Citation Nr: 1304095 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-02 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating greater than 40 percent for fibromyalgia. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from September 1986 to December 1990 in the United States Navy, October 2001 to January 2002 in the United States Air Force, and February 2003 to September 2004 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded this claim in February 2012 for further development. The case has since been returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated from 2007 to 2012. These records are not present in the claims folder. In any event, in the October 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records in the Virtual VA system. Thus, there is no prejudice to the Veteran in considering this evidence. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2012); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Following the February 2012 remand, the RO provided the Veteran VA examination in February 2012 VA in order to ascertain the current severity and manifestations of the Veteran's fibromyalgia. The Veteran's service-connected fibromyalgia is rated as 40 percent disabling under Diagnostic Code 5025, fibromyalgia (fibrositis, primary fibromyalgia syndrome). 38 C.F.R. § 4.71a (2012). Diagnostic Code 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. A note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. Under Diagnostic Code 5025, a maximum rating of 40 percent rating is warranted for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. 38 C.F.R. § 4.71a. Thus, the 40 percent rating assigned for the Veteran's fibromyalgia is the maximum schedular rating available under that diagnostic code. In the present case, the Veteran is requesting (1) an extraschedular rating above 40 percent for his service-connected fibromyalgia pursuant to § 3.321(b)(1); or, in the alternative, (2) separate disability ratings for each distinct condition / manifestation arising from his service-connected fibromyalgia. See December 2012 and December 2011 Informal Hearing Presentations (IHPs). Specifically, the Veteran contends that he is entitled to separate disability ratings for multiple body systems affected by his service-connected fibromyalgia disability - that is, vitamin B12 deficiency with anemia, polyneuropathy to the feet and hands, chronic diarrhea, ?gastroesophageal reflux disease (GERD), depression with memory/cognitive impairment, cervical and lumbar spine pain, and migraine headaches. See February 2012 VA examination; April 2007 VA examinations; private and VA treatment reports dated from 2004 to 2012. The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). However, when a Veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate. Id. When rating service-connected disabilities, such as fibromyalgia that are associated with the Veteran's Persian Gulf service, the VA Adjudication and Procedures Manual states that the decision to rate multiple symptoms or signs of a qualifying chronic illness together as a single issue or separately as multiple issues depends on the outcome most favorable to the Veteran. Although rating multiple manifestations under a single body system will in most cases provide the maximum benefit, VA must consider that symptoms affecting fundamentally different body systems may clearly warrant separate ratings. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section D, Topic 14, Block a (September 15, 2011). The evaluation of the separate manifestations of the Veteran's fibromyalgia disability, as well as the assignment of the appropriate diagnostic codes, is a determination for the RO in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a Veteran is prejudiced by a lack of RO consideration of the merits of a claim or matter). Therefore, a remand is required for the RO to determine the separate diagnostic codes applicable for the different manifestations of the Veteran's fibromyalgia. Then, the RO should determine if combining the separate ratings for different manifestations of the Veteran's fibromyalgia provides a higher evaluation than the current 40 percent evaluation assigned under Diagnostic Code 5025. The RO should choose the outcome most favorable to the Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Incidentally, the Veteran already has been assigned a separate 50 percent rating for obstructive sleep apnea / chronic fatigue syndrome under Diagnostic Code 6847, sleep apnea syndromes. 38 C.F.R. § 4.97 (2012). At present, this issue is not on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should determine the separate diagnostic codes for the different manifestations of the Veteran's fibromyalgia based on the rating criteria that most accurately reflect the Veteran's symptoms. That is, after conducting any necessary development, the RO/AMC should determine the most appropriate diagnostic codes for the following manifestations of the Veteran's fibromyalgia disability: (a) Vitamin B12 deficiency with anemia; (b) Polyneuropathy to the feet and hands; (c) Diarrhea / ?irritable bowel syndrome ((IBS), (d) Gastroesophageal reflux disease (GERD); (e) Depression with memory / cognitive impairment; (f) Cervical spine, lumbar spine, bilateral shoulder, bilateral elbow, and bilateral knee pain (g) Migraine headaches. 2. Thereafter, the RO/AMC should consider all of the evidence of record, and readjudicate the increased rating issue for fibromyalgia. In particular, the RO/AMC should determine if combining the separate ratings for different manifestations of the Veteran's fibromyalgia disability provides a higher evaluation than the current 40 percent evaluation assigned under Diagnostic Code 5025. The RO/AMC should choose the outcome most favorable to the Veteran. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).