labor. The Board also finds it likely that his service-connected psychiatric disability and MJF disability would preclude work an office-like setting. In this regard, the evidence of record shows that the Veteran experiences issues with anger and irritability that affects his relationships. An October 2009 VA treatment record notes that the Veteran had problems with anger and is unable to back down when he is in an argument. A December 2009 VA treatment record shows that the Veteran was isolative and reluctant to engage with others because of his anger and rage and that he had difficulty controlling his anger when upset. An October 2014 VA treatment record notes that the Veteran had an irritable mood and was quick to anger. A November 2018 private treatment record noted unprovoked hostility and irritability. Moreover, at the June 2021 VA examination, the examiner noted that the Veteran had limited social interactions due ot being irritable and angry. The Board finds the Veteran's issues with anger and irritability would reasonably result in significant difficulty functioning in an office-like setting because these symptoms would likely negatively impact interactions with coworkers and supervisors. In the June 2021 VA fee-based opinion, the examiner also opined that the Veteran's struggles with pain management and depression would make it challenging to sustain concentration in a job that would require him to multitask. A position in an office like setting likely would require the Veteran to multi-task. Thus, the Veteran's issues with anger and irritability due to his psychiatric condition as well as concentration issues due to his psychiatric and MJF disability would preclude work in an office-like setting. Accordingly, resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. As such, the claim for a TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip and a bilateral shoulder disorder. The Veteran seeks service connection for a bilateral hip and bilateral shoulder disorder. While the Board regrets further delay, it finds that additional development is necessary prior to adjudication. There is conflicting evidence of record as to whether the Veteran has clinical diagnoses related to the bilateral hip and shoulders. A March 2004 x-ray notes an impression of mild degenerative joint disease of the bilateral hips. A March 2016 x-ray notes an impression of mild degenerative changes of the right shoulder as well as the bilateral hips. Pursuant to the Board's May 2019 remand, the Veteran underwent a VA fee-based examination in September 2019 at which time the examiner diagnosed the Veteran with right hip arthritis and a left hip strain. However, the Veteran underwent another VA fee-based examination January 2022 at which time the examiner found no diagnoses related to the bilateral hips or shoulders, and opined that the Veteran did not have arthritis of either hip. Although the Veteran's bilateral shoulder and hip pain has been considered in rating his MJF disability, the Veteran can still be awarded service connection for any conditions of the bilateral hips and shoulders that are separate and distinct from his MJF disability. In light of the foregoing, the Board finds that a remand is necessary in order to clarify whether the Veteran has clinical diagnoses related to the bilateral hip and shoulders that are separate and distinct from his service-connected MJF disability, and if so, whether such are related to service or secondary to any service-connected conditions. 2. Entitlement to an initial rating in excess of 10 percent for residuals of cyclic vomiting syndrome. The Veteran seeks an increased rating for his cyclic vomiting syndrome. The Board finds that a remand is waranted as there may be outstanding, relevant private treatment records. At the September 2018 Board hearing, the Veteran reported that he had received treatment for his vomiting from St. Clare Hospital. A February 2019 VA Oustide Record Review Note shows that a December 2018 emergency room note from St. Clare Hospital was reviewed and sent for scanning. However, a copy of this treatment record is not associated with the record. See also August 2013 and July 2016 VA treatment records (noting treatment for vomiting/dehydration at St. Clare Hospital). However, no records from St. Clare Hospital are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for St. Clare Hospital. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed bilateral hip disorder. The examiner must review the claims file and a copy of this Remand. The examiner is asked to opine: a) Does the Veteran have a clinical diagnosis(es) related to the right hip? b) Does the Veteran have a clinical diagnosis(es) related to the left hip? c) If the Veteran has a clinical diagnosis related to either the right or left hip, is it at least as likely as not that the hip condition had its onset in, or is otherwise related to, active service, to include an anti-anthrax vaccine. d) The examiner also is asked to opine whether it is at least as likely as not that the Veteran's right or left hip disability is caused or aggravated by any of his service-connected disabilities. The term "aggravation" means a worsening of a disability beyond its natural progression. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed bilateral shoulder disorder. The examiner must review the claims file and a copy of this Remand. The examiner is asked to opine: a) Does the Veteran have a clinical diagnosis(es) related to the right shoulder? b) Does the Veteran have a clinical diagnosis(es) related to the left shoulder? c) If the Veteran has a clinical diagnosis related to either the right or left shoulder, is it at least as likely as not that the shoulder condition had its onset in, or is otherwise related to, active service, to include an anti-anthrax vaccine. d) The examiner also is asked to opine whether it is at least as likely as not that the Veteran's right or left shoulder disability is caused or aggravated by any of his service-connected disabilities. The term "aggravation" means a worsening of a disability beyond its natural progression. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.