Citation Nr: 1343252	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  13-21 575A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

1.  Entitlement to an initial disability rating greater than 10 percent for fibromyalgia/ myalgia.  

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 2009 to September 2010.
	
This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida.  

All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed and considered.     

In the August 2013 Form 9 Appeal, the Veteran claimed entitlement to a TDIU in conjunction with the increased initial rating claim on appeal.  Under Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board has jurisdiction over the matter.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's service-connected fibromyalgia/ myalgia is manifested by sleep problems and constant pain in the back, neck, shoulders, knees, and wrist that is refractory to therapy.  

2.  The evidence does not show that the Veteran's service-connected fibromyalgia/ myalgia is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.




CONCLUSION OF LAW

Entitlement to an initial disability rating of 40 percent for the service-connected fibromyalgia/ myalgia is warranted.  38 U.S.C.A. §§ 1155, 5107(b) (West Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5025 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties to notify and assist the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A; 5107(a); 38 C.F.R. 
§ 3.159 (2013).  

The RO provided pre-adjudication notice letters in April 2011 and April 2010 that discussed the evidence necessary to support the underlying claim for service connection and the manner with which VA determines disability ratings and effective dates.  Because service connection has been granted and an initial disability rating and effective date have been assigned, the purpose for serving notice has been fulfilled and further VCAA notice is unnecessary.  Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006).

Under the duty to assist, service treatment records, post-service VA treatment records, and lay statements have been associated with the file.  Also, the Veteran was afforded VA examinations in June 2011 and April 2010 that are adequate when considered in conjunction with the other evidence for the Board to make an informed decision.  Further, the Board is granting the maximum rating under Diagnostic Code 5025 for the entire appeal period, as discussed below.  Thus, although the Veteran did not authorize the release of her physical therapy records and private treatment records, any error as to the duty to assist is harmless.  

For these reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.

Rating Principles

In evaluating the severity of a certain disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

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 rated as follows: 10 percent disabling when the disability requires continuous medication for control; 20 percent disabling when symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time; and a maximum of 40 percent disabling for symptoms that are constant, or nearly so, and are refractory to therapy.  38 C.F.R. § 4.71a, Diagnostic Code 5025.  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.  Id.  


Analysis

The Veteran is currently assigned a 10 percent initial disability rating under Diagnostic Code 5025.  

The Veteran contends that a greater than 10 percent disability rating is warranted.  She reports, through her representative, that her symptoms are not episodic and that she experiences them on a daily basis over her entire body.  See November 2013 representative statement.  She asserts that her pain is a constant burden on her daily life and activities.  See August 2013 Form 9 Appeal.  The Veteran states that although her medications helps to lower her pain level, there is "not a moment" that she does not suffer from "some ache, sharp jabs, or throbbing."  Id.  The Veteran also reported worsening of her symptoms due to emotional stresses.  See August 2013 Form 9 Appeal.  

Service treatment records show that the Veteran has recurrently complained of "chronic pain."  See for example March 2010 service treatment records.  She reported pain in back, shoulder, joints, and knees that causes sleep problems.  See [undated] Report of Medical Examination.  

VA treatment records in September 2012 show that the Veteran has reported constant back pain for years.  She stated that she is limited in how far she can walk with her backpack.  She also reports pain in her neck and shoulders.  On examination, the Veteran was tender to pressure in the upper back and neck.  In the April 2011 VA treatment records, the Veteran reported that she has had failed attempts at treatment including physical therapy.  She stated that she has constant dull, aching pain in her muscles diffusely that is worse in her upper back and neck but sometimes with all over aching.  She reported that aquatic therapy was ineffective and weight training caused worsening of pain.  See also June 2011 VA medical examination.  The Veteran also reported problems maintaining normal sleep due to her pain.  See also December 2011 VA treatment records.  As to her treatment plan, the Veteran declined the offer for physical therapy referral due to previous physical therapy exacerbating her pain.  In August 2011 the Veteran requested stronger more effective pain medications; however she was not prescribed stronger medication "as patients with fibromyalgia frequently do not benefit from the use of narcotics."  See August 2011 VA treatment record.  In December 2011, the Veteran reported a worsening of her symptoms, apparently due to recent emotional stresses.  See December 2011 VA treatment record; see also August 2013 Form 9 Appeal.  

The Veteran was afforded VA examinations in June 2011 and April 2010.  In June 2011, the Veteran reported that she has had constant pain that was exacerbated by physical therapy.  On examination, there were tender points on both the right and left sides.  The examiner also noted that the disability decreases mobility and causes weakness or fatigue and pain.  In April 2010, the Veteran reported daily muscle aches and joint pain and sleep problems.  On examination, there were tender points on both sides.    

As is the case here, when the evaluation of a disability depends much on the Veteran's subjective complaints and symptoms, lay evidence is of particular importance.  The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to provide evidence as to her symptoms and observations.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  Furthermore, the Board finds the Veteran credible.

The Board notes that the Veteran's symptoms are worsened due to emotional stresses, therefore satisfying one criterion for a disability rating of 20 percent under Diagnostic Code 5025.  However, the record shows that the Veteran suffers from symptoms that are constant, not "episodic" which is required for a 20 percent rating.  Further, the record shows that physical therapy does not help, but rather exacerbates, the Veteran's symptoms.  The evidence is uncontroverted and shows that the Veteran's symptoms are constant, or nearly so, and refractory to therapy.  As such, the Board finds that the Veteran's disability picture more nearly approximates the criteria required for a 40 percent disability rating under Diagnostic Code 5025.  See 38 C.F.R. § 4.7.  For these reasons, a 40 percent initial disability rating for service-connected fibromyalgia is warranted.  

The Board has considered all criteria under Diagnostic Code 5025.  As noted above, these diagnostic criteria contemplates 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.  In the present case, the Veteran, while experiencing fatigue, stiffness, sleep disturbance, and emotional stress, has denied gastrointestinal complaints or Raynaud's like symptoms.  In any event, the 40 percent disability rating assigned is the highest schedular rating available for fibromyalgia.  For this reason, the Board is unable to grant a higher schedular rating under Diagnostic Code 5025.  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  The Veteran's fibromyalgia is currently rated under Diagnostic Code 5025.  This diagnostic code is deemed by the Board to be the most appropriate because it pertains specifically to the Veteran's diagnosed disability and her symptoms.  Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 5025.

As the disability manifestations and the Veteran's statements have been consistent throughout the current appeal period, staged ratings are not appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Board notes that the Veteran's symptoms of fibromyalgia have included headaches and nausea.  While headaches are an accompanying symptom in the rating criteria for fibromyalgia, the Veteran has been rated separately under Diagnostic Code 8100 (migraine headaches).   See January 2011 rating decision.  To avoid pyramiding, the Board has not evaluated these manifestations in its evaluation under Diagnostic Code 5025.  See 38 C.F.R. § 4.14.  


Extraschedular consideration

While the Board does not have authority to grant an extraschedular rating, the Board may decide whether the claim should be referred for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1).  To find for an extraschedular rating, the case must present such an exceptional or unusual disability picture, with related factors such as marked interference with employment or necessitated frequent periods of hospitalization, so as to render the regular schedular standards impractical.  Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

Here, the rating criteria fully describe the Veteran's disability levels and symptomatology pertaining to her service-connected fibromyalgia/ myalgia.  The Veteran's fibromyalgia is manifested by sleep problems and constant pain in the back, neck, shoulders, knees, and wrist that is refractory to therapy.  The rating criteria contemplate these impairments, and therefore the assigned schedular rating is adequate.  Thus, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to an initial disability rating of 40 percent for fibromyalgia/ myalgia is granted, subject to the law and regulations governing the payment of monetary benefits.  


REMAND

During her June 2011 VA examination, the Veteran reported difficulty finding a job due to her fibromyalgia/myalgia.   The examiner observed that the Veteran had decreased mobility and weakness that would affect her in an occupational setting.  On remand, the Veteran should be scheduled for a VA general medical examination regarding TDIU.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Accordingly, the case is REMANDED for the following action:

1. Provide notice to the Veteran regarding how to substantiate her claim for a TDIU.  

2. After accomplishing any additional necessary development (e.g., obtaining any records referenced by the Veteran), schedule the Veteran for a VA medical examination to determine the effect of the service-connected disabilities (fibromyalgia, athletes foot, and migraine headaches) have on the Veteran's employability.  Make the claims file available to the examiner for review of the medical history. 

The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's service connected disabilities (either alone or in combination with each other) render him unable to secure or follow a substantially gainful employment.

The examiner should provide complete rationale for all opinions expressed.  

3. After completing the development, adjudicate the Veteran's claim for entitlement to a TDIU.  If the benefit sought is denied, furnish the Veteran and her representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board.  

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. 2013).



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs