Citation Nr: 1313579 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-00 417A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial disability rating for fibromyalgia, currently evaluated as 40 percent disabling. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to August 1991, and from February 1994 to September 1996. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision of the RO that granted service connection for chronic fibromyalgia syndrome evaluated as 20 percent disabling effective the day following active service on September 21, 1996. The Veteran timely appealed for a higher initial rating. In September 2007, the RO increased the disability evaluation to 40 percent for chronic fibromyalgia syndrome, effective September 7, 2007. Subsequently, the RO assigned an earlier effective date of September 21, 1996, for the initial 40 percent disability rating for chronic fibromyalgia syndrome. Because higher evaluations are available for chronic fibromyalgia syndrome, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2010, the Veteran testified during a hearing before the undersigned at the RO. In July 2012, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran's claim for entitlement to a TDIU already has been awarded, and the Veteran has not appealed the effective date of the award. Consequently, the matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDINGS OF FACT 1. For the rating period prior to February 17, 2010, the Veteran's fibromyalgia has been manifested by widespread musculoskeletal pain and tender points; these symptoms are shown by competent evidence to be constant, or nearly so, and refractory to therapy; periods of incapacitation are not demonstrated. 2. For the period from February 17, 2010, the Veteran's fibromyalgia has been manifested by widespread musculoskeletal pain and tender points shown by competent evidence to be constant or nearly so, and by a debilitating fatigue that restricts routine day activities to less than 50 percent of the pre-illness level. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 40 percent, for the rating period prior to February 17, 2010, for fibromyalgia are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5025; 4.88b, Diagnostic Code 6354 (2012). 2. The criteria for a 60 percent disability rating, for the period from February 17, 2010, for fibromyalgia with a debilitating fatigue are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.88b, Diagnostic Code 6354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluations assigned following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated; additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to this claim for a higher initial disability rating have been obtained, to the extent possible. The RO or AMC provided the Veteran with appropriate VA examinations, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to this claim. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is also competent to report symptoms of muscle pain, tender points, fatigue, sleep disturbance, stiffness, paresthesias, and headache. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Service connection has been established for chronic fibromyalgia syndrome. The RO has evaluated the Veteran's disability under Diagnostic Code 5099-5025, as 40 percent disabling based on widespread pains and muscle weakness that are constant or nearly so, and refractory to therapy. A hyphenated diagnostic code generally reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Pursuant to Diagnostic Code 5025, fibromyalgia is rated as 40 percent disabling-which is the maximum rating under this diagnostic code-when there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, that are constant or nearly so and refractory to therapy. A Note following the rating criteria provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. [Parenthetically, the Board notes that VA first added Diagnostic Code 5025 to the rating schedule for evaluation of fibromyalgia on May 7, 1996.] During a November 1996 VA examination, the Veteran complained of back pain; knee pain, headaches; weight gain; fatigue; and chest pain. He needed glasses to see, and had hearing loss in both ears and a congested nose. Examination was essentially normal. Diagnoses included migraine headaches, chest pain from history, anxiety, possible asthma, fatigue of unknown etiology, and hearing loss. The report of a December 1996 VA examination includes diagnoses of chronic fibromyalgia syndrome involving multiple trigger points in the muscles; polyarthralgia, bilaterally; history of depression; history of sleep disturbance; and no specific knee or muscle disease found. Objective findings at the time revealed trigger points seen on the right neck area below various muscles and left wrist, and bilaterally on the paraspinal areas. There was neither swelling nor deformity of the shoulder, and range of motion was full. Elbow examination showed no swelling and no gross tenderness, and there was full range of motion. Hand function was intact, and gait was stable. There was full range of motion of lower extremity joints. VA treatment records show that the Veteran continued to have problems with muscle spasms and tightness in his muscles, pain in his shoulders, and trouble walking up a flight of steps in January 2004. Clinical evaluation at the time revealed full range of motion in the shoulders; no muscle spasms; no synovitis in fingers or wrists or elbows; no knee or ankle effusion or pain; and no tender trigger points associated with fibromyalgia. During a March 2005 VA examination, the Veteran reported experiencing severe pain; stiffness; and occasional muscle spasms involving the neck, back, shoulders, arms, hips, and thighs. He reported that the pain was constant and severely limited his activities of daily living. The Veteran reportedly was able to dress, eat, groom, and transfer independently. The examiner noted that the Veteran's pain was distracting, and limited him both socially and occupationally. He also had constant daily fatigue and sleep disturbance, secondary to pain. The Veteran reported no gastrointestinal symptoms, and had been on no treatment. He did report daily anxiety and depression. He was unable to work secondary to constant pain, and retired medically in September 2003. Examination in March 2005 revealed that the Veteran's fibromyalgia was currently active, and involved areas of the trapezius, bilateral deltoids, triceps, biceps, forearms, and paraspinal musculature and thighs. At the time there was no joint swelling and no trigger points, and ranges of motion were normal. Muscle strength in areas involved was 5/5. The report of an August 2005 VA examination reflects continuing symptoms of muscle pain, generalized, but especially in the thighs, legs, and back due to increased pain and fatigue. The examiner noted that the Veteran was unable to fully move joints due to pain, which interfered with activities of daily living-such as tying shoe laces. Records show decreases in the ranges of motion of the hip by 15 degrees, and of the knee by 10 degrees on repetitive motion with increased pain. During flare-ups, his pain increased; and the Veteran was partially functionally impaired. Private treatment records, dated in May 2006, reflect that the Veteran met criteria both for fibromyalgia and for chronic fatigue syndrome. The physician noted that the Veteran was unable to work due to pain, which became unbearable with minimal exertion; and that the Veteran demonstrated objective evidence of poor physical function consistent with his reported inability to engage in meaningful employment. It was recommended that the Veteran carefully increase his aerobic activity slowly while monitoring negative consequences on his fatigue and pain. Pool therapy was considered a low-risk option. The report of a September 2007 VA examination reflects complaints of severe muscle pain every day with stiffness and weakness, and unexplained fatigue and sleep disturbance. The Veteran also reported headaches of a tension type, and paresthesias in the hands, and some swelling. The examiner found that the Veteran met eight of the possible ten criteria for chronic fatigue syndrome. Examination revealed generalized muscle aches and weakness, and fatigue lasting 24 hours or longer after exercise. The Veteran also had headaches, and migratory joint pains. His depression was treated with antidepressants, and he had sleep disturbance. VA examinations in January 2008 and in June 2008 revealed no localized area of spasm; muscle strength in all areas involved was 4/5, although the Veteran complained of pain on testing muscle strength against resistance. The Veteran reported that his muscle spasm and spasticity prevented him from doing any occupation which required walking for more than 50 yards; and doing any bending, stooping, or lifting, or standing for more than 15 minutes. Examination revealed no ankylosing spondylitis and no fixed firm chest wall rigidity, except for constant moderately severe hypertonus of all skeletal muscles including the chest wall muscles. The Veteran had marked dyspnea on minimal exertion of just the effort to stand up; and he stopped talking between sentences to catch his breath. Following examination on February 17, 2010, a VA examiner noted that fibromyalgia and chronic fatigue syndrome have overlapping symptoms; and opined that the Veteran's disability picture was more likely fibromyalgia. Nevertheless, the examiner found that the Veteran's new onset of debilitating fatigue was severe enough to reduce or impair average daily activity below 50 percent of the Veteran's pre-illness activity level for a period of six months. Records show that the Veteran was hospitalized in a non-VA facility for deep vein thrombosis of the right upper extremity in April 2010. In August 2010, the Veteran testified that he still had muscle weakness, and could not walk too far; and that it became painful to stand too long, and that his arms and legs swelled. He testified that he was unable to work due to his service-connected disability. Following examinations on June 10, 2011, a VA examiner noted the Veteran's medical history; and opined that the Veteran's resolved, recurring right upper extremity deep vein thrombosis, possibly with recurring pericarditis, was not likely caused by fibromyalgia. The Veteran reported the following joint symptoms involving his hips and knees: instability, stiffness, weakness, incoordination, decreased speed of joint motion, locking episodes, and symptoms of inflammation. He reported no flare-ups of joint disease, and the examiner noted no constitutional symptoms of arthritis and no incapacitating episodes. The Veteran reportedly could stand for 15 to 30 minutes; he could not walk for more than a few yards, and he always used a cane or walker. With regard to his fatigue, the Veteran reported that it was constant or nearly so, and lasted longer than 24 hours after exercise. He reported that he could start chores like dust mop the floors, but that he could not finish one room. He also reported that he could not stand over a stove to cook a meal, and he ate lots of frozen dinners. Nor could he do laundry. He reported the percentage of restriction of routine daily activities as 70 percent. Following examination, the examiner indicated that at least six of the ten diagnostic criteria for chronic fatigue syndrome were not met. Examination of the right and left hip, and right and left knee in June 2011 revealed no objective evidence of pain with ranges of motion; and no additional limitation of ranges of motion on repetitive testing. The examiner noted no fatigue, weakness, or incoordination. Ranges of motion of each thigh were to 90 degrees on flexion, with pain from 45 degrees; and to 20 degrees on abduction, with pain from 10 degrees. Ranges of motion of each knee were to 90 degrees on flexion, with pain. X-rays of both hips revealed no evidence of fractures or dislocations, and no significant arthritic changes. X-rays of both knees revealed that joint spaces were normal, and there was no evidence of fracture or dislocation. Examination of the upper and lower extremities in June 2011 also revealed that mild peripheral neuropathies were considered as at least as likely as not caused by service-connected fibromyalgia. Following the Board's July 2012 remand, the Veteran's Social Security records were associated with his claims file. In this case, based on the Veteran's demonstrated symptoms of fibromyalgia that are constant, or nearly so, and refractory to therapy, the Board finds that the currently assigned 40 percent disability rating has been met under Diagnostic Code 5025 for the initial period on appeal, from September 21, 1996. Here, even considering functional loss due to pain and other factors, no more than the maximum 40 percent assignable under Diagnostic Code 5025 is possible. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). It is the maximum schedular rating allowed for fibromyalgia. Nor is there evidence that the Veteran has significant limitation of motion of the joints, or has disability comparable to ankylosis, to meet the criteria separately for compensable limitation of motion of each joint (i.e., Diagnostic Codes 5201, 5257, 5260, 5261, 5271). In essence, no more than an initial 10 percent disability rating is warranted based on painful motion and functional loss due to pain and other symptoms as contemplated by Deluca. In this regard, care must be taken not to evaluate the same manifestations of a disability under more than one applicable code, which would constitute "pyramiding". See 38 C.F.R. § 4.14. Therefore, as 40 percent is greater than 10 percent, the 40 percent rating currently assigned pursuant to the fibromyalgia code is more beneficial to the Veteran than rating the joints separately. Alternatively, given the Veteran's fatigue symptoms that have been associated with his fibromyalgia, the Board will also consider whether a higher rating is available pursuant to 38 C.F.R. § 4.88b, Diagnostic Code 6354, which describes the criteria for chronic fatigue syndrome. That code evaluates based on debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms, which wax and wane but result in periods of incapacitation. Symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year, warrant a 40 percent rating. Symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year, warrant a 60 percent evaluation. A 100 percent disability rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 38 C.F.R. § 4.88b, Diagnostic Code 6354. A Note following the rating criteria provides that, for purposes of evaluating this disability, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Id. In this case, prior to the February 17, 2010 VA examination, the evidence shows that the Veteran experienced severe pain at times; and that his pain was distracting and limited him socially and occupationally. He did medically retire from work in September 2003. The evidence does not show, however, that the Veteran's severe muscle pain with stiffness and weakness, and unexplained fatigue and sleep disturbance had restricted routine daily activities to less than 50 percent of the pre-illness level. In fact, the March 2005 examiner indicated that the Veteran was able to dress, eat, groom, and transfer independently; and that he preferred to sit and rest, though he had constant daily fatigue and sleep disturbance secondary to pain. Nor were there findings of waxing and waning, nor periods of incapacitation of at least six weeks in any year. His disability, thus, does not meet the criteria for a higher initial disability rating under Diagnostic Code 6354 prior to February 17, 2010. 38 C.F.R. §§ 4.7, 4.21. Therefore, the 40 percent rating pursuant to DC 5025 for fibromyalgia is most appropriate. In this regard, the Board has considered the Court's holding in Deluca. While the Veteran reported functional limitations in bending, lifting, or standing for more than 15 minutes, no flare-ups of pain have been reported; and the March 2005 examiner noted no trigger points. These objective findings outweigh the Veteran's lay assertions regarding severity. For these reasons, the Board concludes that an initial disability rating in excess of 40 percent prior to February 17, 2010, is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. As of the February 17, 2010 VA examination, the evidence reveals a debilitating fatigue that restricted routine daily activities to less than 50 percent of the pre-illness level sufficient to warrant a 60 percent, but no higher, disability rating under Diagnostic Code 6354. The Board notes, however, that there have been no findings of nearly constant debilitating symptoms that almost completely restrict daily activities. In fact, the Veteran reported in June 2011 that he could accomplish some of his chores, though had difficulty completing them. Moreover, the June 2011 examiner noted findings of mild peripheral neuropathies. Under Diagnostic Code 8510, mild peripheral nerve injury involving the shoulder warrants a 20 percent rating; and under Diagnostic Code 8520, mild peripheral nerve injury involving lower extremity warrants a 10 percent rating. See 38 C.F.R. § 4.124a. Again, the evidence does not reflect that the Veteran has significant peripheral neuropathies to meet the criteria separately for a combined disability rating in excess of 60 percent, even with application of the bilateral factor. 38 C.F.R. §§ 4.25, 4.26. Thus, based on the medical evidence of record, and given the nature of the Veteran's disability, the Board finds that there is no other potentially applicable diagnostic code pursuant to which a rating could be assigned in excess of 40 percent prior to February 17, 2010; and in excess of 60 percent from February 17, 2010. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluations assigned for the Veteran's service-connected fibromyalgia are adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. As noted above, the Veteran has been awarded a TDIU. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, a preponderance of the evidence is against a higher initial disability rating for fibromyalgia prior to February 17, 2010; and is in favor of a 60 percent, but no higher, evaluation for fibromyalgia with a debilitating fatigue from February 17, 2010. ORDER An initial disability evaluation in excess of 40 percent for fibromyalgia, for the period prior to February 17, 2010, is denied. A 60 percent disability rating for fibromyalgia with a debilitating fatigue, for the period from February 17, 2010, is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs