Citation Nr: 1322975 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-13 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher initial evaluation for low back disability with arthritis L4-5, currently evaluated as 40 percent disabling. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran reportedly served on active duty from September 1974 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). A June 2011 Board decision dismissed the issues of an increased rating for bronchitis and service connection for sinus disability with rhinitis, for left ankle, knee, and great toe disability, for bilateral pes planus, and for bilateral hearing loss. It remanded the issues of an increased rating for low back disability and service connection for fibromyalgia, headaches, anxiety disorder, and PTSD for further development. In October 2012, the RO granted service connection for anxiety disorder with PTSD features. Additionally, a total rating based on individual unemployability (TDIU) was granted. The Veteran had been represented by Vietnam Veterans of America previously, but Disabled American Veterans became her representative in 2012. FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of her entire thoracolumbar spine, nor does she have incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months, nor does she have related lower extremity neuropathy. 2. The Veteran's current fibromyalgia disorder was not manifest in service and is unrelated to service. 3. The Veteran's current migraine headache disorder was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for low back disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5299-5237 (2012). 2. The criteria for service connection for fibromyalgia are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for headaches are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in May 2006, March 2007, and August 2007. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations in August 2006, June 2007, and March 2012; obtained medical opinions as to etiology and severity of disability; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's June 2011 remand by examining the Veteran as indicated and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. VA has considered all evidence of record, including the records currently found on Virtual VA (VA's electronic data storage system). Higher rating for low back The Veteran appeals the RO's assignment of a 40 percent rating for her service-connected low back condition, which is currently rated under Diagnostic Code 5299-5237. Diagnostic Code 5237 is for lumbosacral or cervical strain. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: 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 Unfavorable ankylosis of the entire spine.....................................................100 Unfavorable ankylosis of the entire thoracolumbar spine ..............................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.........................................................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine....................................................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis............................................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height...............................................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The formula for rating intervertebral disc syndrome based on incapacitating episodes provides: With incapacitating episodes having a total duration of at least six weeks during the past 12 months.......................................................................................................60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.............................................................40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months...........................................................20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months............................................................10 Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). To obtain a 50 percent rating for lumbosacral strain under 38 C.F.R. § 4.71a's General Rating Formula for Diseases and Injuries of the Spine, the evidence would have to show unfavorable ankylosis of the entire thoracolumbar spine. On VA examination in September 2006, the Veteran flexed her back to 30 degrees. She extended it to 10 degrees, laterally flexed it to 20 degrees bilaterally, and laterally rotated it to 35 degrees bilaterally, with pain on motion. No ankylosis was found on VA X-rays in September 2006. On VA examination in March 2012, forward flexion of the Veteran's thoracolumbar spine was to 90 degrees or greater, with evidence of painful motion beginning at 30 degrees. Lateral flexion and rotation were to 20 degrees bilaterally. Based on this evidence, the Board concludes that the Veteran does not have or nearly approximate unfavorable ankylosis of her entire thoracolumbar spine. Clearly, instead, she retains a quite significant range of motion and no ankylosis is present. The Board concludes that the criteria for a 50 percent rating under the General Formula are not met or nearly approximated, even when 38 C.F.R. §§ 4.40, 4.45 are considered. As far as a rating in excess of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or separate ratings for neuropathy of the Veteran's lower extremities under 38 C.F.R. § 4.124a is concerned, the preponderance of the evidence indicates that the Veteran does not have intervertebral disc syndrome or neuropathy related to her low back condition. Accordingly, she could not have intervertebral disc syndrome necessitating 6 weeks per year of physician prescribed bedrest and so cannot be assigned a 60 percent rating under that formula; and she cannot be assigned separate ratings for neuropathy of either extremity under 38 C.F.R. § 4.124a. The Board had remanded in June 2011, specifically to have an examiner report any associated neurological symptoms as well as the frequency and duration of any incapacitating episodes over the past 12 months. On examination in March 2012, the Veteran had 5/5 muscle strength in the lower extremities which were tested, and no muscular atrophy. Her reflexes were 2+ or normal at the knees and ankles, sensory examination was normal in the thighs, legs, ankles, and toes, except for decreased sensation in the left lower leg/ankle, straight leg raising test was negative, and the examiner indicated that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. He indicated that neither side was affected by radiculopathy and that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition. He indicated that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine. Accordingly, since the evidence shows no intervertebral disc syndrome, radiculopathy, or associated lower extremity neuropathy, a higher rating cannot be assigned under either the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or based on neurological impairment under 38 C.F.R. § 4.124a. In light of the above, a schedular rating in excess of 40 percent is not warranted for low back condition. Extra Schedular Considerations The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disability reasonably describe her disability level and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, TDIU was granted by rating decision in October 2012. Service connection The remaining issues before the Board involve claims of entitlement to service connection for fibromyalgia and headaches. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic disease of the nervous system (such as migraine headaches), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Fibromyalgia The Veteran seeks service connection for fibromyalgia, arguing in February 2007 that in-service symptoms of achy pain and tenderness, stiffness, and pain in muscles were representative of it. A February 1975 service treatment record documents mental health consultation for complaints of pain on numerous occasions. References to somatic complaints and contributing psychophysiological effect were made. Also, among the service treatment records are a July 1975 service treatment record showing that there had been multiple orthopedic visits for no significant orthopedic problem. VA medical records from 2006 and 2007 show that the Veteran was followed with a diagnosis of fibromyalgia syndrome. In January 2007, she reported fibromyalgia syndrome since 1984. On VA examination in June 2007, it was reported that fibromyalgia was diagnosed by a rheumatologist in 2006. However, the examiner reviewed the Veteran's claims folder including the Veteran's service treatment records, made notations regarding a number of in-service symptoms, and indicated that it would be purely speculative on his part to say that the Veteran's in-service symptoms were related to her current fibromyalgia. A private physician indicated in June 2007 that the Veteran had a number of problems that were in the borderline category, including fibromyalgia. The Board remanded the issue to the RO in June 2011 for a VA examination on the matter of whether the Veteran has fibromyalgia, and if so, whether it is related to service. On VA examination in March 2012, the Veteran's claims folder was reviewed, and she was examined, and the examiner indicated that it was at least as likely as not that she has fibromyalgia. He noted that it was diagnosed in 2006. He noted that it is also known as fibrositis or primary fibromyalgia syndrome. The examiner found that it was less likely as not that the Veteran's fibromyalgia was related to service. Reasons provided after the claims folder was reviewed included that she had been diagnosed with fibromyalgia in 2006. The examiner indicated that he agreed with that assessment. As to service connection, there was absolutely no indication in the Veteran's service treatment records of any fibrositis (as it had been known in the 1970's) or similar condition. The Veteran had had frequent clinic visits during her short period of service, often for vague musculoskeletal and other somatic complaints, for which no etiology could be found. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current fibromyalgia. The preponderance of the evidence indicates that it was not manifest in service, and that instead, it was first manifest in 2006, which was many years after service. No medical evidence relates it to service, the VA examiner in June 2007 indicated that it would be pure speculation to say it was related to service, and the examiner in March 2012 indicated that it was less likely than not related to service, having considered service symptoms in making that opinion. The Board acknowledges certain assertions by the Veteran to the effect that rheumatoid arthritis had been diagnosed in the service. However, her assertions in this regard are not credible as they are contradicted by service records which show no diagnosis of physical disease. The Board recognizes that the Veteran may have believed she was suffering physical symptoms, but it appears that the Veteran's mental health disorder (for which service connection has already been established) may have been the underlying reason for many of the perceived physical complaints. The Board places more probative weight on the findings and opinions of trained medical personnel who examined the Veteran during service and in connection with examinations conducted in association with this appeal. The preponderance of the evidence is against a finding that the fibromyalgia manifested during service or for a number of years thereafter. Headaches Service treatment records report headache complaints on a number of occasions. However, a number of these were associated with physical illness such as flu syndrome and viral syndrome. In a May 1976 report of medical history, at the time of the Veteran's service discharge, she denied frequent or severe headaches. On VA evaluation in May 2006, the Veteran denied any headaches. However, on private evaluation in July 2008, the Veteran reported headaches which had started in 1974/75. Later in July 2008, a private physician reported an impression of chronic headaches which were probably migraine headaches. The Board ordered a VA examination in June 2011, on the matter of whether it was at least as likely as not that any current headaches disability is related to service, including the treatment reported in July 1975. On VA examination in March 2012, the Veteran's claims folder was reviewed and the Veteran was noted to state that she began having migraine headaches while in service in 1975, and that she began taking over the counter medication for them and was then prescribed Topamax in 2007 after a seizure. The examiner indicated that it was not at least as likely as not that the Veteran's headaches are related to service. He noted that the Veteran's service treatment records contained 2 entries in 1974 and 1975 for headaches accompanying other medical symptoms, and that nowhere did they state that the Veteran had migraine headaches. Based on the evidence, the Board concludes that service connection is not warranted for headaches. The preponderance of the evidence indicates that the Veteran's current headaches are migraine headaches, and that no migraine headaches were manifest in service or to a degree of 10 percent within one year of separation, and that they are unrelated to service. Service treatment records are silent for reference for migraine headaches, and they were first suspected to be present many years after service, in 2008. The examiner in 2012 indicated that they were not related to service, after considering the records, the Veteran's reports of service onset, and the examination findings. There is no supporting evidence of headaches for many years after service. To the extent that the Veteran may be asserting that she has suffered from headaches since service, such assertions are of diminished credibility in light of the overall evidence of record. Again, headaches noted during service appear to be associated with other physical illness. The Veteran denied headaches at the time of discharge, and there is no supporting evidence of headaches continuing after service. The preponderance of the evidence is against greater benefits that those indicated above and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER A rating in excess of 40 percent for low back disability is not warranted. Service connection for fibromyalgia is not warranted. Service connection for headaches is not warranted. The appeal is denied as to all issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs