Citation Nr: 1339734 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 07-31 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to a higher initial disability evaluation for fibromyalgia, currently rated as 20 percent disabling prior to December 29, 2010 and from 40 percent disabling from that date. 2. Entitlement to an initial disability evaluation in excess of 10 percent for scars, residuals of cesarean section. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Winston -Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In a May 2006 rating decision, the RO denied entitlement to service connection for pelvic adhesions and granted entitlement to service connection for scars, residuals of caesarian section, assigning a 10 percent disability evaluation. A June 2006 rating decision granted entitlement to service connection for fibromyalgia with symptoms of depression, abnormal sleep, and migraines and assigned a 20 percent disability evaluation. A hearing on these matters was held before the undersigned Veterans Law Judge sitting at the RO on February 26, 2010. A copy of the hearing transcript has been associated with the file. In February 2010, the Board remanded the claims for further development. In a May 2011 rating decision, the Appeals Management Center granted entitlement to service connection for residuals of pelvic adhesion and assigned an evaluation of 10 percent, effective December 1, 2005. As this represents a full grant of the benefit sought, this matter is no longer on appeal. At the same time, the AMC assigned separate disability evaluations of 0 percent for migraine headaches and 70 percent for recurrent major depressive disorder without psychosis, effective December 1, 2005. The AMC determined that the current rating assigned for fibromyalgia was warranted without consideration of the Veteran's symptoms of depression and headaches. Furthermore, the AMC indicated that the evidence suggested that the Veteran's depression was related to the death of her first child during service in 1997, her migraines were formally diagnosed in September 1986 long before she was diagnosed with fibromyalgia, and that her fibromyalgia aggravated such conditions. In a December 2011 rating decision, the AMC increased the rating assigned for fibromyalgia to 40 percent disabling, effective December 29, 2010. As the 40 percent rating does not represent the highest possible benefit, this matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). At the most recent rating action, it was noted that the Veteran was no longer working and it was noted that a form was being sent to her to facilitate her application for TDIU. In a September 2013 Written Brief Presentation, the Veteran's representative reported that the Veteran's more recent jobs as a part-time cashier at Wal-Mart or full-time job filling boxes at a temp agency (with significant absences) were beneath her normal abilities and skills as medical laboratory technician. The matter of entitlement to TDIU is referred to the RO for action deemed appropriate. FINDING OF FACT 1. Throughout the pendency of the appeal, the Veteran's service-connected fibromyalgia is manifested by widespread musculoskeletal pain and tender points that are nearly constant and refractory to therapy. 2. The Veteran's scars, residuals of cesarean section are exhibited by two superficial, tender, and painful scars in close proximity that are no larger than 12cm in length and.5 cm in width (for the lower abdomen, vertical midline scar) and 18.5 cm in length and .25 cm in width (for the bikini line horizontal cesarean scar) and did not result in limitation of motion or loss of function, underlying soft tissue damage, or skin ulceration or breakdown over the scar CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent disability rating, but no higher, for fibromyalgia have been met for the entire appeal period, including the period prior to December 29, 2010. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-14, 4.71a, Diagnostic Code 5025 (2013). 2. The criteria for an initial rating in excess of 10 percent rating for scars, residuals of cesarean section have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes (DCs) 7800-7805 (2008, 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appeal for higher initial ratings for fibromyalgia and residual scars of cesarean section arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained all of the Veteran's service treatment records as well as identified relevant post-service VA treatment records. The Veteran was provided with multiple VA examinations. The January 2006, July 2008, November 2010, and September 2011 VA examination reports are adequate for the purposes of adjudication. There is no indication that the service-connected disabilities on appeal have worsened since the date of the most recent examination, and hence an additional examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The United States Court of Appeals for Veterans Claims has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Board hearing the undersigned identified the issues, inquired about her employment, and asked about her treatment providers in order to ascertain whether there was additional evidence she could submit. Hence, the Bryant duties were met. Additionally, in October 2010, the Board remanded the claims, in part, to obtain private treatment records from Lawson Support Services, which were identified during her Travel Board hearing. In October 2010 correspondence, the Veteran was requested to complete the Authorization and Consent to Release Information Form, for Lawson Support Services, so that VA may obtain the treatment information. She was also notified that she may submit the information herself. The Veteran did not respond. The October 2010 VA correspondence reflects substantial compliance with the Board's November 2010 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). The appeal is thus ready to be considered on the merits. II. Legal Criteria & Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Fibromyalgia The Veteran contends that her fibromyalgia is more severe than is reflected by her current disability rating. The Veteran's fibromyalgia is currently evaluated as 20 percent disabling under Diagnostic Code 5025 prior to December 29, 2010 and 40 percent disabling from that date. Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with 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, is to be rated 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and a maximum 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5025. In a January 2006 VA general examination, revealed that the Veteran developed pain in the lumbar area, buttocks, and both feet. The pain on both thighs and her back lacked any specific trigger. She had unpredictable flare-ups, which varied in intensity. She reported that fare-ups occurred 2 to 3 times per month and lasted from a few days but most of the time, up to a week. On physical examination, the thighs were slightly tender on pressure as well as the buttocks. There was also tenderness on palpation of the lumbar spine. There was tenderness on palpation of the antecubital area of the left elbow. Her main complaint was related to pressure of the area rather than motion of the joint. There was tenderness on minimal palpation of the spine. In May 2006, the VA examiner added that the Veteran's fibromyalgia was currently active with episodic flares or exacerbations. During flare-ups, she was limited in her work and activities. An August 2007 VA pain assessment revealed that the Veteran had pain or discomfort in her hips, arms, and right side of the neck. She had intermittent burning, cramping, and aching. She reported that the pain interfered with general activity, mood, walking ability, normal work, relations with other people, sleep, and enjoyment of life. On July 2008 VA examination, the Veteran's current symptoms included trigger points, unexplained fatigue, sleep disturbance, paresthesias, headache, alternating diarrhea and constipation, abdominal cramps, abdominal bloating, depression, musculoskeletal symptoms, and sometimes an overactive bladder. She had widespread musculoskeletal pain in the bilateral arms, legs, and back. There was musculoskeletal pain on both the right and left sides of the body, both above and below that waist, and it affected both the axial skeleton and the extremities. On examination, there were tender points located in the knees and left sacroiliac area. There was a moderate effect on chores, shopping, and exercise. It was estimated that the disability had a significant effect on the Veteran's employment (she had missed 5 days from work over the past year because of fibromyalgia). VA treatment records included an April 30, 2010 pain assessment, which revealed the Veteran had pain or discomfort in her lower back that was constant. She had limited mobility related to the pain. On December 29, 2010 pain assessment, she reported that she had constant pain or discomfort in her hips and legs. The Veteran underwent VA examination in September 2011. She complained of all over tendon-type pain, pain in both hips, pain down the left leg as well as left shoulder, left tricep, and left jaw pain. She noticed that if she didn't use the right pillow, then she had neck pain. Her current symptoms included trigger points, unexplained fatigue, sleep disturbance, headache, alternating diarrhea and constipation, abdominal cramps, depression, and musculoskeletal symptoms. She also sometimes had an overactive bladder. She reported that precipitating/exacerbating factors, included if something sudden happened. She stated that if she could get 10 to 12 hours of sleep and a hot bath, she felt better. She had widespread musculoskeletal pain in the neck, left arm, left leg, posterior neck, left shoulder, back of upper left arm, back of both hips, and shooting pain down the back of the left leg ending at the left knee. There was musculoskeletal pain on both the right and left sides of the body, both above and below the waist and it affected both the axial skeleton and the extremities. On examination, there were right sided tender trigger points at the anterior aspect of the intertransverse space at C5-C7 and greater trochanters, posterior to the trochanteric prominence. There were left sided tender points to the lateral epicondyle, 2 cm distal to the epicondyle, greater trochanters posterior to the trochanteric prominence, knee at the medial fat pad proximal to the joint line and at the left S1 area. Overall, the evidence indicated that the Veteran's symptoms of fibromyalgia were constant or nearly constant. Furthermore, the medical evidence of record demonstrates that the Veteran's fibromyalgia is refractory to therapy. In this regard on January 2006 VA general examination, the examiner noted that the Veteran had been on several medications being offered at each visit with seemingly no effect on her fibromyalgia. She was tried on Tramadol, Vioxx, Amitriptyline, and Cymbalta. She underwent cognitive development therapy, which did not help. Occasionally, Tylenol would help, but at other times no medication could help the pain. An August 2007 VA pain assessment revealed that she treated the symptoms with Tylenol up to three times a day; however, she did not provide an answer when asked to report methods used that were effective. In June 2008 correspondence, she reported that she found no successful treatments for her fibromyalgia. She stated that she did not have days without pain and most days her pain reached a level 7 or greater. On July 2008 VA examination, she reported that she used hydrocodone most days and that continuous medication was required for control of her symptoms. Although precipitating or exacerbating factors included cold or damp weather, or sudden movements and hot baths alleviated the symptoms, the examiner reported the Veteran's symptoms as constant. An April 2010 VA pain assessment revealed that the Veteran took oxycodone four times a day. While the record noted that she was able to function effectively on the current treatment plan, she requested something for break through pain. Also, in an April 2010 addendum, a physician reported that there was poor control of fibromyalgia pain and Gabapentin was increased from 300 mg to 600 mg. On December 29, 2010 pain assessment, she reported that she treated the pain with oxycodone; however, she did not provide an answer when asked what methods used were effective. She stated that she was able to function effectively on the current treatment plan. On September 2011 VA examination, the examiner noted that there was a fair response to treatment. However, the Veteran reported that she was prescribed Lycra 75 mg and two weeks later the dosage was increased to 150 mg. She stated that as the increased dosage did not work, she no longer took the medication. She reported that she was also taking Gabatin, but that it was not working so far. Based on the foregoing, the Board finds that the Veteran's fibromyalgia more closely approximates a 40 percent disability rating, which is the maximum schedular rating under Diagnostic Code 5025, during the entire appeals period, including the period prior to December 29, 2010. In this case the Veteran is in receipt of a 40 percent evaluation. Therefore, she is already receiving the maximum disability evaluation permitted under Diagnostic Code 5025. The Board further notes that there are no other applicable codes that would permit for a disability rating in excess of 40 percent for the Veteran's fibromyalgia. Additionally, because Diagnostic Code 5025 is not based on limitation of motion (where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply; see Johnson v. Brown, 9 Vet. App. 7, 11 (1996).), and as the Veteran is receiving the maximum schedular rating available under Diagnostic Code 5025 (functional loss is not applicable to increase the rating where a disability is rated at the maximum level provided by the diagnostic code under which it is rated; see VAOPGCPREC 36-97), a disability rating higher than 40 percent for fibromyalgia based on functional loss due to pain pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. In sum, as the Veteran is in receipt of the maximum evaluation under the diagnostic criteria for fibromyalgia, a higher schedular evaluation is not available. The Board notes that separate ratings have already been assigned for headaches and major depressive disorder. The Veteran's symptoms of fibromyalgia meet the criteria for the assignment of the maximum 40 percent rating for fibromyalgia and are separate and distinct from his service connected headaches and major depressive disorder. To the extent that her headaches and major depressive disorder have been rated as separate disabilities, they are already addressed in separate disability ratings that are not on appeal. Accordingly, there is no further symptomatology to contemplate in connection with these issues. B. Scars, Residuals of Cesarean Section The residual scars of cesarean section are currently rated under 38 C.F.R. § 4.118, DC 7804. The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As her claim for service connection was received in November 2005, the amendments are not applicable in this instance. A January 2006 VA examination revealed the presence of two surgical scars resulting for cesarean section. There was a depressed, vertical scar measuring 11 cm in length and .5 cm in width, nontender on the mid-abdomen. On standing this scar pulled and was fixed to the underlying structure on all levels. On the supine position, the scar was more flexible and it remained nontender. On the suprapubic area, there was a horizontal cesarean scar which was 18.5 cm with very minimal depression and minimal width of .25 cm. The right end of the scar was slightly tender to palpation. There was no skin inflammation or ulceration. No discharge was noted. The scar was slightly fixed (about 1/3 of the scar laterally) to the underlying tissue, but was more flexible than the vertical scar. There was no loss of muscle tissue noted on palpation. There was no tenderness on palpation of all quadrants. There were no masses, ventral hernia, or guarding or rebounding. On July 2008 VA examination, the examiner noted that the Veteran had two scars from cesarean sections and related complications. She had complaints of pain, burning and pulling at the scar site. An examination revealed a scar in the lower abdomen, vertical, midline that measured 12 cm in length and .5 cm in width. There was tenderness on palpation. There was no adherence to underlying tissue, limitation of motion or loss of function, underlying soft tissue damage, or skin ulceration or breakdown over the scar. There was a second scar in the bikini line that was horizontal. The scar measured 12 cm in length and .5 cm in width. There was tenderness on palpation. There was slight adherence to underlying tissue. There was no limitation of motion or loss of function, underlying soft tissue damage, or skin ulceration or breakdown over the scar. A November 2010 VA examination revealed a scar in the lower abdomen, vertical midline, and measured 12 cm in length and .5 cm in width. There is also a bikini line, horizontal scar measuring 12 cm in length and .5 cm in width. Neither scar demonstrated objective evidence of painful tenderness, adherence, underlying tissue loss, or ulceration or breakdown of the skin. The examiner found that neither scar results in limitation of motion or loss of function. Under the pre-amended version of Diagnostic Code 7804, a 10 percent evaluation is assigned where the evidence shows scars that are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Therefore, the residual scars of the cesarean section warrant the assigned the maximum evaluation under Diagnostic Code 7804 throughout the appeal period. In regards to whether a rating in excess of 10 percent is warranted, Diagnostic Codes 7802 and 7803 also only provide for a maximum 10 percent evaluation for scars. Also, as the service-connected residual scars of the cesarean section comprised of only two scars in a close area, there is no basis to separately rate as would be done for scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, under Diagnostic Code 7802, Note (1). Diagnostic Code 7800, provides higher ratings for scars of the head, face, or neck; but as the Veteran's residual scars of the cesarean section are not on those parts of the body, Diagnostic Code 7800 would not be applicable. Under the pre-amended Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas exceeding 6 square inches (39 square cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas exceeding 12 square inches (77 square cm.). A 30 percent disability evaluation is warranted when it involves an area or areas exceeding 72 square inches (465 square cm.). A 40 percent evaluation is warranted when it involves an area or areas exceeding 144 square inches (929 square cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. Thus, in order for the Veteran to get an increased evaluation for her residual scars of the cesarean section under the old regulations, the evidence must show that his scar exceeds at least 12 square inches or 77 square cm and was deep or caused limited motion. On January 2006 VA examination, on standing the vertical scar pulled and was fixed to the underlying structure on all level. The horizontal scar was slightly fixed (about 1/3 of the scar laterally) to the underlying tissue and revealed tenderness to palpation. On July 2008 VA examination, she had complaints of pain, burning and pulling at the scar site. There was tenderness to palpation on both scars, and the horizontal scar showed evidence of slight adherence to underlying tissue. On November 2010 VA examination, the examiner reported that neither scar demonstrated objective evidence of adherence. The Veteran's complaints and the inconsistent findings as to whether or not there was adherence to the underlying tissue, have been considered. However, the evidence has consistently shown two scars that are superficial and tender with no evidence of underlying tissue loss (i.e. a deep scar), or limitation of motion or function. It has neither been alleged nor shown that the affected area approximated at least 12 square inches or at least 77 square centimeters to warrant rating higher than 10 percent under Diagnostic Code 7801. During the appeal period, the largest the lower abdomen, vertical midline scar measured was 12 cm in length and .5 cm in width. See July 2008 and November 2010 VA examination reports. The largest the bikini line horizontal cesarean scar measured was 18.5 cm with very minimal depression and minimal width of .25 cm. See January 2006 VA examination report. Overall, the subjective and objective evidence does not show the severity required for a higher schedular rating based on the applicable symptomatology. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign scars, residuals of caesarian section a rating in excess of 10 percent at any point throughout the appeal. Extraschedular Rating Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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 question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected fibromyalgia and residual scars of cesarean section. All of the symptoms experienced by the Veteran described above are contemplated by the appropriate diagnostic criteria as set forth above. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial 40 percent disability rating, but no more, for fibromyalgia is allowed for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 10 percent for scars, residuals of caesarian section is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs