Citation Nr: 0814264 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 96-32 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected lumbosacral strain. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease (DDD). 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from May 1962 to July 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Offices (ROs) in Waco, Texas, and Columbia, South Carolina. A February 1996 rating decision denied the veteran entitlement to service connection for fibromyalgia and denied an increased evaluation for his service-connected back disability. A July 1998 rating decision denied the veteran entitlement to a TDIU. Review of the record reflects that the case has been remanded for evidentiary development on numerous occasions. Most recently, in April 2005, the issues of an increased rating for the veteran's service-connected low back disorder and entitlement to a TDIU were remanded for development, to include a contemporaneous neurological examination. Also in the April 2005 Board decision, service connection was denied for fibromyalgia on a direct and secondary basis. The veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2006 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion for Remand. The Board's decision was vacated and the veteran's claim was remanded to the Board. The Order called for the claim to be remanded so that an attempt could be made to obtain additional VA medical records from the early 1970s. This remand was accomplished in August 2006. In June 2007, the Board denied the claims as listed on the title page of this decision. In July 2007, the veteran's representative submitted a motion to vacate the June 2007 Board decision. He stated that in March 2007, the veteran requested copies of the evidence obtained pursuant to an August 2006 Board remand decision. However, he was not provided with copies of all relevant documents, to include a VA examination report of February 2007. A follow-up request was made to the RO by the veteran in May 2007, but he did not receive a response to this request prior to the June 2007 Board denial. At the time of its decision, the existence of these documents was not known to the Board. The representative argued that since this request was clearly made prior to the Board's adjudication (and since the March 2007 records request was clearly not complied with), the June 2007 decision should be vacated pursuant to 38 C.F.R. § 20.904 (2006), so that the veteran could be provided with the records requested and argue his case before the Board's decision. In addition, assuming that this motion would be granted, the representative requested that the Board stay the case for 90 days following the promulgation of the records at issue so that the veteran had time to file a brief before the Board issued another decision. In view of the arguments raised, the motion to vacate was granted in an August 2007 letter that was signed by the undersigned Member of the Board. The case was held in abeyance for 90 days at the Board pending additional argument by the veteran and/or his representative as reflected above. A further extension was also granted. All extensions having now expired, the matter is back before the Board. FINDINGS OF FACT 1. Service connection is in effect for lumbosacral strain with DDD, rated as 20 percent disabling. 2. The veteran's fibromyalgia is not of service origin and is not causally related to the veteran's service-connected lumbosacral strain with DDD. 3. The veteran's service-connected lumbosacral strain with DDD is manifested by pain, limitation of flexion motion to 45 degrees, but with no additional limitation following repetitive use. There is mid lumbar tenderness. Recent neurological examination reflects mild osteoarthritis with significant lumbar pain with no neurologic basis. The examiner opined that fibromyalgia was likely the best explanation for his complaints. Incapacitating episodes, ankylosis, or forward flexion of the thoracolumbar spine of 30 degrees or less as a result of the service-connected lumbar strain with DDD is not shown. 4. The veteran's only service-connected disorder is his low back disorder, rated as 20 percent disabling. 5. The veteran has two years of college education and last worked in late 1995 as a computer specialist. 6. The veteran's service-connected disability does not preclude him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The veteran's fibromyalgia was not incurred in or aggravated by service nor is it proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The schedular criteria for a rating in excess of 20 percent for the veteran's service-connected lumbosacral strain with DDD are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.71a, Diagnostic Code (DC) 5293, effective prior to September 23, 2002; DC 5292, 5293 (2002), effective prior to September 26, 2003; 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5237, 5243 (2007), effective September 26, 2003. 3. The criteria for assignment of a TDIU are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.340, 4.16(a),(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The United States Court of Appeals for Veteran Claims (Court) in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and that the VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should provide any evidence in his possession pertaining to the claim. The RO provided the veteran with VCA letters in June 2001, May 2003, February 2004, April 2004, and April 2005. These letters notified the veteran of the evidence needed to prevail on these claims. Specifically, the letter gave notice of what evidence the veteran needed to submit and what evidence VA would try to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As required by 38 U.S.C.A. § 5103(a), notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, the rating decision denying the claim was prior to the veteran receiving notice. However, the Court recently held that even when notice is not provided prior to the initial unfavorable decision by the AOJ on the appellant's claim, this deficiency is not prejudicial to the appellant when subsequent VA actions "essentially cured the error in the timing of notice." Mayfield v. Nicholson, 19 Vet. App. 103 (2005). While the required notice was not provided to the veteran prior to the first AOJ adjudication of these claims, the subsequent VA letters corrected any procedural errors, and the content of the notices complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Thus, any defect with respect to the timing of the notice requirement was non-prejudicial, and VA's duty to notify the veteran has been satisfied. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the veteran was provided with notice of this information in letters dated in March 2006 and September 2006. VA also must make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2006). In the present case, the evidence includes service medical records, post service private and VA treatment records, and statements by the veteran. Also considered were records used by the Social Security Administration (SSA) in awarding the veteran disability insurance benefits. It is noted that additional effort was made recently to obtain VA records from the 1970s, but without success. The Board finds that there are no additional medical records necessary to proceed to a decision in this case. Numerous VA examinations have been conducted that address the etiology of current low back complaints. Additionally, the Board obtained an opinion from a VA examiner regarding the etiology of the veteran's fibromyalgia. Under these circumstances, the duty to assist doctrine does not require that the veteran be afforded additional medical examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally appellant and his attorney were afforded additional time and opportunity to submit additional evidence and argument. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues of service connection and for an increased rating is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Factual Background Service treatment records show that the veteran was evaluated and treated in August and September 1962 for pain and discomfort "in side" diagnostically attributed to myositis. His complaints were treated conservatively with heat and light duty and he was prescribed medication to include Darvon. On December 17, 1963, he was seen at a treatment facility via ambulance with low back pain of approximately two weeks' duration. On physical examination he was able to stand, walk slowly, and touch knees with reversal of lumbar curve without extreme pain on all movements. Subsequent evaluation of the veteran on December 18, 1963, noted that his complaints were localized to pain in the right kidney area with difficulty in urination and the veteran was hospitalized for observation. At hospital discharge on December 20, 1963, suspect pyelonephritis was diagnosed. The veteran was hospitalized in April 1966 for complaints of back pain, which reportedly developed while he was working on a launch facility approximately two weeks prior to his admission when he was working with sheets of plywood during a windstorm. Physical examination of the veteran's back on admission was noted to be within normal limits. There was extreme tenderness to palpation in the left sacroiliac region. The veteran complained of pain radiating down the back of both legs and there was a questionable positive straight leg-raising test. Neurologic examination was negative. While hospitalized the veteran was provided bed rest, muscle relaxants and physical therapy. He improved and was discharged. Acute lumbosacral muscle strain was the diagnosis at discharge. On the veteran's July 1966 medical examination for service separation, clinical evaluation of the veteran found no pertinent abnormalities. It was noted as clinical history on this examination that the veteran had several episodes of localized acute back strain in service, which responded rapidly to medical treatment and was not medically significant. On the veteran's initial post service VA examination in November 1972, he complained of pain in the back, left shoulder, neck, left knee and right foot. He noted that in 1966 he pulled the lower part of his back while working and has had trouble with this off and on since that time. He added that he got along reasonably well unless he had to do some heavy lifting or ride for long hours. On physical examination the veteran was noted to bend forward readily touching his feet with his hands and to straighten up quite adequately. Side-to-side motion and back bending was normal. An X-ray of his lumbosacral spine was interpreted to reveal a normal curvature. The vertebral bodies were within normal limits and there was no significant amount of osteoarthritic changes. Lumbosacral strain was the pertinent diagnosis. Service connection for lumbosacral strain was established by an RO rating decision dated in December 1972. This disorder was rated as noncompensably disabling. Private treatment records dated between November 1984 and August 1988 show that the veteran's physician saw him in April 1987 with complaints of multiple joint pains. The diagnostic impression was questionable myositis. The veteran was referred for rheumatology consultation in May 1987. It was noted by his examining physician, that the veteran has had polyarthralgias for several months and that he had stated that his pains began in his left elbow and shoulder and had become quite severe. It was also noted that the veteran noticed some pain and swelling in his left knee and also experienced minimal low back pain. It was noted that his past medical history revealed an interesting 4 to 5-week episode of high fever in 1981 for which he was hospitalized and worked up although no diagnosis apparently was made. Physical examination was essentially normal and musculoskeletal pain was the diagnostic impression. It was stated that the veteran's complaints were somewhat suggestive of polyarthritis and that the veteran's symptoms have been short lived and he would not make a definitive diagnosis until more physical evidence was available. The physician stated that the veteran has complained of pain in his joints but there is really no swelling and that the veteran should be treated conservatively possibly with nonsteroidal anti- inflammatory medication until symptoms recur. When examined by VA in April 1993 the veteran reported that his low back pain had become worse but had not resulted in any lost time from his work. On physical examination the veteran was noted to have a fair range of motion in the low back without spasm. Normal low back examination was diagnosed. VA reexamined the veteran in June 1993. On this examination the veteran said that since service he had done well with respect to his low back pain until the 1970's when he again developed episodes of intermittent low back pain. He reported that he had no further back injury and has had no back surgery. He said that initially he would go a year or more between attacks of back complaints but that in recent years the intervals between acute back pains had been getting much shorter. On physical examination lateral bending of the lumbosacral spine was about 25 percent of normal in both directions. The veteran did not appear to have any back spasm or abnormal muscle tightness. On forward bending, he could bend forward to reach within one foot of the floor with his outstretched hands; but the examiner noted that he bent mostly through his hip joints and his upper lumbar segments. The lower portion of his lumbar spine stayed relatively straight and on full forward bending there was not a real reversal of the lower lumbar curve. Straight leg raising was to 90 degrees and resulted in low back discomfort or evidence of sciatic pains. Deep tendon reflexes in the lower extremities were equal and active both at the knees and ankle. History of musculoligamentous sprain, lumbosacral spine was the diagnosis. The examiner noted that by history the veteran had a moderate impairment of back function. The disability evaluation for the veteran's lumbosacral strain was increased by an RO rating decision dated in July 1993 from noncompensable to 20 percent. In November 1994 the veteran was evaluated by a private physician for pain across his chest, sides and back. The veteran described the pain as sharp, intense pain that lasts a few minutes then resolves. Following a physical examination probable costochondritis was diagnosed. When seen in late November 1994 it was noted that the veteran had been having difficulty with chest pain and generalized musculoskeletal pain. He gave a history of having difficulty with musculoskeletal pain dating back for probably 8 to 10 years. It was also reported that the pain was intermittent at that time and he was easily able to work with this. It was noted that over the last two years he has had increasing difficulty with musculoskeletal pain as well as difficulty with pain over the chest wall. Following a physical examination the diagnostic assessment, based on physical examination and laboratory data, was that the veteran probably had myofascial syndrome. A private physician examined the veteran in December 1994. It was noted that the veteran had had joint pain for a number of years but that it had become increasingly severe for the last several months affecting the shoulders, knees, hands, neck and jaw, thoracic spine, hips and feet. On physical examination the veteran was characterized as well developed, and well nourished in no acute distress and appearing his stated age. On joint examination there was no active synovial proliferation. There was tenderness in a typical fibrostic distribution somewhat asymmetric however. Neurological examination showed no lateralizing sides. Polyarthralgia/polyarthritis of several years' duration, worse for the past several months was the pertinent diagnosis. The physician indicated that the veteran best fitted a category of fibromyalgia-like illness (has more generalized symptoms than myofascial pain syndrome). In a statement received in February 1995 the veteran requested an increased evaluation for his service-connected low back disability and further noted that he had been diagnosed by a private physician in November 1994 as suffering from fibromyalgia. In July 1995 the veteran submitted a reproduced copy of a booklet produced by the Arthritis Foundation on the symptoms and signs of fibromyalgia. The booklet noted that fibromyalgia is a form of soft tissue or muscular rheumatism rather than arthritis of a joint. In statements dated in February 1995, a private physician reported that the veteran was a patient in his clinic and that he had a diagnosis of fibromyalgia that had been confirmed by a rheumatology consultant. He noted that the veteran was suffering from severe diffuse musculoskeletal pain and chronic fatigue. He added that the veteran had difficulty with back discomfort with degenerative changes of his lumbar spine that are thought to be related to an injury that occurred while on active duty in the Air Force. He furthermore stated that because of the veteran's fibromyalgia he was unable to continue with his employment. He indicated that the etiology of the disorder was unknown. In a letter dated in April 1995 the veteran's private physician indicated that the exact cause of fibromyalgia was unknown. It appeared that emotional or physical trauma could trigger the syndrome as well as hormonal changes. The physician indicated that the veteran's severe back pain which had become progressively worse "may have triggered" the fibromyalgia. In a second letter dated in April 1995 the private physician reported that the veteran had fibromyalgia. He noted that this disorder seemed to be his major health problem at this time and that the veteran complained of diffuse muscular pain, weakness and chronic fatigue. He furthermore stated because of the profound weakness the veteran is experiencing and because of his generalized muscular pain he has been unable to hold down a full-time job. This letter was addressed to the State Rehabilitation Commission. Private treatment records dated from 1994 to 1997 show that the veteran was treated for fibromyalgia. In a letter dated in March 1997 a private physician noted that the veteran had a confirmed diagnosis of fibromyalgia and that his prognosis for any significant improvement was poor. VA received the veteran's application for increased compensation based on individual unemployability in February 1998. On this application the veteran reported that due to disability he last worked full time in December 1994. He reported that he had two years of college and was trained in the area of production. He further noted prior employment between November 1989 and July 1995 as a computer specialist. On VA examination in May 1998 the examiner noted that a review of the veteran's medical records show that he has had a history of fibromyalgia since 1994 and has not worked since 1994. It was noted that the condition was currently active and involved the veteran's wrist, hands, knees, back, pectoral folds, hips, and ankles. Fibromyalgia was diagnosed. The examiner noted with respect to an opinion regarding the relationship between fibromyalgia and back strain that with a normal neurological examination that I find today, that a fibromyalgic-type syndrome could be consistent with his perceived low back pain. VA outpatient treatment records compiled between 1998 and 2000 show evaluation and treatment provided to the veteran for multiple complaints to include complaints of back pain and fibromyalgia. In a decision dated in October 1996 the SSA awarded the veteran disability insurance benefits based on a finding that the veteran had fibromyalgia and depression, which were stated to be severe impairments within the meaning of SSA regulations. On a VA examination in November 2002 the veteran's examiner noted that he had reviewed the veteran's claims file and obtained medical history from the veteran including history related to the veteran's evaluation and treatment for fibromyalgia. He further noted that the veteran indicated that in 1994 he obtained SSA benefits and in that same year he had been diagnosed with fibromyalgia. The veteran complained of pain in the neck, low back, knees, ankles, and shoulders and sometimes in the surrounding areas as well. He also stated that he had chronic fatigue and that he has hurt all over since his back injury in service. On physical examination of the veteran's low back it was noted that he could flex to 100 degrees, extend to 25 degrees, and bend laterally 15 degrees to the right and 20 degrees to the left. Straight leg raising caused lower thoracic and bilateral lumbar paraspinal pain but no radicular pain. Patrick's test was noted to cause some pain above the sacroiliac joint. Neurologically, motor strength and tone were intact in both upper and lower extremities. Deep tendon reflexes were two plus and symmetrical except for one-plus right ankle jerk. A lumbosacral spine X-ray was interpreted to show mild L4-5 disc space narrowing. There was facet arthropathy at several levels. Fibromyalgia and mechanical low back pain with degenerative changes with no evidence of radiculopathy were diagnosed. The examiner stated that he could find no evidence that the veteran's fibromyalgia had its onset or is otherwise related to the veteran's active military service. He also stated that he could find no evidence that the fibromyalgia resulted from service-connected lumbosacral strain or that fibromyalgia has resulted in worsening the severity of the service-connected lumbosacral strain. He added that he could find no evidence that the veteran had any muscle spasm and there is no additional functional loss attributable to the veteran's low back resulting from increased or decreased excursion, decreased strength, speed or endurance, absence of necessary structures, deformity, adhesion or a defective enervation, weak in movement, excess fatigability or incoordination. He did observe that the veteran did have pain on use with prolonged standing or sitting. He furthermore added that he did not believe that the veteran's service-connected back disability precluded the veteran from engaging in gainful employment. He lastly indicated that the veteran's work restrictions would include avoidance of heavy lifting, repetitive bending, prolonged standing or sitting. The veteran presented to a VA pain management clinic in December 2002 for follow-up of a lumbar epidural steroid injection performed in December 2002 for treatment of lumbar radiculitis. On physical examination at this time the veteran was noted to use a cane for ambulatory assistance. His spine had a normal curvature with tenderness to palpation over the lumbosacral region. Lumbar radiculitis, degenerative disc disease of the lumbar spine, lumbar facet arthropathy and fibromyalgia were the diagnostic assessments. The veteran was provided a repeat lumbar epidural steroid injection. VA outpatient treatment records compiled during 2003 and 2004 show that the veteran continued to receive epidural steroid injections from the VA Pain Clinic for lumbar radiculitis. A VA physician reviewed the veteran's claims file in May 2004. The reviewing physician opined that it is less likely than not that the fibromyalgia is aggravated by the service- connected low back disorder. He added, as rationale for this opinion, that there is no evidence to support that the low back pain would result in generalized muscular pain. Additional treatment records include a VA report dated in April 2005. At that time, the veteran reported lower back and leg pain, and it was noted that he had been diagnosed with fibromyalgia. He refused rheumatology referral. When spoken to by phone in October 2005, the veteran noted various joint and muscle complaints due to fibromyalgia with profuse sweating. It was again suggested that he see a rheumatologist, but he declined. In November 2005, his complaints continued but neurological and musculoskeletal examinations revealed no gross deficits. The record reflects that an attempt by the RO in late 2006 to obtain additional records from a VA facility in Texas were unsuccessful. In January 2007, the veteran reported continued complaints of chronic fatigue and aches from fibromyalgia. When examined orthopedically by VA in February 2007, it was noted that the claims file was reviewed. The veteran reported that he experienced current daily low back pain with radiation to both legs. This affected his ability to walk. His gait was markedly limited without a cane. He said that he had 24 incapacitating episodes in the past year. He received injection therapy but no physical therapy. He was not currently being treated for pain as he was intolerant to many medications. He suffered flare-ups 3 to 4 times per week lasting hours to days. He could sit only 30 minutes. The examiner noted that the veteran appeared to be in pain even at rest, and he had to log roll to get off and on the examination table. Physical examination revealed 45 degrees of flexion with pain, but with no additional limitation following repetitive use. There was mid lumbar tenderness with some straight leg raising permitted. Neurological examination showed motor strength and sensory function that appeared normal. The diagnoses were degenerative joint disease and disk disease of the lumbosacral spine. The examiner opined that the veteran was employable only for sedentary work which would allow frequent changes position. VA neurological examination was conducted approximately one week later. The claims file was reviewed by the examiner. The examiner stated that the veteran had undergone neurologic evaluations with no abnormal findings and X-rays that revealed only minimal spondylosis and mild facet arthropathy. He complained of severe back pain with occasional radiation into either leg. He denied any loss of sensation. Neuromuscular exam revealed no muscle atrophy and normal muscle strength. It was noted that the veteran walked with a cane and had difficulty rising from a seated position without assistance. Tendon reflexes were symmetrical and no pathologic reflexes were noted. The examiner concluded that he had no primary neurological dysfunction. He opined that the veteran had mild osteoarthritis with significant lumbar pain with no neurologic basis. The examiner further opined that the previously diagnosed fibromyalgia was likely the best explanation for his complaints. Added to the record in February 2008 were duplicate copies of VA neurological and orthopedic examinations from February 2007 as summarized above. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis - Fibromyalgia The veteran's service medical records show that he was seen for pain in his back and side with myositis being diagnosed in September 1962. However, these records show no findings and/or diagnosis of fibromyalgia. Furthermore the first diagnosis of fibromyalgia was in the mid 1990s, many years after service. Additionally, in November 2002, a VA physician found no evidence that fibromyalgia had its onset in service. Competent medical evidence to the contrary has not been presented. It is contended by the veteran, on an alternative basis, that his current fibromyalgia is causally related to his service- connected lumbosacral strain. In this regard, his private physician on Apri1 1995 stated that the veteran's severe back pain that had been progressively worse may have triggered his fibromyalgia. In view of the language used, (e.g., "may have" and "triggered"), the Board finds that the opinion is speculative in nature as to both service incurrence and aggravation. Additionally VA examiners in November 2002 and May 2004, who reviewed the claims folder, found no relationship between the service-connected low back disorder and the fibromyalgia. The Board finds that the VA examiner's opinions are more probative. They reflect that review of the entire claims file was accomplished. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the VA examiners who reviewed the record. Moreover, the VA physician in 2002 also examined the veteran prior to providing an opinion. As such, the Board finds that the preponderance of the evidence is against the claim that the service connected low back disorder caused or aggravates the fibromyalgia. Accordingly, it is the judgment of the Board that the service connection for fibromyalgia on direct or secondary bases is not warranted. The evidence is not equipoise as to warrant the application of the benefit of the doubt doctrine. 38 C.F.R. § 3.102 (2007). Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole- recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2007); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002 & Supp. 2007); 38 C.F.R. § 4.3. The Board notes, however, that the Court has held that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board observes that the words "slight", "moderate", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2007). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.2, 4.6 (2007). Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14 (2007); see Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban v. Brown, 6 Vet. App. at 262. During the pendency of the veteran's claim and appeal, the rating criteria for evaluating intervertebral disc syndrome were amended. See 38 C.F.R. § 4.71a, DC 5293 (2003), effective September 23, 2002. See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002). In 2003, further amendments were made for evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DC 5235 to 5243 (2007)). An omission was then corrected by reinserting two missing notes. See 69 Fed. Reg. 32,449 (June 10, 2004). The latter amendment and subsequent correction were made effective from September 26, 2003. Where a law or regulation (particularly those pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2007), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The veteran does get the benefit of having both the old regulation and the new regulation considered for the period before and after the change was made. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Accordingly, the Board will review the disability rating under the old and new criteria. Review of the record shows that the veteran's claim has been evaluated pursuant to both the old and new regulations. Accordingly, there is no prejudice to the veteran in our proceeding under Bernard v. Brown, 4 Vet. App. at 393-94. Analysis - Lumbosacral Strain with DDD The veteran's service-connected low back disability has been evaluated as 20 percent disabling for many years. Normal range of motion of the thoracolumbar spine is flexion- extension from 0 to 90 degrees and 0 to 30 degrees; lateral flexion from 0 to 30 degrees and rotation from 0 to 30 degrees. Id. Under DC 5292, limitation of motion in the lumbar spine was assigned a 40 percent rating when severe, a 20 percent rating when moderate, and a 10 percent rating when slight. 38 C.F.R. § 4.71a, DC 5292 (2002), effective prior to September 26, 2003. Under the old regulations, effective prior to September 2003, under DC 5295, a 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. § 4.71a, DC 5295, effective prior to September 26, 2003. A 40 percent evaluation required severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Id. Under the old regulations for DC 5293, in effect before September 23, 2002, a 20 percent evaluation was warranted for intervertebral disc syndrome if the disability was moderate with recurring attacks. 38 C.F.R. § 4.71a, DC 5293, effective prior to September 23, 2002. A 40 percent evaluation was assigned if it is severe with recurring attacks with intermittent relief. Id. An evaluation of 60 percent was warranted when the disability was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. Under the current rating criteria, that became effective on September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine. See 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450) (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5343). Under the revised criteria, lumbosacral strain is evaluated under DC 5237. Under the current regulations, a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. Id. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. These evaluations are for application 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. Id. (This clearly implies that the factors for consideration under the holding in DeLuca v. Brown, supra, are now contemplated in the rating assigned under the general rating formula.) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. Id., Note (1). There is no medical evidence of record to reflect that the veteran had forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent evaluation under the regulations currently in effect. Ankylosis, whether favorable or unfavorable, involves fixation of the spine. Id. at 51,457, Note (5). Ankylosis has been defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dorland's Illustrated Medical Dictionary 86 (28th ed. 1994). Under the new regulations, effective September 26, 2003, DC 5241 provides that a 40 percent rating will be assigned for ankylosis of the lumbar spine at a favorable angle, and a 50 percent rating assigned for ankylosis at an unfavorable angle. 38 C.F.R. § 4.71a, DC 5241 (2007). Under the revised regulations, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under section 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. However, the total medical evidence of record reflects that while the veteran recently reported 24 episodes of incapacitating episodes in the past year, his treatment records have not demonstrated that he was prescribed bed rest by his examiners due to his back condition. Moreover, the neurologist who recently examined the veteran opined that the veteran's primary complaints at the current time were most likely the result of his fibromyalgia, a nonservice-connected condition. Upon review of the probative medical evidence of record, the Board has determined that a rating in excess of the currently assigned 20 percent evaluation is not warranted for lumbosacral strain with DDD. As summarized in the factual background above, the veteran's gait has been markedly limited. However, he has never exhibited the degree of limitation that would provide for a rating in excess of the currently assigned 20 percent rating. See, for example, the November 2002 exam report when he could forward flex to 100 degrees of flexion, or to the 2007 report where he had 45 degrees of forward flexion. Also, at the 2007 report, he had 10 degrees of extension, and bilateral lateral flexion and bilateral rotation were to 5 degrees. Thus, his combined limitation of motion was not in excess of 120 degrees, with consideration of pain as a mitigating factor, and does not warrant a rating in excess of 20 percent. DeLuca. Moreover, as noted above, his primary complaints at the current time are related to his fibromyalgia and not his service-connected low back disorder. Also, no scoliosis, reversed lordosis, or abnormal kyphosis has ever been manifested. Clearly, the veteran is entitled to a 40 percent or higher rating under the new criteria (because ankylosis, or forward flexion limited to 30 degrees or less is never shown to have been manifested). He meets the criteria for a 20 percent rating as his forward flexion is limited to 45 degrees. This is assuming that his limitation is the result of his service-connected low back disorder and not his nonservice-connected fibromyalgia. Thus, rating the veteran's low back disorder under new DC 5237 and the new "General Rating Formula for Diseases and Injuries of the Spine" does not result in a rating in excess of 20 percent. Turning to other appropriate regulations, it is noted that pursuant to the regulations in effect prior to September 26, 2003, a 20 percent rating was available for moderate limitation of lumbar motion under DC 5292, and a 40 percent rating was also available for severe limitation of lumbar motion under DC 5292 (2002). Lumbosacral strain was evaluated as 20 percent disabling when there was a disability picture consistent with: muscle spasm on extreme forward bending, a loss of lateral spine motion, unilateral, in the standing position. Lumbosacral strain that was severe was assigned a 40 percent rating. Severe strain contemplated listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in standing position, a loss of lateral motion with osteo- arthritic changes, or a narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Again, the preponderance of the evidence still is against a rating higher than 20 percent for the low back disability. This is because severe limitation of motion due to the service-connected low back strain with DDD is not shown by the objective medical evidence of record. Also, none of the criteria enumerated at DC 5295 as representative of a severe lumbosacral strain disability are shown, either. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The Board finds that the effects of pain reasonably shown to be due to the veteran's orthopedic findings of the low back disorder are contemplated in the currently assigned 20 percent rating. There is no indication that pain, due to disability of the lumbar spine, causes functional loss greater than that contemplated by the 20 percent evaluation now assigned. 38 C.F.R. § 4.40, 4.45; DeLuca, supra. Nor is a higher rating warranted under DC 5293, for intervertebral disc syndrome. As set forth above, the evidence on file does not reflect disability or functional impairment to the extent to warrant a rating in excess of 20 percent under the old or current rating criteria for intervertebral disc syndrome. The Board also notes that in some cases it is permissible to rate a back disorder under one or more separate DCs that together provide for the manifestations of the disability, including pain, loss of motion, and neurological findings, although such a rating or ratings would be instead of, rather than in addition to, a disability rating under DC 5292. For rating the neurological manifestations of the back disability, DC 8520 (sciatic nerve dysfunction) is for consideration. However, as summarized above, there is no neurological basis for the veteran's complaints. See the 2007 examination report. Thus, DC 8520 that evaluates incomplete paralysis of the sciatic nerve, is not for application. 38 C.F.R. § 4.124a, DC 8520 (2007). The Board concludes that the objective medical evidence of record preponderates against a finding that the orthopedic findings associated with the veteran's low back disability warrants a rating in excess of 20 percent. The Board does not find that the evidence is so evenly balanced that there should be doubt as to any material issue regarding the matter of a rating in excess of 20 percent for the service- connected lumbosacral strain with DDD. The preponderance of the evidence is clearly against the claim. 38 U.S.C.A. § 5107. Moreover, the Board finds that the evidence does not present such an exceptional or usual disability picture "as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2006). There has been no allegation or showing in the record on appeal that the appellant's service-connected lumbosacral strain with DDD has caused marked interference with employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board is not required to discuss the possible application of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b) (2006). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2005). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2006). Analysis In this case, the veteran has more than a high school education. He last worked in the late 1990s as a computer specialist. Here, the veteran has only one compensable service-connected disability and that is the 20 percent lumbosacral strain with DDD discussed above. Manifestations of this disorder are significant, although the evidence current shows that his primary disability is nonservice-connected fibromyalgia. At any rate, he does not meet the minimum schedular criteria for a TDIU. It is the established policy of VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service- connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extra-schedular consideration. The Board concludes the veteran is not unemployable due to his service-connected disability. There is no evidence of record that the veteran's lumbar strain with DDD has restricted his activities to the point where is gainfully unemployable. In fact, it was recently opined by a VA orthopedic examiner that the veteran was employable in a sedentary situation. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Thus, the Board is unable to identify a reasonable basis for granting the veteran's claims. Also considered was referral of the case for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), but the Board finds no basis for further action on this question as there are no circumstances presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. ORDER Entitlement to service connection for fibromyalgia, to include as secondary to service-connected lumbosacral strain, is denied. Entitlement to a rating in excess of 20 percent for lumbosacral strain with DDD, is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs