Citation Nr: 0304656 Decision Date: 03/13/03 Archive Date: 03/24/03 DOCKET NO. 97-24 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a rating in excess of 40 percent for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Associate Counsel INTRODUCTION The appellant is a veteran who had active service from September 1981 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for fibromyalgia, rated 20 percent, and denied service connection for bilateral hearing loss and tinnitus. In a November 1997 rating decision, the RO assigned a 40 percent rating for fibromyalgia, based on associated depression. When this case was previously before the Board in January 1999, the issues of the rating for fibromyalgia and service connection for bilateral hearing loss and tinnitus were remanded for further development. Additionally, the RO was instructed to adjudicate the veteran's claim that depression was a separate, service-connectable disability entity. In a November 2002 rating decision, the RO granted service connection for Meniere's Syndrome, to include bilateral hearing loss and tinnitus, and for a major depressive disorder as secondary to fibromyalgia. Because the November 2002 decision awarding service connection was a full grant of those benefits sought on appeal, there remains no question of fact or law before the Board with respect to those issues. The rating of the veteran's service-connected fibromyalgia is the sole issue currently before the Board. She testified at a hearing before the undersigned in January 1999. The evidence submitted by the veteran and her contentions appear to raise a claim of entitlement to a total disability rating based on individual unemployability (TDIU). This matter is referred to the RO for any appropriate action. FINDING OF FACT The veteran's fibromyalgia is manifested by nearly constant pain of the joints and muscles, muscle spasm, fatigue, difficulty sleeping, headaches, gastroesophageal reflux disease, and disturbances of her menstrual cycle; the evidence does not show an unusual or exceptional disability picture due to fibromyalgia. CONCLUSION OF LAW A rating in excess of 40 percent for fibromyalgia is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Code 5025 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA); codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. Regulations implementing the VCAA have now been promulgated. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA and implementing regulations apply in the instant case. See VAOPGCPREC 11-2000. The Board finds that there has been substantial compliance with the mandates of the VCAA and implementing regulations. Well-groundedness is not an issue. The record includes service medical records, VA treatment and examination reports, private medical records, and military dependent treatment records. The appellant was notified of the applicable laws and regulations. The Board remand, the rating decisions, the statement of the case, and the supplemental statement of the case have informed her what she needs to establish entitlement to the benefit sought and what evidence VA has obtained. She was notified of the enactment and provisions of the VCAA, including of her and VA's relative responsibilities in development of evidence, in February 2002 correspondence and in the November 2002 supplemental statement of the case. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background Service medical records reveal persistent complaints of vague joint and muscle pains from 1983 through the end of service. A service separation examination report is not available. Dependent medical records from December 1988 to July 1989 reveal that the veteran reported a longstanding history of joint pain. Private medical records from August 1993 to June 1998 reveal continued complaints of and treatment for multiple joint pains. In February 1995, bursitis of the left shoulder was diagnosed, and in March 1996 the veteran was treated for back pain. X-rays were negative. In February 1997, a treating doctor noted that the veteran has had numerous flare-ups of aches and pains due to fibromyalgia. The pains could last several days, and recently back pain had become constant. In April 1997, a second treating doctor noted that the fibromyalgia caused musculoskeletal pain, fatigue, sleep disturbances, irritable bowel symptoms, depression, and Reynaud's-like symptoms. The symptoms were constant, but grew worse during flare-ups. Her symptoms caused loss of time at work. In May 1998, the veteran was reported to be "doing poorly." She "hurt everywhere." She had numerous tender points on examination. In June 1998, a doctor stated that fibromyalgia would not cause swelling or joint tenderness, or cause limitation of motion. There would be, however, certain tender points and pain. On September 1996 VA orthopedic examination, the veteran was evaluated for low back pain. A history of fibromyalgia was noted. Range of motion was 80 degrees flexion, 20 degrees extension, and 20 degrees bilateral rotation. There was pain on motion with all movements, and pain was the limiting factor. X-rays were essentially normal. Fibromyalgia and mechanical back pain were diagnosed. The examiner commented that fibromyalgia was a "very confusing syndrome." Because the symptoms wax and wane, it was difficult to attribute disability. VA treatment records from September 1996 to April 1998 show the veteran complained of musculoskeletal pain. X-rays were unremarkable. In April 1997, the veteran's supervisor noted that the veteran had numerous sick leave absences from 1993 to 1997 due to symptoms of fibromyalgia. Additionally, she had left work early on several occasions. On June 1997 private psychiatric examination, the veteran reported that she was diagnosed with fibromyalgia in 1995, but had symptoms since 1983. Her depressive symptoms were worsening. On July 1997 VA examination, the veteran reported a history of fibromyalgia, manifested by pains in her low back, neck, shoulders, and knees. She reported the pain was not accompanied by swelling. The clinical examination was normal. In September 1998, the veteran's husband submitted a statement describing her symptoms and treatment course. She had numerous, at times incapacitating, aches and pains. She had difficulty sleeping, and her menses did not occur for months. He further reported that she was constipated, had daily headaches, and was weak and tired. On April 1999 private psychiatric examination, a private doctor opined that the veteran's chronic pain due to fibromyalgia and her depressive symptoms caused significant restrictions in her daily activities. On July 1999 VA examination, the veteran reported that she cried a lot and was depressed. Physical examination showed no joint swelling or tenderness, but the veteran did have difficulty moving her arms and walking. In April 2000, an addendum to the report was submitted by a second doctor following an examination of the veteran. The examiner opined that the veteran's major depressive disorder was related to fibromyalgia, but it was also treated as a separate disability entity. On December 2000 VA examination, the veteran reported diffuse joint and muscle aches and pains in her arms and legs. She had spasms of her neck muscles. She reported difficulty sleeping, fatigue, headaches, depression, chronic constipation, gastroesophageal reflux symptoms, and disturbances of her menstrual cycle. Her symptoms were worse with cold weather. On examination, there was tenderness to palpation of the neck muscles, both shoulder joints, both upper arms and elbows, and both knees. Grip strength was slightly decreased in the right hand. Active fibromyalgia was diagnosed. Analysis Disability evaluations are determined by the application of the 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. Part 4. Where there is a question as to which of two ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the issue involves the assignment of an initial rating for a disability following the award of service connection for disability, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the veteran's symptoms have remained relatively consistent throughout the appeals process, and hence "staged ratings" are not appropriate. Fibromyalgia has been rated 40 percent under Code 5025. This is the maximum schedular rating available, and is assigned for constant or nearly constant 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, refractory to therapy. 38 C.F.R. § 4.71a, Code 5025. All the symptoms associated with fibromyalgia in this case are encompassed in the 40 percent rating assigned. Accordingly, a rating in excess of 40 percent is not warranted unless the evidence demonstrates an exceptional or unusual disability picture which renders the application of the rating schedule impractical, in which case the disability would be referred for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b). Circumstances warranting consideration of an extraschedular rating, based on the physical symptoms of fibromyalgia, are not present. While some impact on employment is shown, marked interference due solely to the fibromyalgia (excluding consideration of the other service connected disabilities) is not. Furthermore, frequent hospitalizations for fibromyalgia are not shown. Several doctors have opined that depression associated with fibromyalgia does markedly interfere with employment. However, depression is separately rated, and may not be considered again in rating fibromyalgia. 38 C.F.R. § 4.14. As was noted above, the veteran's contentions appear to raise the matter of individual unemployability. The RO has not yet adjudicated that issue, and it has been referred to the RO for appropriate action. ORDER A rating in excess of 40 percent for fibromyalgia is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.