Citation Nr: 18158957 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 14-26 291 DATE: December 18, 2018 ORDER Entitlement to an initial disability rating higher than 40 percent for costochondritis and fibromyalgia, to include on an extra-schedular basis, is denied. FINDING OF FACT The Veteran's costochondritis and fibromyalgia has resulted in widespread musculoskeletal pain and tender points, with associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, and anxiety that has been constant and refractory to therapy. CONCLUSION OF LAW The criteria for an initial disability rating higher than 40 percent for costochondritis and fibromyalgia, to include on an extra-schedular basis, are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5025 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 1974 through June 1976. 1. Entitlement to a disability rating higher than 40 percent for costochondritis and fibromyalgia, to include on an extra-schedular basis. Service connection for costochondritis and fibromyalgia was granted to the Veteran, effective November 17, 2009. A 40 percent initial disability rating was assigned pursuant to the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025. The Veteran asserts entitlement to a higher initial disability rating. DC 5025 provides the criteria that are used to rate disabilities due to fibromyalgia. Under those criteria, a maximum schedular 40 percent disability rating is assigned for 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 that are constant, or nearly so, and refractory to therapy. The Veteran is already in receipt of the maximum disability rating for fibromyalgia. Still, an extra-schedular disability rating may be assigned where the evidence shows that the disability under consideration presents an exceptional case that renders inadequate the available schedular rating criteria. In determining whether such consideration is warranted, VA applies a three-step test that was established by the United States Court of Appeals for Veterans Claims. Thun v. Peake, 22 Vet. App. 111 (2008). Under that test, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is therefore inadequate, the Board must then determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, in order to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. The Board determined in an April 2018 remand that review of the Veteran's appeal by the Director of the Compensation Service for consideration of an extra-schedular rating for the Veteran's fibromyalgia was warranted by the evidence. The Director of the Compensation Service reviewed the record and opined in an October 2018 letter that the Veteran's fibromyalgia does not present an exceptional or unusual disability picture. Hence, the Director recommends that an extra-schedular disability rating is not warranted. The Board concurs with the Director's recommendation based on the evidence in the record. Records for VA and private treatment received by the Veteran during the appeal period show that the Veteran has been followed for chronic and constant muscle tightness and pain in her shoulders, hands, hips, knees, ankles, feet, and back. The records also note that the Veteran was followed for insomnia and gastrointestinal symptoms caused by irritable bowel and spastic colon. Although the Veteran's symptoms were treated by multiple medications, the records show that the reported symptoms persist essentially unabated. Concurrent with the above treatment, the Veteran underwent an April 2011 examination for her fibromyalgia. At that time, she reported progressive pain in her hands, shoulders, knees, feet, bilateral tibia, and low back. She reported also that she had tender points in her head, between her shoulder blades, at the tops of her shoulders, upper chest area, outer elbows, upper hips, and inner knees. She reported sleep disturbance, profound fatigue, an irritable bowel, headaches, and depression. She described her symptoms as being constant and with flare-ups that occurred once a month and lasted for periods of up to several weeks. Functionally, she reported that she was able to walk up to a mile a day and stand in one position for up to 15 minutes. On examination, the examiner observed that the Veteran had 11 tender points at multiple joints around her body. The examiner observed that the Veteran's symptoms were resistant to medications. The Veteran's fibromyalgia was re-examined in September 2018. At that time, the examiner observed that the Veteran was non-responsive due to impairment caused by a May 2016 stroke. The Veteran was accompanied to the examination by her attending nursing assistant. Also, the examiner contacted the Veteran's brother and conservator to obtain a medical history. The Veteran's nursing assistant related that she had been working with the Veteran over the past year and that the Veteran was receiving medications for pain and spending most of her days in bed. She stated that the Veteran was unable to stand or assist with transfers and that a lift was needed in order to transfer the Veteran from her bed. The nursing assistant stated that the Veteran often expressed pain by moaning or yelling "ouch" during transfers. She reported her belief that the Veteran's pain symptoms originated from her right shoulder, elbow, and hand and both knees. On examination, the examiner noted that the Veteran winced visibly during palpation over the bilateral cervical, trapezius, supraspinatus, and over the right lateral epicondyle, greater trochanter, and medial knees. The examiner observed also that the Veteran's pain therapy included Venlafaxine, Oxycodone, Methadone, and Acetaminophen. (Continued on the next page)   Overall, the symptoms and impairment associated with the Veteran's fibromyalgia include chronic and constant muscle tightness and pain in multiple joints with associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowels, depression, and anxiety, which is fully consistent with the criteria for a 40 percent disability rating under DC 5025. The evidence does not show that the Veteran's fibromyalgia presents an exceptional disability picture that is not contemplated already by the criteria. The Veteran is therefore not entitled to an initial disability rating higher than 40 percent, including on an extra-schedular basis, for her costochondritis and fibromyalgia. This appeal is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee, Counsel