Citation Nr: 1425982	
Decision Date: 06/09/14    Archive Date: 06/16/14

DOCKET NO.  11-04 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an effective date earlier than March 16, 2010, for an increased rating of 40 percent for fibromyalgia.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. Archer, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1988 to October 1991.  

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which increased the Veteran's disability rating for fibromyalgia from 10 to 40 percent, effective March 16, 2010.  

The Veteran requested a Travel Board hearing at the RO in Boise, Idaho.  However, in correspondence dated September 2011, he requested to withdraw his hearing request.  38 C.F.R. § 20.702(e).


FINDING OF FACT

The Veteran's request for an increased rating for fibromyalgia was received on March 16, 2010, and a factually ascertainable increase in disability was not shown to have occurred within one year leading up to the March 16, 2010 claim.  


CONCLUSION OF LAW

The criteria establishing an effective date prior to March 16, 2010, for the assignment of a 40 percent rating for fibromyalgia have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400, 4.71a, Diagnostic Code 8850-5025 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required with regard to downstream issues; and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

VA also has a duty to assist.  The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include service treatment records, reports of VA examination, and statements from the Veteran and his spouse.  

The Veteran was afforded VA examinations in July 2010.  The resulting examination report is adequate as it based on consideration of the Veteran's medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision

Neither the appellant nor the Veteran's representative have asserted, nor is it evident from the record, that any additional evidence relevant to the issue decided is available and not part of the claims file.  As there is no indication of additional assistance that would be reasonably likely to aid in substantiating the appeal, further VCAA assistance is not required.  38 U.S.C.A. § 5103A(a)(2) (West 2002).

II. Earlier Effective Dates

The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. 

The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received within one year of such date.  Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o) (2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper; 38 C.F.R. § 3.400(o)(1),(2); VAOPGCPREC 12- 98 (1998).

A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p)(2013).  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a)(2013). 

Additionally, the submission of certain medical records may constitute an informal claim for an increase in disability compensation.  38 C.F.R. § 3.155(a). 

When considering informal claims based on medical records, the date of claim will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment; and the date of receipt for evidence from a private physician, layman, state, or other institution.  See 38 C.F.R. §§ 3.155(c); 3.157(b)(2013).

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In July 2010, the RO assigned a 40 percent rating for the Veteran's fibromyalgia under Diagnostic Code 8850-5025.  

Diagnostic Code 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.  In this case, the Veteran's joint pain has been rated as analogous to fibromyalgia, which is evaluated under Diagnostic Code 5025. 

DC 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance stiffness, paresthesia, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.  A Note to DC 5025 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.  38 C.F.R. § 4.71a, Diagnostic Code 5025 (2013).  

Under Diagnostic Code 5025, a 10 percent rating is appropriate for symptoms that require continuous medication for control.  A 20 percent rating is appropriate for symptoms that 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.  The highest rating of 40 percent rating is warranted for symptoms that are constant, or nearly so, and are refractory to therapy.  Id. 

III.  Analysis

The Veteran contends that the 40 percent rating should have been made effective on March 23, 2007 when fibromyalgia was diagnosed on VA examination.

A May 2008 Board decision denied entitlement to an initial rating in excess of 10 percent for fibromyalgia.  Board decisions are final when issued unless the Chairman orders reconsideration.  The Chairman has not ordered reconsideration of the May 2008 Board decision; therefore, this decision became final.  38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100.  

The Veteran has not alleged a clear and unmistakable error in the Board decision, and the decision included discussion of the March 23, 2007 VA examination.  The Board found that the examination did not show flare-ups more than one-third of the time, as was needed for a rating in excess of 10 percent.  The examination report noted that the "claimed condition of fibromyalgia has been treated by anti-inflamatories," and that the Veteran was service connected for a condition defined as fibromyalgia.  The examiner did not list a current diagnosis of fibromyalgia.  More importantly, while the examiner did report exacerbations of joint pain, there were no specific reports of exacerbations that were continuous (as needed for a 40 percent rating) or exacerbations that were present more than one third of the time.

Because the Board decision is final, the effective date for the 40 percent rating is arrived at by determining when the claim for increase was received after that decision; and when the increase in disability was factually ascertainable.  The record shows that after the May 2008 Board decision, he filed no further correspondence regarding the severity of his fibromyalgia until he filed his claim for an increased rating in March 2010. 

Although VA treatment records may constitute an informal claim for increase as the date of their creation, there includes no VA treatment records between May 2008 and March 2010; and there were no private treatment records during this period.  See 38 C.F.R § 3.157.  

In sum, the claims file contains no claims, whether formal or informal, filed after the May 2008 Board decision, but prior to the March 2010 claim now on appeal.  See 38 C.F.R. § 3.400(o). 

A remaining question is whether the increase became factually ascertainable during the year prior to the March 2010 claim.  Arguably, the Veteran's March 2010 claim is evidence of worsening, although he did not specifically report any worsening.  The claims file contains no evidence demonstrating the severity of the disability until a VA examination was performed in July 2010.  At the examination, the Veteran reported that his fibromyalgia had worsened.  The examiner confirmed the diagnosis of fibromyalgia with associated myalgia (muscle pain) and noted a lack of stamina and weakness and fatigue.  The examiner further concluded that the Veteran's irritable bowel syndrome (IBS) symptoms were a result of the fibromyalgia.  The Board finds that an increase was not factually ascertainable prior to March 2010.  

As the preponderance of the evidence is against the appeal, it must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

An effective date earlier than March 16, 2010 for the assignment of a 40 percent rating for fibromyalgia is denied.



____________________________________________
Mark D. Hindin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs