Citation Nr: 1636500 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 14-11 170A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for a right hip disability, rated at 20 percent prior to January 15, 2013, and 10 percent thereafter 2. The propriety of the rating reduction from 20 percent to 10 percent for right hip disability effective January 15, 2013. 3. Entitlement to a rating in excess of 20 percent for a lumbar spine disability. 4. Entitlement to an initial 40 percent rating prior to August 11, 2009, for fibromyalgia. 5. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 6. Entitlement to a separate (compensable) rating for insomnia. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 4, 2011. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to October 1970. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. On the April 2014 Form 9 for the increased initial rating claims, the Veteran requested a Board hearing at a local VA office. In November 2015, the Veteran withdrew that request. The Board has characterized the issues after careful consideration of the evidence of file along with the procedural history of this appeal. In this regard, the increased initial rating claim for fibromyalgia is limited based on the Veteran's July 2014 contention that the fibromyalgia warranted a 40 percent rating (the highest schedular rating) earlier than previously granted. After review, the Board does not find that the question of entitlement to a rating in excess of 40 percent, such as on an extra-schedular basis, is in appellate status. The record before the Board consists of the Veteran's electronic records in Virtual VA and the Veterans Benefits Management System. The issues of an increased initial rating for right hip disability and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The July 2013 VA examination for the right hip disability, which provided the basis for a rating reduction, was not adequate as it did not evaluate range of motion in both weight-bearing and nonweight-bearing as required by 38 C.F.R. § 4.59. 2. The lumbar spine disability has resulted in limitation of flexion to 30 degrees but not unfavorable ankylosis. 3. The fibromyalgia resulted in constant or near-constant widespread symptoms that were largely refractory to therapy throughout the appeal period prior to August 11, 2009. 4. The sleep impairment is contemplated in the rating assigned for his psychiatric disability. 5. Resolving all doubt in favor of the Veteran, the Veteran's gainful employment ended July 19, 2011. CONCLUSIONS OF LAW 1. The criteria for reducing the evaluation for the right hip disability from 20 percent to 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2014); 38°C.F.R. §§ 3.105, 4.71a, Diagnostic Code 5252 (2015). 2. The criteria for a 40 percent rating for lumbar spine disability have been met. 38°U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). 3. The criteria for an initial 40 percent rating for fibromyalgia have been met. 38°U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5025 (2015). 4. Assigning a separate rating for sleep impairment would violate the rule against pyramiding. 38 C.F.R. § 4.14. 5. The criteria for a TDIU effective July 20, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Regarding the claims for increased rating for fibromyalgia and an earlier effective date for a TDIU, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claims. Therefore, no further development of the record is required before the Board decides the claims. Regarding the claim for increased rating for a lumbar spine disability, and a separate rating for sleep impairment, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, the record reflects that the duty to assist has been satisfied. The record documents that service records, VA treatment and examination records, and post-service medical evidence identified by the Veteran, including Social Security Administration (SSA) records, have been obtained. The record does not identify any outstanding, existing evidence that could be relevant to the sleep impairment claim. The record does suggest that there are outstanding treatment records pertaining to the back, particularly those associated with inpatient treatment reported by the Veteran in September 2014 and treatment at H.H. reported by the Veteran in an October 2011 VA Form 21-4142. As addressed below, the Board awards a 40 percent rating for the orthopedic manifestations of lumbar spine disability. A higher schedular rating requires ankylosis - which is defined as fixation of a joint in a particular position. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5). There is no lay or medical evidence suggesting that the Veteran's lumbar spine has manifested ankylosis during the appeal period and the Board finds that no reasonable possibility exists that the private medical records could establish a diagnosis of ankylosis. As further discussed below, the Veteran has not appealed the assignment of a 40 percent rating for the neurologic manifestation involving the right lower extremity, and the combined rating between the orthopedic and neurologic manifestations of lumbar spine disability is greater than the highest possible rating under the alternate rating criteria for rating intervertebral disc syndrome. Thus, the Board finds no prejudice from adjudicating the low back disability at this time. The Veteran was provided examinations to determine the nature and severity of the disabilities during the period of the claims. The records reveal all findings necessary to rate the conditions, and the Veteran has not alleged that a disability has increased significantly in severity since the most recent examination. The examination findings are supplemented by clinic records and the Veteran's own descriptions of symptoms, limitations and functional impairment. The Board finds the medical evidence of record provides sufficient findings to determine the severity of each disability and the effect on occupational functioning throughout the periods of the claims. Accordingly, the Board will address the merits of the appellant's appeal. II. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2014); 38°C.F.R. §§ 3.102, 4.3 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. III. Rating reduction for a Right Hip Disability In a February 2005 rating decision, the RO granted an increased rating of 20 percent effective April 28, 2004, for the right hip disability. The RO assigned the 20 percent rating under Diagnostic Code 5003-5252, based in part on pain on movement, weakness, and lack of endurance on repetitive use. In November 2011, the Veteran filed a claim for a TDIU. The RO interpreted the claim as a claim for increased ratings for all service-connected disabilities. In a July 2013 rating decision, the RO reduced the rating for the right hip disability to 10 percent effective January 15, 2013. The reduction did not result in a reduction of compensation payments. Although the Veteran's combined rating was reduced to 90 percent effective January 15, 2013, as a result of the reduction in the rating assigned for the right hip disability, the July 2013 rating decision awarded the Veteran a TDIU effective August 4, 2011, and the compensation benefits remained the same amount. See February 2014 notification letter. Thus, the requirements found at 38 C.F.R. § 3.105(e) do not apply. For ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344. The appropriate dates to be used for measuring the five-year time period, according to VA regulation, are the effective dates, i.e., the date that the disability rating subject to the reduction became effective is to be used as the beginning date and the date that the reduction was to become effective is to be used as the ending date. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). When the rating was reduced, it had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply. By regulation, the RO must apply the following provisions when reducing a disability rating: (1) the [RO] must review "the entire record of examinations and the medical- industrial history . . . to ascertain whether the recent examination is full and complete"; (2) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction"; (3) "[r]atings on account of disease subject to temporary and episodic improvement . . . , will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated;" and (4) "[a]lthough material improvement in the physical or mental condition is clearly reflected, the rating agency will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." Brown v. Brown, 5 Vet. App. 413, 419 (1993). Where an RO reduces a veteran's disability rating without following the applicable VA regulations, the reduction is void ab initio. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Murincsak v. Derwinski, 2 Vet. App. 363, 369 (1992); Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991). The Veteran's 20 percent rating was awarded following an April 2004 claim in which he alleged worsening of the condition. The Veteran was seen for a VA examination in June 2004. The reduction was based on a January 2013 VA examination record. The record also included the results of VA examinations in 2009 and private and SSA medical records. In Correia v. McDonald, No. 13-3238, 2016 WL 3591858, ___ Vet. App. ___ (Vet. App. July 5, 2016), the Court of Appeals for Veterans Claims held that VA examination reports must comply with the language of 38 C.F.R. § 4.59 (2015) by evaluating range of motion "for pain on both active and passive motion, in weight bearing and nonweight-bearing." Id. at *10. A review of the January 2013 VA examination does not reflect that the Veteran was evaluated for range of motion "for pain on both active and passive motion, in weight bearing and nonweight-bearing." Thus, the Board cannot conclude that the Veteran was afforded a VA examination which complied with the provisions of 38 C.F.R. § 4.59, and the rating reduction does not comply with applicable criteria for rating reductions. Thus, the 20 percent rating is restored effective January 15, 2013. IV. Increased Rating for Lumbar Spine Disability A. Legal Criteria Under the criteria governing disabilities of the lumbar spine, intervertebral disc syndrome is to be evaluated either under the General Rating Formula (Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, 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. The Formula for Rating IDS provides for a rating of 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. §°4.71a, Note (1). B. Factual Background In November 2011, the Veteran filed a claim for a TDIU. The RO interpreted the claim as a claim for increased ratings for all service-connected disabilities, including the low back disability. A May 2011 private treatment record reveals the Veteran's history of low back pain that radiated towards the hips. Examination revealed scoliosis with right thoracic prominence. Lumbar extension was painful in bending to the left more than the right. Strength was intact, and straight leg raise was negative. June 2011 private physical therapy records indicate that the Veteran's thoracic and lumbar spine posture was flattened in standing position. Straight leg raise was positive. There was decreased muscle mobility at S1. There was decreased response to light touch and pain in the right lower extremity due to old peripheral nerve injury. There was point tenderness at L1 and L2 levels on the right paraspinals. The Veteran reported pain at 5/10 that increased to 7/10 and "at times" decreased to 4-5/10. He reported increased pain with repeated flexion. Trunk flexion, extension, and rotation were "fair+." Another record indicates that the Veteran had trunk flexion to 30 degrees, extension to 20 degrees, right rotation to 40 degrees, and left rotation to 20 degrees. Trunk strength was 3+/5 with all motion. July 2011 private physical therapy records reveal the Veteran's history that his back pain was exacerbated by sitting in his car. The Veteran reported that he had to drive a car a great deal due to his work. The record indicates that the Veteran was able to flex 30 degrees, extend 20 degrees, right rotate 40 degrees, and left rotate 20 degrees. Trunk strength was 3+ with all motion. A March 2011 private medical record reveals the Veteran's history of low back pain and left-sided numbness. Radiographic imaging showed scoliotic curvature with diffuse degenerative changes in the lumbar spine, borderline mild spinal stenosis at L4-5, and small herniated disc at L5-S1. A March 2012 VA treatment record indicates that the Veteran's lower extremity neurologic status was grossly intact and sensate. A November 2012 VA treatment record reveals the Veteran's history of low back pain, which became "unbearable" with standing longer than one hour. Examination revealed that the Veteran stood with decreased lumbar lordosis and rounded shoulders and forward head. There was increased thoracic kyphosis. Evaluation of gait revealed mild forward flexion at the hips. There was no muscle spasm and no area that was tender to palpation. Forward flexion was 33 percent full with increased pain. Extension was 10 percent full with marked increase in pain. Right side bend was 50 percent full. Left side bend was 25 percent full with increased right lower back pain. There was "very limited" segmental motion. Muscle strength was grossly 5/5 except right hip flexion was 4/5. Straight leg raise was positive and limited by tight hamstrings. The Veteran reported numbness to the thighs, right foot, and right anterior shin. December 2012 VA treatment record indicates that the Veteran stood with decreased lumbar lordosis and rounded shoulders and forward head. There was increased thoracic kyphosis. Evaluation of gait revealed mild forward flexion at the hips. There was no muscle spasm in the lumbar region. There was no area that was tender to palpation. Lumbar forward flexion was 75 percent full with marked increase in lower back pain. Extension was 10 percent full with marked increase in pain, right lateral flexion was 50 percent full, and left side bend was 25 percent full with increased right lower back pain. There was very limited segmental motion. Muscle strength was grossly 5/5 except right hip flexion was 4/5. A January 2013 VA treatment record reveals that forward flexion was 75 percent full with increased pain, extension was 10 percent full with marked increase in pain, right lateral flexion was 25 percent full, and left lateral flexion was 10 percent full with increased right lower back pain. Muscle strength was full except with right hip flexion, where it was 4/5. A January 2013 VA spine examination record reveals the Veteran's history of daily back pain without radiation or paresthesias. He reported difficulty with prolonged sitting, standing, or walking. He denied flares. Range of motion testing revealed flexion to 50 degrees, extension to 20 degrees, lateral flexion to 30 or more degrees bilaterally, and rotation to 30 or more degrees bilaterally. There was no pain with motion and no change in range of motion after repetition. The examiner reported that the Veteran had functional impairment due to less movement than normal and pain on movement. There was not localized tenderness or pain to palpation, spasm, or guarding. Motor strength was 5/5 in the left lower extremity. Deep tendon reflexes were 2+ in the knee and absent at the ankle. Sensation in the left lower extremity was normal. Straight leg raise was negative. There was not radicular pain or other signs or symptoms due to radiculopathy. The examiner reported that the Veteran had incapacitating episodes due to intervertebral disc syndrome that lasted at least one week but less than 2 weeks in the previous 12 months. A January 2013 VA peripheral nerve examination reveals the Veteran's history of mid back pain with intermittent hip radiation bilaterally. The Veteran reported mild pain in the left lower extremity but no paresthesia and/or dysesthesias or numbness. Motor strength was 5/5. Deep tendon reflexes were 2+ at the knee and absent at the left ankle. Sensation was normal in the left lower extremity. The examiner found the reported pain was due to fibromyalgia, low back pain consistent with lumbar radiculopathy with unremarkable MRI scan, multiple shrapnel injuries right leg, and Achilles tendon tear right leg. The examiner found the symptoms were primarily likely to be a combination of lumbar radiculopathy, scars with subsequent traumatic neuropathy, and the torn Achilles tendon and arthritic complaints/fibromyalgia. A September 2013 VA treatment record reveals the Veteran's history of low back pain, muscle spasm, and pain that radiated to the left lower extremity. He also reported stiffness and numbness and tingling in the right lower extremity. There was tenderness and spasm over the left upper lumbar area. Trunk mobility was limited to 50 degrees flexion and 20 degrees extension. Straight leg raise was negative. Muscle strength was 5/5 in the left lower extremity. Sensation was decreased to light touch and pin prick over the right medial ankle. Reflexes were trace and symmetric. An August 2014 VA treatment record reveals the Veteran's history of low back pain that did not radiate to the legs. He reported "heaviness" of the left leg. Straight leg raise was negative. There was decreased range of motion in the back and the back was diffusely tender. There was no spasm. March, April, and June 2015 VA treatment records reveal the Veteran's history of low back pain that ranged from 2-10/10. He denied radiation of pain or weakness. He reported that the pain increased with bending, lifting, twisting, activity, and prolonged standing and sitting. He reported ability to perform activities of daily living without much difficulty. Strength was full in the left lower extremity, and muscle tone was normal. Reflexes were 1+ in the knees and absent in the ankles. The record does not reveal a finding of diminished sensation in the left lower extremity. Gait was nontantalgic. The records reveal findings of tenderness with motion. The March 2015 VA treatment record also reports "slightly limited" range of flexion and full extension, lateral flexion, and lateral rotation. The April 2015 VA treatment record reports "limited" range of flexion and full extension, lateral flexion, and rotation. The June 2015 VA treatment record reports "limited" range of flexion, extension, lateral flexion, and rotation with tenderness with all motion. C. Analysis Upon consideration of the evidence, the Board finds a 40 percent rating is warranted for the entire period of the claim based on the evidence of at least periodic limitation of flexion to or near 30 degrees, as shown in the May and July 2011 and November 2012 medical records. When considering functional impairment on use and the approximating principles of 38 C.F.R. § 4.7, the Board finds that the Veteran's low back disability more nearly approximates limitation of motion to 30 degrees or less. A rating higher than 40 percent is not warranted at any time as there is no lay or medical evidence of unfavorable ankylosis or the approximation thereof. With regard to entitlement to a separate rating based on neurological impairment, the Board notes that the Veteran has been assigned a distinct rating for impairment of the right sciatic nerve since November 1, 1971. That rating is not on appeal. The Board has considered whether a separate rating is warranted based on other neurological impairment, such as impairment of the left sciatic nerve. The record generally reveals negative histories as to radicular pain, negative straight leg raise, and intact sensation and motor strength in the left lower extremity. Although there is evidence of absent and diminished reflex, the impairment of deep tendon reflexes has not been attributed to the lumbar spine disability. The Board finds the evidence does not suggest the existence of mild or greater impairment of the left sciatic nerve, as necessary for a separate (compensable) rating. The record also does not suggest the existence of an alternate neurological impairment, such as one causing bowel dysfunction. Additionally, the Veteran holds a 40 percent rating for the orthopedic manifestations of IDS, and a 40 percent rating for the neurologic manifestations of IDS. Thus, a higher rating is not available under the Formula for Rating IDS. V. 40 Percent Rating for Fibromyalgia A. Legal Criteria 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 10 percent rating is appropriate for symptoms that require continuous medication for control. A 20 percent rating is appropriate for symptoms that 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. The highest rating of 40 percent is warranted for symptoms that are constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71a, DC 5025. B. Factual Background In a March 2011 rating decision, the Appeals Management Center granted service connection for fibromyalgia effective January 30, 2002. Ultimately, the Veteran was awarded an initial 10 percent rating and a 40 percent rating effective August 11, 2009. See March 2011 and February 2014 rating decisions. The Veteran contends that a 40 percent rating is warranted for the entire period of the claim. An April 2005 hearing transcript reveals the Veteran's testimony that the fibromyalgia was associated with generalized pain in the muscles and tissues with particular pain in the shoulders. An August 2006 private medical statement reports the Veteran's 20-year history of "joint pain all over, more severe for the last five years." The physician specified that the Veteran described chronic low back pain, bilateral shoulder pain, cervical spine pain, and right lower extremity pain subsequent to a service injury. He also reported mild neuropathic discomfort in the right lower extremity. The Veteran denied fever, chills, rigors, weight loss, rash, or chronic diarrhea or frequent bowel movements with blood or mucus. Diagnoses included chronic pain syndrome. The physician explained that the nature of the Veteran's complaints "includes components of objective neuromuscular pathology but appeared to have superimposed possibly the effects of a new disorder." The examiner found no evidence of systemic rheumatic disease with an inflammatory component. A January 2007 hearing transcript reports the Veteran's testimony that his fibromyalgia was associated with a "very intense" ache in the muscles, predominantly in the upper part of the body. He reported "a little relief" with therapy and medication. An August 2009 VA examination record reveals the Veteran's history of pain, weakness, stiffness, and swelling of all joints with fatigability and lack of endurance. He added that he had constant muscle pain that was precipitated by working, using steps, and driving. He reported daily flares depending on what he was doing. The examiner noted that there was "mainly" muscle pain with hip range of motion and knee range of motion. There was evidence of lack of endurance with motion of the left ankle and shoulders. The examiner diagnosed fibromyalgia and noted that it was affecting the left ankle, left knee, right hip, shoulders, and lumbosacral spine A December 2009 VA examination record reveals the Veteran's history of constant pain in all the different muscle areas. He also reported unexplained fatigue, sleep disturbance, headache, paresthesias, and gastrointestinal symptoms. He reported constant muscle pain with daily flares depending on what he was doing. The examiner noted that range of motion of the joints was difficult to determine because it was muscle pain. The examiner found the "musculoskeletal areas were involved, trigger points, and tender points, and muscle strength in all the areas." The diagnosis was fibromyalgia. Lay statements submitted in December 2009 report histories that the Veteran had severe body pain, for which he took pain medications that were not effective. The statements indicate that "occasionally," the pain was so severe the Veteran had to rest. A February 2010 private medical statement indicates that the Veteran had significant discomfort and fatigue related to his fibromyalgia and that it had not responded to conservative therapy. C. Analysis Upon consideration of the evidence, the Board finds a 40 percent rating is warranted for the entire period of the claim. The Veteran's histories during this period, as reported in medical records, transcripts, and statements, suggest constant or near-constant pain in the muscles and joints that was at most minimally relieved by treatment. The Veteran is competent to report his symptomatic history, and the Board finds the Veteran's account credible, particularly as there is no countervailing evidence. Resolving all doubt in favor of the Veteran, the Board finds the Veteran's fibromyalgia most nearly approximated the 40 percent rating for the period prior to August 11, 2009. Thus, the claim is granted. VI. Separate Rating for Sleep Impairment The record indicates that the Veteran has sleep impairment. The Veteran contends that a separate rating is warranted for his sleep impairment. The Board finds that a separate, compensable rating for sleep impairment would constitute prohibited pyramiding. The record documents that the Veteran's sleep impairment was considered when determining the proper rating for the service-connected psychiatric disability. See, e.g., October 2007 Board decision. This consideration was appropriate as the General Rating Formula for Rating Mental Disorders discusses sleep impairment in its criteria. 38 C.F.R. § 4.130 (2015). Although the evidence indicates that the sleep impairment is also due to pain from other service-connected disabilities, there is no evidence of distinct manifestations that could warrant a separate rating. See 38 C.F.R. §§ 4.14, 4.25(b) (2015); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). Thus, the claim must be denied. VII. TDIU In a July 2013 rating decision, the RO granted a TDIU effective August 4, 2011, which the RO determined was the date after the date the Veteran last worked. It appears the RO based that determination on a VA Form 21-4192, Request for Employment Information, submitted by the Veteran's former employer in March 2013, on which it was reported that the Veteran's ending date of employment was August 4, 2011. The Veteran contends that he stopped working in July 2011 and that the TDIU should be effective from that date. The Veteran's initial informal claim for a TDIU, received in August 2011, reports that he stopped working in July 2011. He then submitted a formal claim for TDIU in November 2011, in which he reported that he last worked full-time on July 19, 2011. The SSA Disability Report reports that the Veteran stopped working on July 19, 2011. Resolving all doubt in favor of the Veteran, the Board finds the Veteran's last date of employment was July 19, 2011, which is the date SSA determined was the last date of employment. Thus, the Board finds an effective date of July 20, 2011, is warranted for the award of a TDIU. VIII. Extraschedular The Board must also consider whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Board notes that, in Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed Cir. 2014), the Federal Circuit Court stated that "[l]imiting referrals for extra-schedular evaluation to considering a Veteran's disabilities individually ignores the compounding negative effects that each individual disability may have on the Veteran's other disabilities." When considering whether referral is warranted based on the combined effects of a Veteran's service-connected disabilities, the Board first must compare the Veteran's symptoms with the assigned schedular ratings. Yancy v. McDonald, 27 Vet. App. 484 (2016). As addressed below, the Board must remand the issues of entitlement to higher disability ratings for right hip disability and GERD. As such, consistent with the holdings in Johnson and Yancy, the Board defers consideration of entitlement to referral for extra-schedular consideration pending final appellate review of the additional increased rating claims. ORDER The 20 percent rating for a right hip disability is restored effective January 15, 2013. Entitlement to a 40 percent rating for a lumbar spine disability is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to an initial 40 percent rating for fibromyalgia is granted, subject to the criteria applicable to the payment of monetary benefits. A separate rating for insomnia is denied. An effective date of July 20, 2011, for the award of a TDIU is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The record includes a September 2014 statement reporting "recent" hospitalization for "extreme GERD." All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, the Board finds the records should be requested. The record also indicates that the Veteran has not been afforded a VA examination to determine the current degree of severity of the GERD since 2011. Therefore, the Veteran should be afforded appropriate VA examination to determine the current degree of severity of the GERD. Additionally, in light of the Correia decision, the Board must remand the right hip disability claim for an additional VA examination. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain all pertinent, outstanding medical records, notably those associated with the inpatient treatment reported in September 2014 and updated VA clinic records. 2. Afford the Veteran VA examinations to determine the current degree of severity of the service-connected GERD and right hip disability. Ensure that the examiner provides all information required for rating purposes. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's right hip and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, describing objective evidence of painful motion, if any, during each test and, if possible, comparing range of motion in the Veteran's right hip with the range of the opposite undamaged joint. If any of these findings are not possible, please provide an explanation. 3. Undertake any other development it determines to be warranted. 4. Then, readjudicate the Veteran's claim for a higher rating for GERD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U. S. 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 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs