Citation Nr: 0945243 Decision Date: 11/30/09 Archive Date: 12/04/09 DOCKET NO. 06-28 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for degenerative disc disease (DDD), lumbar spine, (also claimed as sciatica and herniated nucleus pulposus L5/S1). 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease (DDD), cervical spine. 3. Entitlement to an initial rating in excess of 10 percent for chronic fatigue syndrome (CFS). 4. Entitlement to an initial rating in excess of 10 percent for fibromyalgia. 5. Entitlement to an initial rating in excess of 10 percent for vitiligo. 6. What initial rating is warranted for seborrheic dermatitis? REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in June 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, granted service connection for DDD lumbar spine evaluated as 30 percent disabling; and service connection for DDD cervical spin, chronic fatigue syndrome (CFS), fibromyalgia, and vitiligo and seborrheic dermatitis each evaluated as 10 percent disabling. All were effective as of June 1, 2003. The Veteran disagreed with these decisions. Under Fenderson v. West, 12 Vet. App. 119, 125-26 (1999), when a Veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of the disorder since the effective date of service connection. The Board has recharacterized the issue of entitlement to an initial rating in excess of 10 percent for vitiligo and seborrheic dermatitis. These are two separate skin disorders and have separate and distinct rating criteria. Therefore the Board has separated the issues as shown on the title page. The appeal as to what initial rating is warranted for seborrheic dermatitis is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. DDD, lumbar spine, was not productive of severe limitation of motion of the lumbar spine; or severe recurring attacks of intervertebral disk syndrome with intermittent relief; nor was forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. Neither was it productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. DDD, cervical spine, was not productive of moderate limitation of motion of the cervical spine; or moderate recurring attacks of intervertebral disk syndrome with intermittent relief; nor was the cervical spine productive of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Neither was it productive of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 3. Chronic fatigue syndrome was manifested by fatigue symptoms which wax and wane but are not productive of any periods of incapacitation in which bed rest has been ordered by a physician. 4. Fibromyalgia was manifested by 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, which required medication for control. 5. The 10 percent rating assigned for vitiligo is the maximum evaluation authorized under VA's rating criteria. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for DDD, lumbar spine were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2009); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2009). 2. The criteria for an initial evaluation in excess of 10 percent for DDD, cervical spine were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5290, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2009). 3. The criteria for an initial evaluation in excess of 10 percent for chronic fatigue syndrome were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 6354 (2009). 4. The criteria for an initial evaluation in excess of 10 percent for fibromyalgia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.88b, Code 5025 (2009). 5. The maximum allowable rating has been assigned for vitiligo, and it is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.118, Code 7823 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Board begins by noting that as initial ratings and an effective date have been assigned and the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service, and VA medical records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Criteria- General Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule in Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case here. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. When evaluating a loss of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2008) an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). A. Increased initial ratings for DDD, lumbar spine and cervical spine. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Additionally, 38 C.F.R. § 4.45 provides as regards to the joints that the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (range of motion flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. The Veteran seeks higher initial ratings for DDD of the lumbar and cervical spines. While this appeal was pending the applicable rating criteria for spinal disabilities under 38 C.F.R. § 4.71a, were revised effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The timing of this change requires the Board to first consider the claims under the old regulations for any period prior to the effective date of the amended diagnostic codes. Thereafter, the Board must analyze the evidence dated after the effective date of the new regulations and consider whether an increased rating is warranted under the new criteria. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Old Regulations. Under the regulations in effect prior to September 26, 2003, limitation of cervical motion was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5290. That Code provided a 10 percent rating for a slight limitation of cervical motion, while a moderate limitation of cervical motion warranted a 20 percent rating. Severe limitation of cervical motion warranted a 30 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5292, a slight limitation of lumbar motion warranted a 10 percent disability rating, while a moderate limitation of lumbar motion warranted a 20 percent rating. Severe limitation of lumbar motion warranted a 40 percent rating. The criteria for an intervertebral disc syndrome were also revised during the appellate term. Under the old criteria, Diagnostic Code 5293 provided a 10 percent rating for a mild intervertebral disc syndrome; moderate intervertebral disc syndrome manifested by recurring attacks warranted a 20 percent rating; and, a 40 percent rating was assigned for a severe intervertebral disc syndrome manifested by recurring attacks, with intermittent relief. New Regulations. Under the amendment to the Rating Schedule that became effective September 26, 2003, DDD of the lumbar and cervical spines are now rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, intervertebral disc syndrome. Intervertebral disc syndrome is rated either on the basis of the total duration of incapacitating episodes or on the basis of the general rating formula set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The method selected will be the one which results in the higher evaluation after all disabilities are combined under 38 C.F.R. § 4.25. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the prior 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the prior 12 months; and a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least one week, but less than two weeks, during the prior 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For the purpose of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). In the alternative, the Veteran's intervertebral disc syndrome may be rated under the general rating for diseases and injuries of the spine. Under that formula, the ratings are assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under this formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 2, General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a, Plate V (2008). Background In a February 2004 VA examination, a neurologist noted the Veteran reported doing some heavy lifting of fuel tanks in 1992 and injured his back. He had pain radiating down the right leg and causing some numbness in the right lateral foot. He was told that he had sciatica and surgery was considered. He also had some cervical spine pain and pain and numbness down his right arm. He denied any specific focal weakness. An orthopedist noted initial complaints of neck pain diagnosed in March 1986 as myositis and treated conservatively. The symptoms became more frequent, and severe in the mid 1990s. A chiropractor diagnosed, cervical and sacroiliac segmental dysfunction. An MRI in August 1996 revealed multilevel degenerative disk changes with disk bulge but no neural foraminal narrowing or frank disk herniation. He was evaluated by a neurosurgeon in October 1999 and diagnosed with fibromyalgia syndrome. The Veteran now reported constant midline cervical thoracic junction pain graded 3/10 which he noted increased with repetition and prolonged positioning but was not necessarily affected by any other particular position. The pain radiated to the dorsum of both shoulders. He had difficulty finding sleeping positions. He has had no injections, surgery, bracing or hospitalization to date and has lost no time from work in the last year due to neck pain. Examination of the neck revealed the spine to be midline. Cervical, thoracolumbar, and lumbar curves are preserved. There was tenderness to palpations at the cervicothoracic junction in the middle but nontender to paraspinous musculature and there was no paraspinous muscle spasm to palpation. Cranial nerves, motor strength, and sensory tests were normal. Cervical range of motion was forward flexion to 45 degrees; extension to 25 degrees; lateral bending left 40 degrees and right 35 degrees; rotation left 60 degrees and right 65 degrees. There was cervical thoracic region discomfort at all extremes of motion. Compression and distraction tests were negative. Upper extremity range of motion and strength were both essentially normal. There was a subjective decrease in sensation to light touch in the upper right extremity in the C6 distribution. The impression was numbness in the right arm and leg most likely secondary to right cervical radiculopathy in the C6 distribution. There was also a right lumbar radiculopathy with an absent right ankle jerk suggestive of S1 radiculopathy. A lumbar examination revealed tenderness to palpations at lower lumbar to lumbosacral joint junction and to the right sciatica notch with no paravertebral muscle spasms. Lumbar range of motion was forward flexion to 110 degrees; extension to 25 degrees; lateral bending left 20 degrees and right 15 degrees; rotation left 35 degrees and right 30 degrees. The Veteran noted right lumbar to S1 region discomfort at all extremes of motion. X-rays of the cervical spine revealed minimal uncovertebral facet changes at C-5 with slight disk space narrowing. Lumbar x-rays revealed slight L1-L2 and L5-S1 narrowing. The diagnoses were DDD cervical spine without objective evidence of upper extremity radiculopathy; and, DDD lumbar spine with MRI confirmed disc bulge but without herniated nucleus pulposus with right lower extremity radiculopathy without spasms. He further noted that there was no objective evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance except as noted by examination. In an October 2006 VA examination, the examiner noted no surgical history for the cervical or lumbar spines. The Veteran did not use a cane, crutch, walker, or wheelchair. He reported daily pain in the posterior neck to include the trapezius, interscapular T4 and posterior cervical occipital region with tingling in the fingers without numbness. His range of motion was not limited but he reported posterior neck pain when standing and looking up. He reported flare- ups of the posterior cervical region daily from 1 to 11/2 hours daily. His gait was normal but he reported low back pain after walking 4 to 5 blocks. He denied incapacitating episodes, erectile dysfunction, impotence, bowel or bladder incontinence, cough, sneeze, bowel movement dysfunction, or hospitalization for his spine. His low back pain waxed and waned, but he had daily symptoms over the right lumbosacral region over the upper gluteal region. Examination revealed a normal gait without ambulatory aides. There was edema or swelling of the cervical spine, and no palpable hardening in the neck trapezius areas, or tender points identified. Cervical, thoracolumbar, and lumbar spine posture was normal. Palpations at the posterior cervical region were silent for spasms, or atrophy. The AC joint, subdeltoid, inferior scapula, and posterior vertebral bodies were nontender. Cervical range of motion was forward flexion to 60 degrees; extension to 45 degrees; lateral bending to 30 degrees; rotation left to 60 degrees and right to 50 degrees. The examiner noted that with repeat motion of the cervical spine there was some posturing, moans, groans, facial grimacing, bracing and guarding, and sighing signs of illness behavior in the neck and lumbar spine. Upper extremity radial pulses were symmetrical and sensory test was intact. Lumbar examination was negative for spasms or increased muscular tension. The Veteran pointed to the L4-L5 region posterior vertebral bodies as his source of discomfort on direct digital pressure. Lumbar range of motion was forward flexion to 90 degrees; extension to 30 degrees; lateral bending left to 25 degrees and right to 30 degrees; rotation left to 40 degrees and right to 35 degrees. The diagnoses were no identifiable abnormal musculoskeletal pathology of the cervical spine; no upper extremity radiculopathy; and, DDD lumbar spines L4-S1 without lower extremity radiculopathy. In a June 2008 VA examination, the examiner reviewed the claims files and medical records. The Veteran reported that his neck and back pain worsened since his last examination. He had been treated at VAMC with injection for his neck but noted he will not go back for treatment as this was too painful. The record reveals injections in C6-C7, C5-C6, and to C5, C6 and C7. He has had no surgery on the cervical or thoracic spines. He has had no epidural steroid injections to the thoracic or lumbar spines. He did not use a neck brace except when at work. He uses a cane twice a week when his back flares up. He denied radiculopathy of the upper and lower extremities, weight loss, fever, malaise, dizziness, visual disturbance, numbness, weakness, bladder complaints, bowel complaints, or erectile dysfunction due to a spinal condition. He walked unaided most of the time. He was able to perform his activities of daily living such as walking, eating, grooming, bathing, toiletries, and dressing without difficulty. He reported losing at least one day a week since June 2007 for neck and back pain. Examination of the cervical spine revealed that range of motion was forward flexion to 55 degrees; extension to 38 degrees; lateral bending left to 18 degrees and right to 25 degrees; rotation left to 30 degrees and right to 35 degrees. The Veteran complained of pain on motion with lateral flexion and rotation to the left only. Thoracolumbar range of motion was lateral flexion to 30 degrees; extension to 20 degrees; rotation to 35 degrees; and forward flexion to 70 degrees. The Veteran complained of pain on motion with extension only. He grunted and groaned throughout the entire examination. Neurosensory function was intact distally to all digits of the upper and lower extremities. Straight leg raises were negative, both sitting and supine. The examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance except as noted by examination. Subjective pain appeared to be the greatest functional impact in all cases. The Veteran has had no physician directed bed rest in the past 12 months due to a spine condition with an incapacitating episode. The diagnoses were DDD Lumbar spine; and, no identifiable abnormal musculoskeletal pathology of the cervical spine. The examiner further commented that the Veteran must have been classified by a chiropractor as non-allopathic lesions (not otherwise or elsewhere classified) of the cervical, thoracic, or lumbar spines. X-rays were noted to be negative for DDD of the cervical spine. The Veteran was noted to receive all of his medical treatment through the VAMC. Analysis In light of the foregoing, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his cervical spine disorder. VA examiners consistently found no identifiable abnormal musculoskeletal pathology of the cervical spine, and no upper or lower radiculopathy was shown. Subjective pain was noted to appear to be the greatest functional impact in all cases. The examiner in October 2006 further commented that there was no x-rays evidence of DDD of the cervical spine. The Veteran's range of motion clearly remained within the criteria for a 10 percent evaluation during the entire appeal period. In addition the evidence does not show that the Veteran has had any incapacitating episodes having a total duration of at least two weeks during the last 12 months. In fact the evidence does not suggest a single physician ordered bed rest. Therefore, he is appropriately rated at a 10 percent evaluation for his cervical spine disorder for the entire rating period. Regarding the lumbar spine disorder, the Board finds that the Veteran is not entitled to an initial rating in excess of 30 percent. As noted, he has not been shown to have had any incapacitating episodes having a total duration of at least four weeks during the last 12 months as a result of his DDD lumbar spine. In addition, his lumbar range of motion clearly remained within the criteria for a 30 percent evaluation during examinations. He has not exhibited favorable ankylosis of the entire thoracolumbar spine and forward flexion of the thoracolumbar spine has always exceeded 30 degrees. Therefore, he is appropriately rated at a 30 percent for his lumbar spine disorder for the entire rating period. While the Veteran does demonstrate some limitation of cervical and lumbar motion, the Board finds that he is not entitled to a rating in excess of 10 percent for his cervical spin or 30 percent for his lumbar spine disability. Further, the Veteran does not qualify for a higher rating under the formula for rating an intervertebral disc syndrome based on incapacitating episodes. As noted above, the pertinent regulation provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The record does not show that bed rest has ever been prescribed by a physician for the Veteran's cervical or lumbar spinal disabilities. Therefore, the Veteran does not qualify for higher ratings for his DDD, cervical spine or lumbar spine. Diagnostic Code 5243. The Board has considered a higher rating based on DeLuca. The general rating formula for spinal disabilities assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The rating criteria are controlling regardless whether these symptoms are present. In sum, the manifestations of the Veteran's cervical and lumbar disabilities do not meet or more nearly approximate the criteria for increased initial rating under any of the applicable diagnostic codes. Accordingly, the Veteran is appropriately rated at a 10 percent evaluation for his cervical spine DDD and at a 30 percent evaluation for his lumbar spine DDD since June 1, 2003. B. Increased initial ratings for chronic fatigue syndrome (CFS) and fibromyalgia. The Veteran is currently evaluated as 10 percent disabled for fibromyalgia and chronic fatigue syndrome under diagnostic codes 5025 and 6354 respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with 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, is to be rated 10 percent disabling if the symptoms requires continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to Diagnostic Code 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, DC 5025. Under 38 C.F.R. § 4.88b, Diagnostic Code 6354, Chronic Fatigue Syndrome is rated based on debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 20 percent rating is warranted for symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 10 percent rating is warranted for symptoms which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or when symptoms are controlled by continuous medication. 38 C.F.R. § 4.88b, DC 6354. After a careful review of the evidence, the Board finds that there is a preponderance of evidence against a finding that an initial rating greater than 10 percent is warranted for fibromyalgia or for CFS. At a VA examination in February 2004, the Veteran reported pain radiating down the right leg and causing some numbness in the right lateral foot; and, cervical spine pain and pain and numbness down his right arm. He denied any specific focal weakness. Examination revealed tenderness to palpations at the cervicothoracic junction in the middle but nontender to paraspinous musculature and there was no paraspinous muscle spasm to palpation. There was a slight tenderness in the right paracervical area. Cranial nerves, motor strength, and sensory tests were normal. Upper extremity range of motion and strength were both essentially normal. There was a subjective decrease in sensation to light touch in the upper right extremity in the C6 distribution. A lumbar examination revealed tenderness to palpations at lower lumbar to lumbosacral joint junction and to the right sciatica notch. There were no paravertebral muscle spasms. The diagnosis was numbness in the right arm and leg most likely secondary to right cervical radiculopathy in the C6 distribution; and, right lumbar radiculopathy with an absent right ankle jerk suggestive of S1 radiculopathy. A Gulf War protocol examiner noted the Veteran reported exposure to oil well fires and chemicals which coated aircraft he maintained. He addressed symptoms of chronic fatigue syndrome beginning in 1995-1996 in service. He reported being tired all the time and not able to do his job. He slept 4 hours a night and sleeping medication did not help. The examiner noted that a diagnosis of chronic fatigue syndrome must meet several criteria. It must be new onset of debilitating fatigue that is severe enough to reduce or impair average daily activities below 50 percent of the Veteran's pre-illness activity level for a period of 6 months. Other clinical conditions that may produce symptoms must be excluded by thorough evaluation, based on history, physical examination, and appropriate laboratory tests. Chronic fatigue syndrome also must meet 6 or more of the following 10 criteria: 1. It must be of acute onset. The examiner noted that the Veteran had a gradual onset which reportedly had worsened. 2. It must have a low grade fever. While the Veteran reported a fever in 1991 at the onset, he had none now. 3. The Veteran must have nonexudant pharyngitis. The examiner noted the Veteran did not have this. 4. The Veteran must have palpable or tender cervical or axillary nodules. The examiner noted the Veteran did not have this. 5. The Veteran must have generalized muscle aches and pains, which he reported. 6. The Veteran must have fatigue lasting 24 hours or longer after exercise. The Veteran reported that on one occasion after cleaning his yard he stayed in bed from 10:00 pm until 5:30 am the next day. 7. The Veteran must have headaches, which he reported having. 8. The Veteran must have migratory joint pains, which he claimed he had. 9. The Veteran must have neuropsychological symptoms, which he did not. 10. The Veteran must have sleep disturbance which he did. The examiner noted that the Veteran was diagnosed with chronic fatigue syndrome since 1999 or 2000 and partook of an Air Force study on chronic fatigue syndrome. He reported taking medication through the Air Force study. The examiner noted however that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome, having only meeting 5 of the 10 criteria. The Veteran estimated that only 30 to 35 % of the routine daily activities were affected by chronic fatigue syndrome. While he reported not to be able to do much, this was noted by the examiner to be due to his back trauma. The Veteran was currently employed 30 hours a week; and, he had physical therapy twice a week. He reportedly had to call in sick 5 times in the last 6 months. The examiner noted however that overall his symptoms were compatible with chronic fatigue syndrome. The Veteran reported being diagnosed with fibromyalgia in 1999 to 2000 after seeing a rheumatologist. Symptoms were precipitated after an active day and were alleviated with medication such as Motrin. He reported weakness in his right arm and thumb and right sciatic nerve all the way down to his heel. He has unexplained fatigue and sleep disturbances. He has no GI symptoms. His treatment has been with Motrin and other pain medication. He reported no problems with depression. The examiner noted positive trigger points behind his shoulders and both hips. The musculoskeletal areas involved included the shoulder girdle, hips, both arms and legs. Muscle strength appears somewhat diminished but still within the normal range. The diagnosis was fibromyalgia. In an October 2006 VA examination, the examiner noted that to be diagnosed with chronic fatigue syndrome the condition must be new onset of debilitating fatigue that is severe enough to reduce or impair average daily activities below 50% of the Veteran's pre-illness activity level for a period of 6 months. The Veteran must also meet 6 or more of the 10 criteria. The examiner noted that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. It was noted that his chronic fatigue was not of acute onset but was gradual. He did not have a low grade fever, nonexudant pharyngitis, palpable or tender cervical or axillary nodules, migratory joint pain, or neuropsychiatric symptoms. He had generalized muscle aches, and fatigue lasting 24 hours or longer, headaches once a week and reported sleep disturbance. In describing his symptoms he said that he was tired every day; his body felt tired and this started prior to his retirement from the military in 2003. He currently was working as an aircraft inspector 4 days a week, nine hours a day, and had been doing so for 18 months. On days when he felt sick he took four hours off per week because he feels not well enough to continue. The Veteran was not able to estimate the percentage of routine daily activities interfered with by his tiredness. There were no incapacitating episodes. The Veteran had been taking medication for chronic fatigue syndrome but since he was not sure that it was helping he stopped taking it on his own. The examiner noted that the Veteran was well nourished and in no acute distress. His upper and lower extremities were intact and he had full range of motion and good strength. He was neurologically oriented. The examiner noted that the Veteran had a positive lab analysis for Epstein-Barr Virus (EBV). He noted that while the Veteran did not meet the criteria for CFS, the EBV disease could cause symptoms of fatigue. Regarding fibromyalgia, the Veteran reported pain in the muscles of the arms, shoulders, neck, and knees. He also reported gout of the ankles. He took Motrin daily and did stretching exercises to relieve the muscle pain which was mainly in the early morning. He did warm up exercises in the morning and was usually good for two hours. He then rested and went back about his business. He tried a chiropractor for over a year which helped but did not cure the problem. He was not able to pinpoint the onset. He has had no treatment for his fibromyalgia other than taking Motrin. The examiner noted that the Veteran was not in pain during the examination nor did pressure to the areas of normal trigger point activity elicit any significant pain. Muscle strength in the upper and lower extremities was normal. The examiner noted that fibromyalgia appeared stable and he was unsure in what way it was getting worse per the Veteran's report. In a June 2008 VA examination, the Veteran complained of constant pain in his back, neck, all of his joints, specifically more so in his elbows, knees, and ankles which had no precipitating factors and was refractive to therapy. Medication and physical therapy did not help. There was no stiffness or muscle weakness but generalized muscular pain. He reported being constantly fatigued, depressed and anxious. He denied any time lost from work because of fatigue and pain, and had never been hospitalized. On examination all of the tender points defined in fibromyalgia were positive including the scalp, lateral cervical region, tops of both trapezius, intrascapular, infrascapular, sacroiliac, bilateral hips, lateral aspects of the lower thighs and ankles, and medial aspects of both ankles. Muscle strength was preserved. The examiner's diagnostic impression was fibromyalgia; and, no chronic fatigue syndrome. Analysis Although the Veteran suffers from widespread musculoskeletal pain, there is no actual evidence that the symptoms are exacerbated and precipitated by environmental or emotional stress or by overexertion, or that the symptoms are present more than a third of the time. The evidence does not show that the Veteran is under any particular treatment regimen for fibromyalgia or that he requires constant medication. He takes Motrin which is apparently self prescribed. In the absence of symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, or that are present more than a third of the time, there is a preponderance of evidence against the claim for a higher rating for fibromyalgia at any time during the appeal period, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Although the Veteran suffers from constant fatigue, sleep disturbance, generalized muscle aches, and headaches; he has submitted no evidence of any incapacitating periods requiring bed rest and treatment prescribed by a physician. In fact, in his June 2008 VA examination he denied any lost time from work because of fatigue and pain, and had never been hospitalized. While reporting sleep disturbance as part of his CFS symptoms, he also reported in his orthopedic examinations that he had sleep disturbance due to having trouble finding a comfortable position due to his DDD of the cervical and lumbar spines. While reporting that he was tired every day; he also noted that he currently was working as an aircraft inspector 4 days a week, nine hours a day, and had been doing so for 18 months. In any event, in the absence of symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year, there is a preponderance of the evidence against the claim for a higher rating for chronic fatigue syndrome at any time during the appeal period, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). C. Increased initial rating for vitiligo Regulations for the evaluation of skin disabilities were revised during the pendency of this appeal, effective on October 23, 2008. However, the Board notes that the revisions are not applicable in this case and apply only to new applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran's vitiligo and seborrheic dermatitis may be rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 or 7823. Under 38 C.F.R. § 4.118, Diagnostic Code 7806 which provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling. Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Diagnostic Code 7806 (2009). Under 38 C.F.R. § 4.118, Diagnostic Code 7823 vitiligo with no exposed areas affected warrants a noncompensable rating; with exposed areas affected it warrants a 10 percent rating. This is the maximum rating allowed under this code. At the February 2004 VA examination the Veteran reported vitiligo on his hands and wrists in two spots before the Persian Gulf War. He then had spots on his forehead and chin after returning from the Persian Gulf. He was treated with UVB and PUV while on active duty. He had occasional burning sensation of the skin during the treatment. In the past 12 months he has not received any treatment. He has no malignant neoplasms or benign neoplasms. The examiner noted a rash on the neck and low back, upper arms, waist, buttocks and lower legs. They cover approximately 10 per cent of the hands and 15 percent of the face. The examiner noted no scarring or disfigurement. There was no acne or chloracne. There was no scarring or alopecia of the scalp. He had abnormal appearing scalp and back of the neck. The Veteran did not have hyperhydrosis. The diagnosis was vitiligo by history; seborrheic dermatitis by evaluation. At an October 2006 VA examination the Veteran reported vitiligo was identified by a VAMC physician and he was treated with PUVA which he was not sure if it helped. He works outdoors. He reported that his dermatological condition worsened since his last examination. He has a skin growth on his left wrist which is being observed for changes and one which was removed from his right ear. The two lesions on his ear which were removed and the one on his left wrist occupy less than 0.05 percent of his total body surface. The examiner noted no current systemic symptoms, and no benign or malignant neoplasms present. The diagnosis was vitiligo and warts on ears and left wrist. Full length photos of the Veteran's skin condition were included, which reflect involved over the entire body. At a June 2008 VA examination the Veteran reported vitiligo began in 1983 with white spots on his hands and since has spread throughout his body. He had photos taken during his examination two years ago and noted it has spread since that time. The examiner noted that the course had been constant and had been progressively spreading with the enlargement of the depigmented skin lesions. He has been treated with PUVA to no avail. It caused him to be incapacitated for 2 to 3 days and to be severely nauseas. He denied any treatment within the last year. The examiner noted the skin lesions were asymptomatic. There were no malignant neoplasms of the skin. There was no evidence of active urticaria, primary cutaneous vasculitis, or erythema multiform. The examiner noted no scarring or disfigurement. There was no acne or chloracne. There was no scarring or alopecia of the scalp. The diagnosis was vitiligo encompassing 75 percent of the total body surface: the scalp, face, neck, trunk, upper and lower extremities, and he states it has spread to his chest, arms and thighs over the past 2 years. The examiner was unable to measure the specific lesions as they varied in size and covered 75 percent of his total body surface. As noted the available diagnostic codes for rating the Veteran's skin condition are Codes 7806 and 7823. Under Code 7823 the Veteran is rated at the maximum allowable evaluation of 10 percent. The file contains treatment records which do not show that the Veteran is regularly monitored for seborrheic dermatitis. The evidence of record fails to reveal any evidence that pathology caused by his service-connected skin lesions includes exfoliation, exudation or constant itching. There are no extensive lesions other than his vitiligo, and no marked disfigurement was noted. The evidence fails to reveal that the seborrheic dermatitis has ever involved 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. The records reveal no use of systemic therapy has ever been required for other than his vitiligo. Finally, the evidence of record does not show any functional impairment due to the skin disorder. Therefore, a rating in excess of the current 10 percent rating for vitiligo and seborrheic dermatitis is not available under Code 7803. Therefore, a rating in excess of the current 10 percent rating for vitiligo for any time period from June 1, 2003 is not warranted. Extraschedular consideration The Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected disabilities. Although the Veteran reports that he takes medication to alleviate his pain, the evidence does not show such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards in rating any of those disabilities. 38 C.F.R. § 3.321(b)(1) (2008). The Veteran reports that he is employed and has lost some time from work due to impairment caused by his disabilities. On several occasions, he denied any significant time los from work and has indicated that he worked 9 hours a day, 4 days a week. Accordingly, the record shows that the degree of impairment associated with the Veteran's disabilities are consistent with those contemplated by the regular schedular standards. It must be emphasized that the disability ratings are not job specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations of illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Absent competent evidence to the contrary, the Board finds no reason for further action under 38 C.F.R. § 3.321(b)(1). ORDER An increased initial rating in excess of 30 percent for degenerative disc disease (DDD), lumbar spine, (also claimed as sciatica and herniated nucleus pulposus L5/S1) is denied. An increased initial rating in excess of 10 percent for degenerative disc disease (DDD), cervical spine is denied. An increased initial rating in excess of 10 percent for chronic fatigue syndrome (CFS) is denied. An increased initial rating in excess of 10 percent for fibromyalgia is denied. An increased initial rating in excess of 10 percent for vitiligo is denied. REMAND The Board finds a VA examinations is necessary to determine the degree of disability of the Veteran's service-connected seborrheic dermatitis. Service connection was granted in June 2004 for vitiligo and seborrheic dermatitis and a single evaluation of 10 percent was awarded from June 1, 2003, under Diagnostic Code 7823. This code specifically is for rating vitiligo and 10 percent is the maximum allowable rating allowed. Seborrheic dermatitis is a separate and distinct skin condition which should be rated under diagnostic Code 7806, as dermatitis or eczema. Thus, the case must be remanded to the RO or the Appeals Management Center (AMC) to schedule a dermatology examination to establish an initial disability rating under diagnostic Code 7806 for seborrheic dermatitis. In addition, the Veteran's most recent VA dermatology treatment records should be obtained since they might contain information concerning his current level of disability. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED to the RO or the AMC in Washington, D.C. for the following actions: 1. The AMC/RO should obtain any available updated VA treatment records for the veteran's seborrheic dermatitis. 2. Thereafter, the Veteran should be afforded a VA examination to determine the current nature and extent of his service-connected seborrheic dermatitis. The claims folders must be made available to and be reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should establish an initial rating for seborrheic dermatitis, considering all applicable scheduler criteria. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs