Citation Nr: 18140786 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-17 956 DATE: ORDER An initial disability rating greater than 40 percent for fibromyalgia (claimed as joint and muscle pain, sleeping problems, finger joints swell daily, and chest pains on left side) to include whether separate compensable ratings are warranted for bilateral hand arthritis and/or Raynaud's disease is denied. FINDING OF FACT The Veteran’s fibromyalgia is manifested by constant, or nearly so, widespread musculoskeletal pain and tender points, particularly of the hands, with no demonstrable loss of motion of the fingers/thumbs. CONCLUSION OF LAW The criteria for an initial disability rating greater than 40 percent for fibromyalgia, to include separate compensable ratings for bilateral hand arthritis and/or Raynaud’s disease, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1990 to October 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Notably, A February 2016 statement of the case failed to consider the Veteran’s December 2014 notice of disagreement concerning his “finger joint swelling” encompassed in his service-connected fibromyalgia disability and erroneously found that the Veteran was not service-connected for a finger disability. However, the RO rectified their mistake by issuing a February 2018 supplemental statement of the case which addresses the fibromyalgia issue. Moreover, while additional issues addressed in the December 2013 rating decision and December 2014 notice of disagreement have been certified to the Board, the Veteran limited his appeal to the fibromyalgia issue in his April 2016 VA Form 9, substantive appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Also, the VA General Counsel held in VAOPGCPREC 9-98 after reiterating its holding in VAOPGCPREC 23-97 that pain as a factor must be considered in the evaluation of a joint disability with arthritis and that the provisions of 38 C.F.R. § 4.59 are for consideration. “Staged ratings” or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected fibromyalgia is rated under 38 C.F.R. § 4.71a, DC 5025 which contemplates fibromyalgia 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. Specifically, DC 5025 provides for a 10 percent disability rating with fibromyalgia symptoms that require continuous medication for control. A 20 percent disability rating is warranted with fibromyalgia 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. A 40 percent disability rating is warranted with fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. Also relevant are DCs 5010/5003 which pertain to arthritis. Under DC 5010, traumatic arthritis substantiated by x-ray findings, is rated as degenerative arthritis pursuant to DC 5003. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, a 10 percent rating is warranted for traumatic arthritis when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted for degenerative arthritis when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. For the purpose of rating disability from arthritis the interphalangeal, metacarpal, and carpal joints are considered a group of minor joints. 38 C.F.R. § 4.45. DCs 5228 through 5230 pertain to limitation of motion of the digits. Pursuant to DC 5228, a noncompensable disability rating is warranted for limitation of motion of the major thumb with a gap of less than 1 inch between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent disability rating is warranted under DC 5228 for limitation of motion of the major thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A maximum 20 percent rating under DC 5228 is warranted for limitation of motion of the major thumb with a gap of more than two inches between the thumb pad and the ringers, with the thumb attempting to oppose the fingers. In determining disability ratings, DC 5228 makes no differentiation between the major and minor hands. Pursuant to DC 5229, limitation of motion of the index or long finger is rated as follows: a noncompensable rating is warranted for the index finger or long finger if there is limitation of motion with a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees; and a maximum 10 percent rating is provided for the index finger or long finger where there is limitation of motion with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Pursuant to DC 5230, limitation of motion of the ring or little finger is rated as noncompensable with any degree of limitation of motion. Analysis The Veteran contends that a higher rating is warranted for his service-connected fibromyalgia. Specifically, the Veteran contends that he is entitled to separate compensable disability ratings for arthritis of his hands and/or Raynaud’s disease. Evidence relevant to the current level of severity of the Veteran’s fibromyalgia includes August 2013 VA fibromyalgia and hand/finger examination reports. The VA fibromyalgia examination report notes a diagnosis of fibromyalgia since 1996. At that time, the Veteran reported that he began experiencing joint pain in the hands, right ankle, and left hip/shoulder while stationed in Saudi Arabia. Specifically, the Veteran’s hands would swell with the heat and while using tools and his ankles would crack from rolling. The Veteran was not being treated for this condition and was not using continuous medication for control of fibromyalgia symptoms. His fibromyalgia symptoms were not refractory to therapy. The examiner noted that the Veteran’s fibromyalgia resulted in stiffness, fatigue, sleep disturbances, paresthesias, irritable bowel symptoms, and Raynaud’s-like symptoms. The examiner indicated that the Veteran’s symptoms were constant or nearly constant. It was noted that the Veteran had tender points for pain in the low cervical region, second rib, occiput, trapezius muscle, supraspinatus muscle, gluteal, greater trochanter, and knee. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s fibromyalgia. The examiner noted that the Veteran’s fibromyalgia impacted his ability to work, specifically he had a limitation with gripping, typing, pushing and pulling, prolonged walking, running, standing and sitting, jumping, squatting, and climbing stairs. During the August 2013 VA hand/finger examination, the examiner noted a diagnosis of fibromyalgia – hand pain beginning in 1996. At the time of the examination, the Veteran reported that his hands swell and become painful both from overuse and hot weather. Flare-ups did not impact the function of the hand. There was no limitation of motion or evidence of painful motion for any fingers or thumbs and the Veteran was able to perform repetitive-use testing with three repetitions. The Veteran reported experiencing functional loss/impairment of the finger/thumbs (specifically pain on movement and swelling) but there was no additional limitation in range of motion of any of the fingers/thumbs following repetitive-use testing. Significantly, the examiner wrote that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over time. There was no tenderness or pain to palpation for joints or soft tissue of either hand, including the thumb and fingers. Muscle strength testing was normal and there was no ankylosis of the thumbs and/or fingers. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran’s hand condition. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the Veteran’s hand condition impacted his ability to work, specifically, there was a limitation with gripping, grasping, typing, pushing, and pulling with hands/fingers. While no diagnostic testing was performed, the examiner noted a January 2010 X-ray of the left middle finger with an assessment of probable strain of the left middle finger secondary to wrestling trauma. Significantly, the examiner noted that primary osteoarthritis of the hands had not yet been considered. Also relevant to the Veteran’s fibromyalgia are private treatment records dated through March 2016. Significantly, a March 2016 private treatment record from Dr. P.H.C. shows diagnoses of bilateral wrist carpal tunnel syndrome, bilateral hand moderate IP (interphalangeal) joint OA (osteoarthritis), and bilateral hand Raynaud’s disease. Significantly, this report also shows that the Veteran has full range of motion of all his fingers. Upon review of the above evidence, the Board finds that an initial disability rating greater than 40 percent for the Veteran’s fibromyalgia is not warranted. Significantly, 40 percent is the maximum schedular rating available for fibromyalgia. See 38 C.F.R. § 4.71a, DC 5025. Given his medical history, diagnosis, and reported symptomatology, the Board finds that there is no other applicable diagnostic code which would permit the assignment of a schedular rating in excess of 40 percent for his fibromyalgia and associated symptoms. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting that the assignment of a particular diagnostic code is dependent on the facts of a particular case, including the relevant medical history, diagnosis assigned, and demonstrated symptomatology). The Board has considered the appellant’s reports of widespread musculoskeletal pain resulting in functional loss, but because the appellant is already in receipt of the maximum rating available under DC 5025, a higher rating based on functional loss due to pain is not for consideration. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In reaching its decision, the Board has also considered whether separate ratings for arthritis and/or Raynaud’s disease are warranted. As for arthritis, the Board notes that the Veteran has full range of motion, both during the August 20013 VA examination as well as during the March 2016 private evaluation. As such, a separate compensable rating would not be warranted for the Veteran’s arthritis of the hands. As for Raynaud’s disease, as above, DC 5025 specifically contemplates “Raynaud’s-like symptoms.” As such, the hand symptomatology the Veteran exhibits has been considered in assigning the maximum schedular rating available for fibromyalgia. Therefore, application of a separate rating for the Veteran’s hand disabilities based on arthritis and/or Raynaud’s disease would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App. 203 (1993). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel