Citation Nr: 18157330 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-58 527A DATE: December 12, 2018 ORDER From November 27, 2013, to April 21, 2016, entitlement to an initial rating of 40 percent, but no greater, for migratory polyarthralgias is granted, subject to the laws and regulations governing the payment of monetary benefits. From April 22, 2016, entitlement to a rating in excess of 40 percent for migratory polyarthralgias is denied. FINDINGS OF FACT 1. From November 27, 2013, to April 21, 2016, the Veteran’s migratory polyarthralgias is characterized by widespread musculoskeletal pain and tender points that are nearly constant and refractory to therapy; the issue of extraschedular consideration has not been raised. 2. From April 22, 2016, the Veteran is in receipt of the maximum schedular rating for his service-connected migratory polyarthralgias and he has not raised the issue of extraschedular consideration. CONCLUSIONS OF LAW 1. From November 27, 2013, to April 21, 2016, the criteria for a disability rating of 40 percent, but no greater, for migratory polyarthralgias have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code 5025. 2. From April 22, 2016, the criteria for a disability rating in excess of 40 percent for migratory polyarthralgias have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1999 to July 2003. A hearing was not requested. The Board does not currently have jurisdiction over a claim of entitlement to service connection for ankylosing spondylitis. This claim was listed in the Veteran’s October 2016 statement of the case but was not selected for appeal in the Veteran’s December 2016 VA Form 9. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From November 27, 2013, to April 21, 2016, entitlement to an initial rating of 40 percent, but no greater, for migratory polyarthralgias In June 2014, the RO granted entitlement to service connection for migratory polyarthralgias at an initial rating of 20 percent under Diagnostic Code 5025 from November 27, 2013, the day that the Veteran filed his claim. The Veteran is appealing the rating aspect of that decision. In October 2016, the RO increased the Veteran’s rating to 40 percent from April 22, 2016. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 5025 provides compensation for 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. 38 C.F.R. § 4.71a. A 10 percent rating is provided if the symptoms require continuous medication for control. Id. A 20 percent rating is provided 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. Id. A 40 percent rating is provided if the symptoms are constant or nearly constant and are refractory to therapy. Id. 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. Id. From November 27, 2013, to April 21, 2016, the evidence supports a rating of 40 percent. An April 2014 private medical record indicates chronic back pain and that the Veteran’s knee pain has worsened to the point that he cannot walk. A record from three days later states that “[t]he pain has gradually subsided and [the Veteran] is able to bear weight and walk with a walking stick.” A May 2014 private medical record states that the Veteran’s knee pain can vary from day to day. The June 2014 VA back examination indicates persistent low back pain with flare-ups accompanied by limitation of motion, joint swelling, and increased pain. The June 2014 VA fibromyalgia examination indicates that the Veteran does not have fibromyalgia or any symptoms associated with this disorder. The June 2014 VA non-degenerative arthritis examination indicates that the Veteran’s migratory polyarthralgias is accompanied by pain in 11 separate joints throughout his body. He experiences four or more non-incapacitating exacerbations per year, during which the Veteran “is limited in his ability to walk without crutches during exacerbation.” His exacerbations last 4 to 5 days. His most recent exacerbation was 2 weeks ago. He receives “Enbrel Auto injections weekly.” The Veteran states that since service he has experienced “pains in neck, left shoulder, right hip, both knees and right ankle . . . .” In a June 2014 private medical record, the Veteran describes how “flare-ups have become more frequent and more intense, especially [his] left knee, right ankle and big toes.” In that same record, he describes elbow pain and states that “[i]t hurts to shake hands with anyone, or to grip onto anything, like opening a jar, or anything else.” In a private medical record from the next day, the Veteran repeats most of these symptoms and additionally notes that Enbrel is ineffective and that he has problems sleeping. In a July 2014 private medical record, the Veteran describes flare-ups of his “back, knee, and ankle.” These symptoms are alleviated by Tramadol but result in “some crazy mood swings” and difficulty sleeping. Importantly, chronic pain throughout the body is noted in the April 2014 private medical record, the May 2014 private medical record, and two June 2014 VA examinations. This suggests that the Veteran’s pain is near constant or nearly constant. His symptoms also appear to be refractory to therapy, based on the fact that Enbrel and Tramadol have not eliminated his Veteran’s pain and flare-ups. In considering the evidence as a whole and giving the Veteran the benefit of the doubt, the Board finds that the evidence supports the existence of widespread musculoskeletal pain and tender points that are nearly-constant and refractory to therapy. This evidence is consistent with a rating of 40 percent from November 27, 2013, to April 21, 2016. This rating is the maximum rating available for this disability under the applicable diagnostic criteria and the issue of entitlement to extraschedular consideration has not been raised. 2. From April 22, 2016, entitlement to a rating in excess of 40 percent for migratory polyarthralgias From April 22, 2016, the Veteran is in receipt of the maximum schedular rating for his service-connected migratory polyarthralgias and he has not raised the issue of entitlement to extraschedular consideration. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel