Citation Nr: 1017331 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 07-21 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. What initial evaluation is warranted for residuals of a low back injury, strain, and sacroilitis, for the period prior to December 31, 2006? 2. What initial evaluation is warranted for residuals of a low back injury, strain, and sacroilitis, for the period since January 1, 2007? 3. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to October 1991. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of October 1999 and December 2006 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The former denied entitlement to service connection for the low back disorder, and the latter denied entitlement to service connection for fibromyalgia on a direct basis. A November 2005 rating decision granted service connection for the low back residuals and assigned an initial 10 percent evaluation, effective May 1997, and the Veteran appealed the initial evaluation. The Veteran appeared at a Travel Board hearing in January 2010 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. Documents in the claims file note the Veteran's low back claim as an appeal from a 2005 rating decision that denied a claim received by VA in March 2004. The Board notes further that he submitted a timely September 2000 appeal of the October 1999 rating decision, and a statement of the case was issued in December 2001. The U.S. Postal Service, however, returned the statement of the case to VA as undeliverable as addressed, and the claims file does not indicate the statement of the case was remailed to the address later noted as the Veteran's then current address of record. Thus, the Veteran's July 2007 substantive appeal perfected his appeal to the October 1999 rating decision. Consequently, there is no unprocessed appeal related to the low back residuals. This was apparently recognized by the RO, as the effective date of the grant of service connection, May 1997, is the date the Veteran's initial claim was received. See 38 C.F.R. § 3.400 (2009). The Board notes the Veteran perfected separate appeals related to the evaluation of a respiratory disorder and receipt of additional payment for dependent children. As concerns the former, the Veteran asserted he should be service connected for asthma and rated at 30 percent. A February 2003 rating decision granted the benefit and informed the Veteran his appeal was deemed resolved. There is no record of his having disagreed with that notice. The status of dependents issue was also resolved by the RO by granting the benefit sought. Thus, those issues are deemed resolved, they are not before the Board, and will not be addressed in the decision below. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues regarding the initial evaluation warranted for the low back injury residuals for the period beginning on January 1, 2007, and entitlement to service connection for fibromyalgia are addressed in the REMAND portion of the document below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period prior to January 1, 2007, the Veteran's low back injury residuals were not manifested by a moderate lumbar spine limitation of motion, lumbosacral muscle spasm on extreme forward bending, or by associated service connected neurological symptomatology. CONCLUSION OF LAW The requirements for an evaluation higher than 10 percent for residuals of a low back injury, strain, and sacroilitis, for the period prior to January 1, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5295 (2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. There is no indication that either the Veteran or his representative identified or requested any information or evidence that VA failed to develop. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Thus, the Board may address the merits of this appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations 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). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from 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 with the Veteran's low back injury residuals. 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. Analysis The history of the Veteran's claim and initial evaluation are set forth in the Introduction. As set forth earlier, VA received the Veteran's claim in May 1997. His initial 10 percent evaluation was assigned under Diagnostic Code 5295. See 38 C.F.R. § 4.71a (2002). At the time the Veteran filed his claim, the above noted criteria provided that a lumbosacral strain was evaluated as 10 percent disabling when there was characteristic pain on motion. A 20 evaluation was warranted for a lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). A limitation of lumbar motion was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292. Those criteria provided for a 10 percent evaluation for a mild limitation of motion, and a 20 percent for moderate limitation of motion. See 38 C.F.R. § 4.71a (2002). Following receipt of the Veteran's claim, he underwent a Persian Gulf protocol in April 1997. The examination report notes his multiple complaints of various joint pains did not include complaints of back pain. A September 1997 VA general examination report noted the Veteran's history of low back pain, which was increased by activity. Physical examination revealed no costovertebral angle tenderness, and limitation of motion manifested only on lateral bending. The examiner noted the findings were negative for rheumatoid arthritis, and the Veteran's back manifested a "full range of motion." The Board infers the examiner referred to full range of motion on forward flexion and backwards extension. An October 1999 rating decision granted entitlement to service connection for recurrent arthralgia due to an undiagnosed illness, see 38 C.F.R. § 3.317 (2009), but denied entitlement to service connection for a low back disorder on a direct basis. See 38 C.F.R. § 3.303. Nonetheless, the Board notes the objective findings on clinical examination show the Veteran's low back disorder to have more nearly approximated the assigned 10 percent rating as of the October 1999 rating decision. 38 C.F.R. § 4.7. In light of the findings of full lumbar spine range of motion, and no indication of pain on range of motion, the 10 percent is deemed to address the Veteran's functional loss due to chronic pain. See 38 C.F.R. §§ 4.40, 4.45. The Board finds the criteria for a rating in excess of 10 percent were not met or more nearly approximated because there was no evidence of a moderate limitation of lumbar motion or muscle spasm on extreme forward bending. In his September 2000 notice of disagreement, the Veteran did not address the severity of his low back symptoms, which is understandable in as much as he was seeking service connection at the time. He did concede, however, that there was no evidence of a specific diagnosed low back disorder, but his various joint pains, to include his back, were related. The probative medical evidence of record, both private and VA, note the Veteran's continued complaints of, and treatment for, complaints of chronic back pain, but no objective findings which meet or approximate a rating higher than 10 percent. May 1997 private records of Georgetown Hospital, Texas, note complaints but offer no diagnosis of a specific disorder. A November 2000 VA entry notes tenderness to palpation of the lumbar area but no range of motion findings. The Board notes the vast majority of the Veteran's VA treatment records were generated by the rheumatology clinic of the VA facility where he is treated. They do not however, note a diagnosis of rheumatoid arthritis or other inflammatory process. Thus, the Board finds no factual basis for an evaluation under Diagnostic Code 5002. See 38 C.F.R. § 4.71a (2009). During a January 2001 VA outpatient clinic visit acute back pain without trauma was noted. On a scale of 1 to 10, the Veteran assessed his pain as 6/10. Physical examination revealed some paraspinal spasm, but it was not noted as occurring on extreme forward bending. X-rays were read as having shown possible widening of the lumbar S1 joint. Also during this period, a bone scan was interpreted as showing normal results. The August 2001 examination report notes the Veteran reported his lumbar spine as his number one musculoskeletal problem, as it was always aggravated by bending, prolonged sitting, and prolonged standing, etc. Physical examination revealed mild to moderate tenderness of the spinal lumbosacral muscles on deep pressure but no triggers. X-rays showed minor productive changes at L4. A March 2002 VA fibromyalgia examination report notes the Veteran's complaints of generalized back pain. The examiner noted the Veteran's rheumatoid factor was negative, examination revealed no muscle spasms, and he was neurologically intact. X-rays were interpreted as having shown mild degenerative changes. The examiner diagnosed mild degenerative changes of the thoracic and lumbar spine. The March 2002 VA joints examination report notes the Veteran reported his symptoms were sometimes worse during cold weather, and his symptoms were generally relieved by rest. Examination revealed tenderness in the lumbar and sacroiliac areas but no muscle spasm. Range of motion on forward flexion was 70 to 90 degrees with pain, and backwards extension was 20 to 30 degrees with pain. The examiner diagnosed chronic low back pain with sacroilitis, and minimal productive changes of the lumbosacral and thoracic spine. The Board finds that preponderance of the post-October 1999 medical evidence set forth above shows the Veteran's low back injury residuals continued to more nearly approximate a 10 percent rating. 38 C.F.R. § 4.7. Any limitation of lumbar motion was mild at most, and there were no objective findings of neurological deficits. Thus, the assigned 10 percent continued to address the Veteran's chronic lumbar pain. See 38 C.F.R. §§ 4.40, 4.45. The examination reports note no findings of any additional loss of range of motion due to pain, weakness, and fatigue, etc. DeLuca. As noted earlier, the Veteran submitted "another claim" in March 2004. During the interim, the spine rating criteria were changed twice since VA received, adjudicated, and assigned initial evaluations to the Veteran's spine disabilities. The initial change applied solely to the rating criteria for intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, and the effective date was September 23, 2002. See 67 Fed. Reg. 54,345 (2002). The regulation as it existed prior to the change is applicable to a claimant's claim for the period prior to the date of the regulatory change, and thereafter if more favorable to the appellant. The revised regulation is only applicable from the effective date of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The statement of the case and supplemental statements of the case of record informed the Veteran of all changes to the criteria, and the RO considered his claim under all applicable criteria. See Bernard v. Brown, 4 Vet. App. 384 (1993). As a result, the Board may also consider the prior and current criteria. There is no evidence of a service related intervertebral disc syndrome for the period prior to September 26, 2003. Thus, the September 2002 change has no impact on the Veteran's claim. The General Rating Formula for Diseases and Injuries of the Spine was effective as of September 26, 2003. See 68 Fed. Reg. 51,454 (August 27, 2003). The General Formula introduced specific objective criteria, including specific values for range of motion of the thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, a normal range of motion on forward flexion is from 0 to 90 degrees; normal backwards extension is from 0 to 30 degrees; and normal lateral flexion and rotation are from 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V (2009). The General Formula also changed the numerical designation of the spine Diagnostic Codes. Diagnostic Code 5237 replaced 5295 for lumbosacral strain. For a lumbosacral strain under Diagnostic Code 5237, the General Formula provides that, 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. 38 C.F.R. § 4.71a (2009). A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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. For forward flexion of the thoracolumbar spine of greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, a 10 percent rating applies. 38 C.F.R. § 4.71a. In his March 2004 submission, the Veteran asserted he should be rated at 20 percent under Diagnostic Code 5003, which evaluates degenerative arthritis. See 38 C.F.R. § 4.71a (2009). That code provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. Further, if the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. 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, rate as below: with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, 20 percent. Id. If rated under this provision for noncompensable limitation of motion, the rating is not to be combined with ratings based on limitation of motion, 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). The cervical vertebrae, dorsal vertebrae, and the lumbar vertebrae, is considered a group of minor joints ratable on parity with a major joint. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. See 38 C.F.R. § 4.45(f). The Veteran claims that he met or approximated a 20 percent rating because he had experienced incapacitating episodes. He claims some 40-plus "incapacitating episodes" due to his low back disorder. Initially, the Board notes the Veteran's submission is not clear or specific as to whether he meant on incapacitating episodes under the current criteria-or General Formula. If so, the Board must reject his assertion. Only an intervertebral disc syndrome is rated on the basis of incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). The Veteran is not service connected for an intervertebral disc syndrome. Further, an incapacitating episode is defined as 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. Id., Note 1. There is no evidence the Veteran has had incapacitating episodes, as that term is defined by 38 C.F.R. § 4.71a. While he noted having taken days off and used bed rest as self-treatment, he conceded at the hearing that no physician had prescribed bed rest for his low back disorder. As concerns Diagnostic Code 5003, while some x-ray reports since 2002 note lumbar degenerative changes, other reports note a normal x-ray. In any event, the evidence of record shows only one segment of the Veteran's spine is service connected-his lumbar spine. The rating decision notes sacroilitis, but that indicates inflammation, rather than degenerative arthritis. Thus, the Veteran is properly rated under the spine diagnostic code based on limitation of motion. The evidence of record shows that the Veteran's low back most nearly approximated the assigned 10 percent rating. A February 2003 VA rheumatology clinic entry notes the Veteran's complaints of intermittent episodes of increased back pain with spasms. The Board notes, however, that the entry does not provide range of motion values or even any indication range of motion testing was in fact conducted. A March 2004 entry notes the Veteran's presentation with complaints of acute back pain. He noted his work as an engineer was not physically demanding. No specific findings are noted, but the impression was upper back pain secondary to posture. A July 2005 VA entry notes physical examination was positive for a lumbar spasm but, again, the examiner did not indicate the Veteran's muscle spasm occurred on extreme forward bending as required by law. An August 2005 entry notes lumbar spine range of motion was normal with pain at the end of flexion and on extension back to zero degrees. The August 2005 joints examination report prepared about 10 days later notes the Veteran denied use of any assistive devices. He reported taking Tramadol and Naproxen for symptom relief. The examiner noted examination revealed no inflammatory arthritis or ankylosis, and no lumbar spasm. An October 2005 chiropractic entry notes the Veteran's low back was positive for significant spasms and, in light of his long-term complaints of chronic low back pain, he was referred to a VA chiropractor. A November 2005 chiro entry notes the Veteran's complaints of low back pain that radiated into his right lower extremity. Examination, however, revealed negative straight leg raising, and no subjective paresthesia or myotomal deficit. Reflexes were 2+. A December 2005 MRI examination report notes an MRI examination showed a mild central disc herniation at L4-5 but no evidence of nerve pinching. Physical examination revealed no spasm. A March 2006 rheumatology clinic entry notes examination revealed minimal tenderness of the lumbar spine. In sum, the preponderance of the evidence shows no evidence of a moderate limitation of lumbar motion under Diagnostic Code 5292, or lumbosacral strain with muscle spasm on extreme forward bending under Diagnostic Code 5295, under the pre- September 2003 rating criteria. Neither does the post- September 2003 evidence show a limitation of thoracolumbar flexion less than 61 degrees or spasms of sufficient severity to cause abnormal gait or spinal contour, either of which would warrant a 20 percent rating under the General Formula. The Board also notes the absence of objective findings of an additional loss of range of motion due to pain, weakness, or fatigue. See 38 C.F.R. §§ 4.40, 4.45. Another facet of the Veteran's disability is the fact that, as noted earlier, he is service connected and compensated for joint arthralgias due to an undiagnosed illness. VA treatment records indicate the vast majority of his chronic pain, to include of a degree that it awakens him at night, is due to that symptomatology. Thus, the Board is constrained to comply with 38 C.F.R. § 4.14, that is to say, the Veteran may not be compensated more than once for the same symptomatology. In any event, as found, the Board finds the Veteran's low back injury residuals most nearly approximated a 10 percent rating for the period prior to January 1, 2007. 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2009); § 4.71a, Diagnostic Code 5295 (2002). As noted earlier, the Veteran referred to the days he missed work due to his pain. On the other hand, examination reports note the Veteran's report that his job is not physically demanding, and his chronic pain had not significantly impacted his ability to do his job. There also is the matter, as discussed earlier, that the majority of the Veteran's various joint pains are due to arthralgia. In any event, out of an abundance of caution, the Board finds he raised the propriety of extraschedular consideration, which the RO found not warranted. Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). In exceptional cases, where the rating schedule is deemed 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 applicable criteria, an extraschedular 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). The first step in the extraschedular analysis is whether the Veteran's disability is exceptional. If not, referral for extraschedular consideration is not indicated. Id. The Board finds the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. His disability picture is contemplated by the rating schedule, as the very symptoms manifested by his low back injury residuals and discussed above are included in the schedular rating criteria. In light of these factors, his disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). Thus, the currently assigned 10 percent schedular rating already adequately addresses, as far as can practicably be determined, the average impairment of earning capacity due to the Veteran's service-connected low back injury residuals prior to January 1, 2007. See 38 C.F.R. § 4.1. In the absence of an exceptional disability picture, the Board finds no basis on which to disagree with the RO's assessment that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial evaluation higher than 10 percent for residuals of low back injury, strain, and sacroilitis, for the period prior to January 1, 2007, is denied. REMAND The Veteran's treatment records through December 2006 are in the claims file. He noted at the hearing that he last saw his VA physician in February 2009, and that his symptoms have increased in severity. The Veteran is entitled to a new VA examination where there is evidence that the service- connected disorder has worsened. Snuffer v. Gober, 10 Vet. App. 400 (1997). He is competent to describe his symptomatology and severity. See 38 C.F.R. § 3.159(a)(2). Thus, he will be afforded another examination. As noted a number of times in the decision above, the Veteran is service connected for arthralgias due to an undiagnosed illness. His March 2004 claim asserted that his symptoms met the criteria for fibromyalgia, and he requested an increased rating under 38 C.F.R. § 4.71a, Diagnostic Code 5005, which rates that disorder. The September 2004 rating decision granted entitlement to an increased rating for his undiagnosed illness and denied entitlement to service connection for fibromyalgia. An August 2005 examination report notes the examiner opined that no evidence of fibromyalgia was found. The examiner noted that a number of the Veteran's claimed symptoms manifested prior to the Persian Gulf War which, he noted, did not comply with one of the criteria needed to find an undiagnosed illness. The Veteran, however, is also seeking entitlement to service connection on a direct basis. See 38 C.F.R. § 3.303 (2009). Moreover, a June 2004 examination diagnosed the Veteran with fibromyalgia, and the 2005 examiner neither noted nor commented on the 2004 examination findings. This must be clarified. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated the Veteran for low back injury residuals and joint pains since January 2007. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. After the above is complete, regardless of whether additional records are obtained, the AMC/RO will arrange a VA examination for the Veteran to determine the current severity of his low back injury residuals. All indicated diagnostic tests should be conducted. The claims folder and a copy of this remand should be made available to the examiner for review as part of the examination. The examiner is asked to specifically distinguish and note the Veteran's claimed chronic back pain that is due to his low back injury residuals and that which is due to arthralgia. 3. The AMC/RO shall refer the claims file to the examiner who conducted the August 2005 fibromyalgia examination, or an equally qualified physician. Ask the physician to review the claims file and this remand and opine whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's objective symptoms meet the criteria for a diagnosis of fibromyalgia. If so, is there at least a 50-50 probability it is related to symptoms manifested during his active service, or is otherwise related to his active service. Any opinion should be fully explained and the rationale provided. The examiner should specifically note and comment on the June 2004 diagnosis of fibromyalgia. If an examiner other than the one who conducted the August 2005 VA fibromyalgia examination reviews the claims file, he/she is asked to comment on both examinations and diagnoses. Any opinion should be fully explained and the rationale provided. In preparing the requested opinions, the examining physician(s) must note the following: ? "It is due to" means 100 percent assurance of relationship. ? "It is at least as likely as not" means 50 percent or more. ? "It is not at least as likely as not" means less than a 50 percent chance. ? "It is not due to" means 100 ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. What initial evaluation is warranted for residuals of a low back injury, strain, and sacroilitis, for the period prior to December 31, 2006? 2. What initial evaluation is warranted for residuals of a low back injury, strain, and sacroilitis, for the period since January 1, 2007? 3. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to October 1991. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of October 1999 and December 2006 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The former denied entitlement to service connection for the low back disorder, and the latter denied entitlement to service connection for fibromyalgia on a direct basis. A November 2005 rating decision granted service connection for the low back residuals and assigned an initial 10 percent evaluation, effective May 1997, and the Veteran appealed the initial evaluation. The Veteran appeared at a Travel Board hearing in January 2010 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. Documents in the claims file note the Veteran's low back claim as an appeal from a 2005 rating decision that denied a claim received by VA in March 2004. The Board notes further that he submitted a timely September 2000 appeal of the October 1999 rating decision, and a statement of the case was issued in December 2001. The U.S. Postal Service, however, returned the statement of the case to VA as undeliverable as addressed, and the claims file does not indicate the statement of the case was remailed to the address later noted as the Veteran's then current address of record. Thus, the Veteran's July 2007 substantive appeal perfected his appeal to the October 1999 rating decision. Consequently, there is no unprocessed appeal related to the low back residuals. This was apparently recognized by the RO, as the effective date of the grant of service connection, May 1997, is the date the Veteran's initial claim was received. See 38 C.F.R. § 3.400 (2009). The Board notes the Veteran perfected separate appeals related to the evaluation of a respiratory disorder and receipt of additional payment for dependent children. As concerns the former, the Veteran asserted he should be service connected for asthma and rated at 30 percent. A February 2003 rating decision granted the benefit and informed the Veteran his appeal was deemed resolved. There is no record of his having disagreed with that notice. The status of dependents issue was also resolved by the RO by granting the benefit sought. Thus, those issues are deemed resolved, they are not before the Board, and will not be addressed in the decision below. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues regarding the initial evaluation warranted for the low back injury residuals for the period beginning on January 1, 2007, and entitlement to service connection for fibromyalgia are addressed in the REMAND portion of the document below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period prior to January 1, 2007, the Veteran's low back injury residuals were not manifested by a moderate lumbar spine limitation of motion, lumbosacral muscle spasm on extreme forward bending, or by associated service connected neurological symptomatology. CONCLUSION OF LAW The requirements for an evaluation higher than 10 percent for residuals of a low back injury, strain, and sacroilitis, for the period prior to January 1, 2007, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5295 (2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. There is no indication that either the Veteran or his representative identified or requested any information or evidence that VA failed to develop. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Thus, the Board may address the merits of this appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations 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). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from 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 with the Veteran's low back injury residuals. 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. Analysis The history of the Veteran's claim and initial evaluation are set forth in the Introduction. As set forth earlier, VA received the Veteran's claim in May 1997. His initial 10 percent evaluation was assigned under Diagnostic Code 5295. See 38 C.F.R. § 4.71a (2002). At the time the Veteran filed his claim, the above noted criteria provided that a lumbosacral strain was evaluated as 10 percent disabling when there was characteristic pain on motion. A 20 evaluation was warranted for a lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). A limitation of lumbar motion was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292. Those criteria provided for a 10 percent evaluation for a mild limitation of motion, and a 20 percent for moderate limitation of motion. See 38 C.F.R. § 4.71a (2002). Following receipt of the Veteran's claim, he underwent a Persian Gulf protocol in April 1997. The examination report notes his multiple complaints of various joint pains did not include complaints of back pain. A September 1997 VA general examination report noted the Veteran's history of low back pain, which was increased by activity. Physical examination revealed no costovertebral angle tenderness, and limitation of motion manifested only on lateral bending. The examiner noted the findings were negative for rheumatoid arthritis, and the Veteran's back manifested a "full range of motion." The Board infers the examiner referred to full range of motion on forward flexion and backwards extension. An October 1999 rating decision granted entitlement to service connection for recurrent arthralgia due to an undiagnosed illness, see 38 C.F.R. § 3.317 (2009), but denied entitlement to service connection for a low back disorder on a direct basis. See 38 C.F.R. § 3.303. Nonetheless, the Board notes the objective findings on clinical examination show the Veteran's low back disorder to have more nearly approximated the assigned 10 percent rating as of the October 1999 rating decision. 38 C.F.R. § 4.7. In light of the findings of full lumbar spine range of motion, and no indication of pain on range of motion, the 10 percent is deemed to address the Veteran's functional loss due to chronic pain. See 38 C.F.R. §§ 4.40, 4.45. The Board finds the criteria for a rating in excess of 10 percent were not met or more nearly approximated because there was no evidence of a moderate limitation of lumbar motion or muscle spasm on extreme forward bending. In his September 2000 notice of disagreement, the Veteran did not address the severity of his low back symptoms, which is understandable in as much as he was seeking service connection at the time. He did concede, however, that there was no evidence of a specific diagnosed low back disorder, but his various joint pains, to include his back, were related. The probative medical evidence of record, both private and VA, note the Veteran's continued complaints of, and treatment for, complaints of chronic back pain, but no objective findings which meet or approximate a rating higher than 10 percent. May 1997 private records of Georgetown Hospital, Texas, note complaints but offer no diagnosis of a specific disorder. A November 2000 VA entry notes tenderness to palpation of the lumbar area but no range of motion findings. The Board notes the vast majority of the Veteran's VA treatment records were generated by the rheumatology clinic of the VA facility where he is treated. They do not however, note a diagnosis of rheumatoid arthritis or other inflammatory process. Thus, the Board finds no factual basis for an evaluation under Diagnostic Code 5002. See 38 C.F.R. § 4.71a (2009). During a January 2001 VA outpatient clinic visit acute back pain without trauma was noted. On a scale of 1 to 10, the Veteran assessed his pain as 6/10. Physical examination revealed some paraspinal spasm, but it was not noted as occurring on extreme forward bending. X-rays were read as having shown possible widening of the lumbar S1 joint. Also during this period, a bone scan was interpreted as showing normal results. The August 2001 examination report notes the Veteran reported his lumbar spine as his number one musculoskeletal problem, as it was always aggravated by bending, prolonged sitting, and prolonged standing, etc. Physical examination revealed mild to moderate tenderness of the spinal lumbosacral muscles on deep pressure but no triggers. X-rays showed minor productive changes at L4. A March 2002 VA fibromyalgia examination report notes the Veteran's complaints of generalized back pain. The examiner noted the Veteran's rheumatoid factor was negative, examination revealed no muscle spasms, and he was neurologically intact. X-rays were interpreted as having shown mild degenerative changes. The examiner diagnosed mild degenerative changes of the thoracic and lumbar spine. The March 2002 VA joints examination report notes the Veteran reported his symptoms were sometimes worse during cold weather, and his symptoms were generally relieved by rest. Examination revealed tenderness in the lumbar and sacroiliac areas but no muscle spasm. Range of motion on forward flexion was 70 to 90 degrees with pain, and backwards extension was 20 to 30 degrees with pain. The examiner diagnosed chronic low back pain with sacroilitis, and minimal productive changes of the lumbosacral and thoracic spine. The Board finds that preponderance of the post-October 1999 medical evidence set forth above shows the Veteran's low back injury residuals continued to more nearly approximate a 10 percent rating. 38 C.F.R. § 4.7. Any limitation of lumbar motion was mild at most, and there were no objective findings of neurological deficits. Thus, the assigned 10 percent continued to address the Veteran's chronic lumbar pain. See 38 C.F.R. §§ 4.40, 4.45. The examination reports note no findings of any additional loss of range of motion due to pain, weakness, and fatigue, etc. DeLuca. As noted earlier, the Veteran submitted "another claim" in March 2004. During the interim, the spine rating criteria were changed twice since VA received, adjudicated, and assigned initial evaluations to the Veteran's spine disabilities. The initial change applied solely to the rating criteria for intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, and the effective date was September 23, 2002. See 67 Fed. Reg. 54,345 (2002). The regulation as it existed prior to the change is applicable to a claimant's claim for the period prior to the date of the regulatory change, and thereafter if more favorable to the appellant. The revised regulation is only applicable from the effective date of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The statement of the case and supplemental statements of the case of record informed the Veteran of all changes to the criteria, and the RO considered his claim under all applicable criteria. See Bernard v. Brown, 4 Vet. App. 384 (1993). As a result, the Board may also consider the prior and current criteria. There is no evidence of a service related intervertebral disc syndrome for the period prior to September 26, 2003. Thus, the September 2002 change has no impact on the Veteran's claim. The General Rating Formula for Diseases and Injuries of the Spine was effective as of September 26, 2003. See 68 Fed. Reg. 51,454 (August 27, 2003). The General Formula introduced specific objective criteria, including specific values for range of motion of the thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, a normal range of motion on forward flexion is from 0 to 90 degrees; normal backwards extension is from 0 to 30 degrees; and normal lateral flexion and rotation are from 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V (2009). The General Formula also changed the numerical designation of the spine Diagnostic Codes. Diagnostic Code 5237 replaced 5295 for lumbosacral strain. For a lumbosacral strain under Diagnostic Code 5237, the General Formula provides that, 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. 38 C.F.R. § 4.71a (2009). A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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. For forward flexion of the thoracolumbar spine of greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, a 10 percent rating applies. 38 C.F.R. § 4.71a. In his March 2004 submission, the Veteran asserted he should be rated at 20 percent under Diagnostic Code 5003, which evaluates degenerative arthritis. See 38 C.F.R. § 4.71a (2009). That code provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. Further, if the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. 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, rate as below: with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, 20 percent. Id. If rated under this provision for noncompensable limitation of motion, the rating is not to be combined with ratings based on limitation of motion, 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). The cervical vertebrae, dorsal vertebrae, and the lumbar vertebrae, is considered a group of minor joints ratable on parity with a major joint. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. See 38 C.F.R. § 4.45(f). The Veteran claims that he met or approximated a 20 percent rating because he had experienced incapacitating episodes. He claims some 40-plus "incapacitating episodes" due to his low back disorder. Initially, the Board notes the Veteran's submission is not clear or specific as to whether he meant on incapacitating episodes under the current criteria-or General Formula. If so, the Board must reject his assertion. Only an intervertebral disc syndrome is rated on the basis of incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). The Veteran is not service connected for an intervertebral disc syndrome. Further, an incapacitating episode is defined as 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. Id., Note 1. There is no evidence the Veteran has had incapacitating episodes, as that term is defined by 38 C.F.R. § 4.71a. While he noted having taken days off and used bed rest as self-treatment, he conceded at the hearing that no physician had prescribed bed rest for his low back disorder. As concerns Diagnostic Code 5003, while some x-ray reports since 2002 note lumbar degenerative changes, other reports note a normal x-ray. In any event, the evidence of record shows only one segment of the Veteran's spine is service connected-his lumbar spine. The rating decision notes sacroilitis, but that indicates inflammation, rather than degenerative arthritis. Thus, the Veteran is properly rated under the spine diagnostic code based on limitation of motion. The evidence of record shows that the Veteran's low back most nearly approximated the assigned 10 percent rating. A February 2003 VA rheumatology clinic entry notes the Veteran's complaints of intermittent episodes of increased back pain with spasms. The Board notes, however, that the entry does not provide range of motion values or even any indication range of motion testing was in fact conducted. A March 2004 entry notes the Veteran's presentation with complaints of acute back pain. He noted his work as an engineer was not physically demanding. No specific findings are noted, but the impression was upper back pain secondary to posture. A July 2005 VA entry notes physical examination was positive for a lumbar spasm but, again, the examiner did not indicate the Veteran's muscle spasm occurred on extreme forward bending as required by law. An August 2005 entry notes lumbar spine range of motion was normal with pain at the end of flexion and on extension back to zero degrees. The August 2005 joints examination report prepared about 10 days later notes the Veteran denied use of any assistive devices. He reported taking Tramadol and Naproxen for symptom relief. The examiner noted examination revealed no inflammatory arthritis or ankylosis, and no lumbar spasm. An October 2005 chiropractic entry notes the Veteran's low back was positive for significant spasms and, in light of his long-term complaints of chronic low back pain, he was referred to a VA chiropractor. A November 2005 chiro entry notes the Veteran's complaints of low back pain that radiated into his right lower extremity. Examination, however, revealed negative straight leg raising, and no subjective paresthesia or myotomal deficit. Reflexes were 2+. A December 2005 MRI examination report notes an MRI examination showed a mild central disc herniation at L4-5 but no evidence of nerve pinching. Physical examination revealed no spasm. A March 2006 rheumatology clinic entry notes examination revealed minimal tenderness of the lumbar spine. In sum, the preponderance of the evidence shows no evidence of a moderate limitation of lumbar motion under Diagnostic Code 5292, or lumbosacral strain with muscle spasm on extreme forward bending under Diagnostic Code 5295, under the pre- September 2003 rating criteria. Neither does the post- September 2003 evidence show a limitation of thoracolumbar flexion less than 61 degrees or spasms of sufficient severity to cause abnormal gait or spinal contour, either of which would warrant a 20 percent rating under the General Formula. The Board also notes the absence of objective findings of an additional loss of range of motion due to pain, weakness, or fatigue. See 38 C.F.R. §§ 4.40, 4.45. Another facet of the Veteran's disability is the fact that, as noted earlier, he is service connected and compensated for joint arthralgias due to an undiagnosed illness. VA treatment records indicate the vast majority of his chronic pain, to include of a degree that it awakens him at night, is due to that symptomatology. Thus, the Board is constrained to comply with 38 C.F.R. § 4.14, that is to say, the Veteran may not be compensated more than once for the same symptomatology. In any event, as found, the Board finds the Veteran's low back injury residuals most nearly approximated a 10 percent rating for the period prior to January 1, 2007. 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2009); § 4.71a, Diagnostic Code 5295 (2002). As noted earlier, the Veteran referred to the days he missed work due to his pain. On the other hand, examination reports note the Veteran's report that his job is not physically demanding, and his chronic pain had not significantly impacted his ability to do his job. There also is the matter, as discussed earlier, that the majority of the Veteran's various joint pains are due to arthralgia. In any event, out of an abundance of caution, the Board finds he raised the propriety of extraschedular consideration, which the RO found not warranted. Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). In exceptional cases, where the rating schedule is deemed 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 applicable criteria, an extraschedular 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). The first step in the extraschedular analysis is whether the Veteran's disability is exceptional. If not, referral for extraschedular consideration is not indicated. Id. The Board finds the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. His disability picture is contemplated by the rating schedule, as the very symptoms manifested by his low back injury residuals and discussed above are included in the schedular rating criteria. In light of these factors, his disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). Thus, the currently assigned 10 percent schedular rating already adequately addresses, as far as can practicably be determined, the average impairment of earning capacity due to the Veteran's service-connected low back injury residuals prior to January 1, 2007. See 38 C.F.R. § 4.1. In the absence of an exceptional disability picture, the Board finds no basis on which to disagree with the RO's assessment that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial evaluation higher than 10 percent for residuals of low back injury, strain, and sacroilitis, for the period prior to January 1, 2007, is denied. REMAND The Veteran's treatment records through December 2006 are in the claims file. He noted at the hearing that he last saw his VA physician in February 2009, and that his symptoms have increased in severity. The Veteran is entitled to a new VA examination where there is evidence that the service- connected disorder has worsened. Snuffer v. Gober, 10 Vet. App. 400 (1997). He is competent to describe his symptomatology and severity. See 38 C.F.R. § 3.159(a)(2). Thus, he will be afforded another examination. As noted a number of times in the decision above, the Veteran is service connected for arthralgias due to an undiagnosed illness. His March 2004 claim asserted that his symptoms met the criteria for fibromyalgia, and he requested an increased rating under 38 C.F.R. § 4.71a, Diagnostic Code 5005, which rates that disorder. The September 2004 rating decision granted entitlement to an increased rating for his undiagnosed illness and denied entitlement to service connection for fibromyalgia. An August 2005 examination report notes the examiner opined that no evidence of fibromyalgia was found. The examiner noted that a number of the Veteran's claimed symptoms manifested prior to the Persian Gulf War which, he noted, did not comply with one of the criteria needed to find an undiagnosed illness. The Veteran, however, is also seeking entitlement to service connection on a direct basis. See 38 C.F.R. § 3.303 (2009). Moreover, a June 2004 examination diagnosed the Veteran with fibromyalgia, and the 2005 examiner neither noted nor commented on the 2004 examination findings. This must be clarified. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated the Veteran for low back injury residuals and joint pains since January 2007. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. After the above is complete, regardless of whether additional records are obtained, the AMC/RO will arrange a VA examination for the Veteran to determine the current severity of his low back injury residuals. All indicated diagnostic tests should be conducted. The claims folder and a copy of this remand should be made available to the examiner for review as part of the examination. The examiner is asked to specifically distinguish and note the Veteran's claimed chronic back pain that is due to his low back injury residuals and that which is due to arthralgia. 3. The AMC/RO shall refer the claims file to the examiner who conducted the August 2005 fibromyalgia examination, or an equally qualified physician. Ask the physician to review the claims file and this remand and opine whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's objective symptoms meet the criteria for a diagnosis of fibromyalgia. If so, is there at least a 50-50 probability it is related to symptoms manifested during his active service, or is otherwise related to his active service. Any opinion should be fully explained and the rationale provided. The examiner should specifically note and comment on the June 2004 diagnosis of fibromyalgia. If an examiner other than the one who conducted the August 2005 VA fibromyalgia examination reviews the claims file, he/she is asked to comment on both examinations and diagnoses. Any opinion should be fully explained and the rationale provided. In preparing the requested opinions, the examining physician(s) must note the following: ? "It is due to" means 100 percent assurance of relationship. ? "It is at least as likely as not" means 50 percent or more. ? "It is not at least as likely as not" means less than a 50 percent chance. ? "It is not due to" means 100 percent assurance of non relationship. The examiner is further advised that the term "at least as likely as not" or a "50- 50 probability" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the examiner is unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining physician must specifically explain why the causation of any diagnosed fibromyalgia is unknowable. The examiner is asked to attach a copy of his/her curriculum vitae to the report. 4. The AMC/RO will advise the Veteran that it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event he does not report for any ordered examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The AMC/RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If the report is deficient in any manner, AMC/RO must implement corrective procedures at once. 6. Then review the Veteran's claims de novo in light of the additional evidence obtained. If either claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs