Citation Nr: 18148895 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 13-10 636 DATE: November 8, 2018 ORDER Entitlement to an increased 40 percent rating for service-connected generalized arthralgia and muscle pain is granted, throughout the rating period on appeal. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. Resolving reasonable doubt in his favor, throughout the period on appeal, the Veteran’s generalized arthralgia and muscle pain due to undiagnosed illness has been characterized by constant or near constant widespread musculoskeletal pain on both sides of the body, fatigue, and sleep disturbance, and refractory to therapy. CONCLUSION OF LAW 1. The criteria for an evaluation of 40 percent for generalized arthralgia and muscle pain due to undiagnosed illness have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.20, 4.71a, Diagnostic Codes 5020, 5021, 5025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1990 to May 1991, with additional reserve service. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in March 2012. The Veteran testified before the undersigned Veterans Law Judge at an October 2016 videoconference hearing; a transcript of the hearing is of record. This case was previously remanded to the Agency of Original Jurisdiction (AOJ) in April 2018, for additional development, and was subsequently returned to the Board. The issue of entitlement to service connection for an acquired psychiatric disorder was previously remanded to the AOJ for additional development, and that issue is still pending at the AOJ. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to increased ratings for arthralgia and muscle pain Historically, service connection was established for undiagnosed illness manifested by generalized joint pain and muscle pain in a March 2010 Board decision. In an April 2010 rating decision, the AOJ effectuated the Board's decision, and granted service connection and separate 10 percent ratings for generalized arthralgia and muscle pain, each considered as a Gulf War undiagnosed illness, effective February 17, 2004. In September 2011, the Veteran filed a claim for an increased rating for these disabilities. Throughout the rating period on appeal, the Veteran's generalized arthralgia has been rated as 10 percent disabling under Diagnostic Codes 8850-5020, and his muscle pain (Gulf War undiagnosed illness) has been rated as 10 percent disabling under Diagnostic Codes 8850-5021. The Veteran contends that his generalized arthralgia and muscle pain are more disabling than currently evaluated. In an October 2011 statement, he said he had not worked for four years due to hip and ankle pain. He said sitting upright was painful, it was difficult putting on his right sock and shoe, and his knees were starting to go out. At his October 2016 Board hearing, he testified that his ability to move around was greatly affected by his right hip disability, and that a hip replacement was planned. He also reported pain in his back, hands, left hip and knees. He said most of his major joints had been affected. With regard to myositis, he reported continuous pain all over his body that was like muscle cramps, or really sore muscles. He reported that his disabilities also caused sleep impairment. The Board notes that the Veteran has been diagnosed with degenerative joint disease of the spine and hip, and service connection has not been established for these disabilities. In an October 2009 VA medical opinion, the VA examiner opined that the Veteran’s current degenerative changes of the lumbosacral spine are all age-related and are not caused by military service. On VA examination in November 2011, the examiner diagnosed degenerative disc disease of the lumbar spine. Records from the Social Security Administration (SSA) reflect that the Veteran has the following severe impairments: lumbar radiculopathy, right hip degenerative joint disease, osteoarthritis of the hips, and obesity. Symptoms of these non-service-connected disabilities affecting the joints may not be considered when evaluating the service-connected generalized arthralgia due to undiagnosed illness. 38 C.F.R. § 4.14. Pursuant to 38 C.F.R. § 4.27, the diagnostic code numbers assigned for ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned. Hyphenated diagnostic codes are appropriate where, as here, the disability is rated by analogy. Id. Diagnostic Code 8850 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the musculoskeletal diseases found in VA’s Rating Schedule. Diagnostic Codes 5020 and 5021, pertaining to synovitis and myositis, respectively, direct the rater to evaluate the disability based on limitation of motion of affected parts, as arthritis, degenerative. Under Diagnostic Code 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 (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Although VA regulations allow for ratings by analogy, see 38 C.F.R. § 4.20, the United States Court of Appeals for Veterans Claims (Court) recently held that when a condition is specifically listed in VA’s schedule for rating disabilities, it may not be rated by analogy; in other words, an analogous rating may be assigned only where the service-connected condition is unlisted in VA’s schedule for rating disabilities. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015) (quoting Suttman v. Brown, 5 Vet. App. 127, 134 (1993). After a review of the evidence of record, the Board finds that the Veteran's service-connected generalized disabilities of arthralgia and muscle pain are more appropriately rated together by analogy under Diagnostic Code 5025, pertaining to fibromyalgia, as this is more favorable to the Veteran. The probative evidence does not show that the Veteran's generalized arthralgia and muscle pain, excluding the symptoms from the non-service-connected arthritis of the back and hips, is consistent with a higher 20 percent rating under either Diagnostic Code 5020 or 5021, as a compensable degree of limitation of motion is not shown in any joint as a result of the service-connected disabilities. Fibromyalgia is rated under Diagnostic Code 5025, with symptoms of 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. “Refractory” means resistant to treatment or cure; unresponsive to stimulus; or not responding to an infectious agent. Merriam-Webster Medical Dictionary available at http://c.merriam-webster.com/medlineplus/refractory (2016). Based upon a longitudinal review of the record, the Board concludes that the Veteran’s generalized arthralgia and muscle pain due to undiagnosed illness has been manifested by constant or near constant widespread musculoskeletal pain, fatigue and sleep disturbance that is refractory to therapy throughout the course of this appeal. Accordingly, the Board concludes that an evaluation of 40 percent, but no higher, is warranted throughout the course of appeal. On VA examination in November 2011, the Veteran complained of intermittent pain in both ankles, present only when walking. Full range of motion was shown on examination, without pain on motion. The examiner indicated that since the examination was normal, a current diagnosis was not given. The lumbosacral spine and hips were examined and the examiner diagnosed degenerative disc disease and arthritis of the spine, and bilateral hip degenerative joint disease. The examiner noted that the Veteran had been diagnosed with ankylosing spondylitis, but this was not considered related to a Gulf War Syndrome. The examiner opined that the Veteran had pain in the thoracolumbar spine, sacroiliac joints and hips due to arthritis. An examination of the knees was essentially normal and a diagnosis was not indicated. The Veteran complained of mild intermittent pain of the right knee. Bilateral knee range of motion was from 0 to 130 degrees. There was no objective evidence of painful motion. The examiner opined that there was no evidence of a definitive Gulf War Syndrome, observing that the Veteran engaged in manual labor activities throughout his working career, which is deemed the most likely cause of his arthralgias and myalgias as well as degenerative changes and ankylosing spondylitis. Voluminous VA outpatient treatment records reflect treatment for chronic pain in multiple joints, limited mobility, a psychiatric disorder, and substance abuse. On VA examination in February 2018, the examiner diagnosed arthralgia and myalgia, each affecting both sides of the body. The Veteran reported that his joints were all worn out but unfortunately were diagnosed as arthritis. He said his muscles were constantly tender, across the chest, abdomen, legs, and shoulders. He said his shoulders, wrists and left hip were bad, and he had a right hip replacement. He said his back had pretty significant degenerative disease. He said he could not walk properly because of his shoulders. He said his pain level was usually 6 or higher for his muscles and bones. On examination, muscle strength was normal (5/5) throughout. The examiner noted that the Veteran had diagnoses of substance dependence, obesity, schizoaffective disorder, and depression. The examiner noted that there was X-ray evidence of moderate degenerative changes of the lower lumbar spine, osteophytes in the thoracic spine, inflammatory arthritis of the right thumb, right hip prosthesis, and acetabular spurring and osteoarthritis of the left hip. There were only minimal findings in the knee and ankles. The examiner opined that the current severity of the generalized arthralgia and muscle pain (undiagnosed illness) was unchanged. The Board acknowledges that the Veteran is competent to report observable symptoms such as pain, and the Board has considered his statements when evaluating his claims. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that Veteran’s testimony, statements, examinations, and medical records document an overall disability picture which more nearly approximates that of widespread bilateral pain and muscle tenderness that persists despite continuous medication for the entire period on appeal. Thus, a 40 percent rating is warranted throughout the rating period on appeal. As the Veteran already now has the highest possible schedular rating of 40 percent for his undiagnosed illness with arthralgia and muscle pain, a rating in excess of 40 percent is not warranted at any point throughout the course of this appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. In summary, the maximum schedular rating of 40 percent for his undiagnosed illness with arthralgia and muscle pain is warranted throughout the rating period on appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20. To the extent that he asserts that an even higher rating is warranted, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted above, the issue of service connection for an acquired psychiatric disorder was previously remanded for additional development, and is still pending at the AOJ. The issue of entitlement to a TDIU is deferred as it is inextricably intertwined with the issue of service connection for an acquired psychiatric disorder. The matter is REMANDED for the following action: After the issue of service connection for an acquired psychiatric disorder is readjudicated pursuant to the Board’s prior April 2018 remand, readjudicate the issue of entitlement to a TDIU. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. L. Wasser, Counsel