Citation Nr: 0700360 Decision Date: 01/05/07 Archive Date: 01/17/07 DOCKET NO. 97-07 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi ISSUE Entitlement to a rating in excess of 10 percent for arthralgia of multiple joints. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from August 1965 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 1998 the veteran testified at an RO hearing held in Jackson, Mississippi. The transcript of that hearing is of record. Prior Board history regarding this matter includes remands issued in December 1999, September 2003, January 2005, and September 2005. FINDING OF FACT The veteran suffers from nearly constant widespread joint pain that is refractory to therapy and that is productive of definite impairment, but without evidence of weight loss or anemia. CONCLUSION OF LAW The criteria for a 40 percent rating for polyarthralgia have been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5002 and 5025 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 CFR § 4.20. 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. 38 CFR § 4.40. As regards the joints, consideration will be given to factors such as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45. The regulations were amended during the pendency of the veteran's appeal. See 68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003). However, under the old or the amended regulations, degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note, however, that the 20 percent and 10 percent ratings based on x-ray findings, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (as in effect before and after September 2003). When the law controlling an issue changes after a claim has been filed but before the judicial process has been concluded, the law most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991); 38 U.S.C.A. § 5110(g). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts. VA and private medical records reflect problems with multiple joint arthralgia of unknown etiology for many years. X-rays taken pursuant to a C&P examination in April 1995 revealed minimal osteoarthritic changes of the cervical spine, no bony abnormalities of the left elbow, and no abnormalities of either knee. C&P examination report dated in January 1996 noted prior diagnoses of "polymyalgia rheumatic" with "migrating pains in the shoulders, knees, hips, and back since 1974." A letter from a private treating physician dated in January 1996 advises that the veteran has been treated with nonsteroidials, anti- inflammatories, and muscle relaxants without significant relief. In a letter dated in September 1997 this same physician advised that x-rays showed "no obvious anatomical deformities or pathology" that would explain the veteran's severe muscular weakness and progressive myalgias as well as polyarthralgias. He adds that MRI [magnetic resonance imaging] findings indicate that the veteran's polyarthritic symptoms have "progressively worsened. C&P examination report dated in April 2000 advises that the veteran had been treated with nonsteroidal anti-inflammatory medications on a regular basis with improvement, but notes that the condition did not completely go away. According to the examiner, physical examination revealed no external findings that would account for the veteran's constant aches and pains. C&P examination report dated in February 2005 noted that prior x-rays of the shoulders, elbows, wrists, and knees were normal. In May 2006 the veteran underwent another C&P examination. During the examination the veteran reported that he has constant pain on the sides of both knees, and said that his knees lock up. He described the pain as a burning sensation, but denied any swelling, heat, or redness. He said that he gets flareups once or twice a day, which he described as increased burning pain into the back of his legs. Examination found no swelling or tenderness of either knee; however, bilateral knee flexion did result in pain and muscle tightness. Even so, the examiner states that the ensuing pain is "mainly in the back, not with knee problem." The examiner added that there is no instability of the knee, and no additional limitation of motion with repetitive use. X- rays of both knees were normal. In addition to the above findings, the examiner reports that "with both shoulders there is pain on motion;" however, x- rays showed no impairment of the humerus. The examiner also noted that the veteran has wrist pain, but stated that these symptoms are mainly due to his carpal tunnel release. According to the examiner, it is speculative to separate any symptomatology from his arthralgias and residuals of carpal tunnel syndrome. The examiner adds that the veteran used to take nonsteroidal anti-inflammatories, but these caused stomach problems, so he now takes Tylenol extra strength "two to three times per day." Analysis The evidence confirms that the veteran has limitation of motion caused by diffuse joint pain involving the lower back, hips, neck, shoulders, knees, and elbows; however, the rating schedule does not include evaluative criteria for diffuse joint pain. His polyarthralgia has therefore been rated as analogous to degenerative arthritis. See 38 CFR § 4.71a, Diagnostic Code 5003. The highest rating of 20 percent under Diagnostic Code 5003 is not warranted unless there is x-ray evidence that shows involvement of two or more major joints or two or more minor joint groups. Although the veteran's shoulders, hips, knees, and elbows are major joints, his polyarthralgia is not demonstrated by x-ray evidence, thus precluding an increased evaluation under Diagnostic Code 5003. While this appeal was pending, the rating schedule (38 C.F.R. § 4.71a) was amended, effective May 7, 1996, to add diagnostic code (5025), for fibromyalgia, also called fibrositis or primary fibromyalgia syndrome. See 61 Fed. Reg. 20438 (1996); 38 C.F.R. § 4.71a, Diagnostic Code 5025. Fibromyalgia refers to widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel syndrome, depression, anxiety, or Raynaud's like symptoms. 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. Under Diagnostic Code 5025, a rating of 10 percent is warranted 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 refractory to therapy. 38 C.F.R. § 4.71a, Diagnostic Code 5025. The evidence confirms that the veteran's suffers from widespread musculoskeletal pain." Moreover, medical and lay evidence indicates that these symptoms are nearly constant. Medical evidence also confirms that despite numerous treatment regimes, this disorder is progressively worsening, which would indicate that the veteran's polyarthralgia disorder is resistive to therapy. Accordingly, and resolving all reasonable doubt in favor of the veteran, the Board finds the veteran's symptoms to be analogous to the criteria for a rating of 40 percent under Diagnostic Code 5025. 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5025; see also Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the Board notes that the veteran's claim was pending prior to the adoption of Diagnostic Code 5025. This said, the Board is cognizant that prior to the adoption of Diagnostic Code 5025, arthralgia was often rated as analogous to active rheumatoid (atrophic) arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Under the provisions of Diagnostic Code 5002, a 20 percent evaluation is warranted for rheumatoid arthritis when the diagnosis is well established and there are one or two exacerbations a year. A 40 percent evaluation requires the presence of symptom combinations productive of a definite impairment of health, objectively supported by examination findings, or of incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation is warranted for rheumatoid arthritis when it results in weight loss and anemia productive of a severe impairment of health or in severely incapacitating exacerbations occurring four or more times a year or a lesser number of exacerbations if they occur over prolonged periods. A 100 percent evaluation requires constitutional manifestations associated with active joint involvement which are totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Medical examinations confirm that the veteran has suffered from nearly constant widespread joint pain of unknown etiology productive of definite impairment during the entire period under review in this appeal; however, the record contains no evidence of weight loss or anemia, or of total incapacitation. Accordingly, ratings of 100 percent or 60 percent under Diagnostic Code 5002 are not warranted at any time during the period under review in this appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5002. However, the Board does find the veteran's symptoms to be analogous to the criteria for a 40 percent rating under Diagnostic Code 5002. A rating of 40 percent under Diagnostic Code 5002 is therefore warranted until May 7, 1996 (which is the date that Diagnostic Code 5025 was added to the rating schedule), at which time a 40 percent rating under Diagnostic Code 5025 shall apply. The Board notes the April 2000 C&P examiner's comment that the veteran "is unlikely to have fibromyalgia, as he does not have characteristic clinical findings;" however, the Board emphasizes that the veteran's diffuse joint pain, referred to variously as "polymyalgia," polymyalgia rheumatic, and "polyarthralgia," is being evaluated by analogy under the provisions of Diagnostic Codes 5002 and 5025 in accordance with 38 CFR § 4.20. The evidence shows that VA has met the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters from the RO dated in March 2001, January 2004, February 2004, February 2005, and September 2006 satisfied the duty to notify provisions. VA and private medical records have been obtained and made a part of the file. In addition, the veteran has undergone numerous VA examinations, the reports of which are of record. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. ORDER A rating of 40 percent for polyarthralgia is granted, subject to the laws and regulations governing the award of monetary benefits ____________________________________________ GARY L. GICK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs