Citation Nr: 18160818 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-05 815 DATE: December 27, 2018 ORDER Entitlement to service connection for fibromyalgia, secondary to service-connected sleep apnea on a causation basis, is granted. Entitlement to service connection for chronic fatigue syndrome, secondary to service-connected sleep apnea on a causation basis, is granted. Entitlement to a rating of 40 percent, but no higher, for lumbar strain is granted, subject to controlling regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s current fibromyalgia is caused by service-connected sleep apnea. 2. The Veteran’s current chronic fatigue syndrome is caused by service-connected sleep apnea. 3. The Veteran’s service-connected lumbar strain symptoms have throughout the appeal period more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, but have not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes due to intervertebral disc syndrome (IVDS) of at least six weeks during the previous 12 months. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for fibromyalgia on a secondary, causation, basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303, 3.310 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for chronic fatigue syndrome on a secondary, causation, basis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 3. The criteria for an initial rating of 40 percent, but no higher, for lumbar strain have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to January 1999. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. § 5107(b). 1. Fibromyalgia and Chronic Fatigue Syndrome The Veteran seeks service connection for fibromyalgia and chronic fatigue syndrome disabilities. Specifically, he contends that such disabilities are secondary to his service-connected sleep apnea disability. For the following reasons, the Board finds that service connection for fibromyalgia and chronic fatigue syndrome, secondary to sleep apnea is warranted. The record on appeal reflects diagnoses for fibromyalgia and chronic fatigue syndrome. Specifically, a February 2014 private treatment record and March 2014 VA examination report shows a diagnosis of fibromyalgia. Additionally, July 2013 and March 2018 private treatment records show a diagnosis of chronic fatigue syndrome. In March 2014, the Veteran underwent a VA medical examination. The examiner indicated that he could not determine if the Veteran’s fibromyalgia was secondary to the obstructive sleep apnea. The examiner explained that although those conditions do frequently occur together, there was a lack of pathophysiological connection indicating that the fibromyalgia was caused by the obstructive sleep apnea in this case. Therefore, it is less likely than not that the Veteran’s fibromyalgia is the result of his sleep apnea. The examiner further opined that it is less likely than not that the Veteran’s chronic fatigue syndrome is the result of his sleep apnea, as there was no diagnosis of chronic fatigue syndrome. The examiner noted that it is more likely that the history of fatigue is related to obstructive sleep apnea, and there is no diagnosis of chronic fatigue syndrome, as chronic fatigue syndrome is a diagnosis of exclusion. In support of his claim, the Veteran submitted a letter from private doctor W.R. dated August 2017, who opined that it is more likely than not that the Veteran’s sleep apnea is causing him to experience fibromyalgia and chronic fatigue. In a March 2018 private medical record, doctor R.C. reported that a Medline search was conducted for an association between obstructive sleep apnea and fibromyalgia, chronic fatigue syndrome and vertigo. He noted that the evidence-based peer-reviewed medical articles clearly support a causal association between obstructive sleep apnea and fibromyalgia, chronic fatigue syndrome and vertigo. Doctor R.C. further noted that it was his opinion that the Veteran’s service-connected sleep apnea is more likely than not the cause of fibromyalgia, chronic fatigue syndrome and vertigo. The private nexus opinions indicating that the Veteran’s fibromyalgia and chronic fatigue syndrome were caused by his service-connected sleep apnea provides a sufficient basis to grant service connection for fibromyalgia and chronic fatigue syndrome. To the extent that this conflicts with the VA examiner’s finding of no diagnosis of chronic fatigue syndrome, as well as, no causal relationship between service-connected sleep apnea, and fibromyalgia and chronic fatigue syndrome disabilities, the reasonable doubt created by this conflicting evidence must be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for fibromyalgia and chronic fatigue syndrome, secondary to sleep apnea, is therefore warranted. Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. Lumbar Strain The Veteran’s service-connected lumbar strain, has been assigned a 20 percent rating under Diagnostic Code 5237. VA’s Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. In that regard, the Board notes that the Veteran has been rated separately for sciatic and femoral radiculopathy of the right and left lower extremities. The Veteran has not appealed the ratings assigned for those disabilities. Under Note 5, unfavorable ankylosis is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran was afforded a VA medical examination in March 2014. He reported that his lumbar strain had worsened since his prior examination, and it had been ongoing for 18 months. The Veteran noted that he had been receiving care from a chiropractor since September. He further noted daily pain and that he was taking Tramadol. The Veteran denied having flare-ups that impacted the function of his thoracolumbar spine. His lumbar forward flexion was to 60 degrees with pain. He performed repetitive use testing with no additional limitation in range of motion. The Veteran exhibited less movement than normal and pain on movement. In reference to degrees of additional range of motion loss due to pain on use or during flare-ups, the examiner noted that the pain from this condition makes it difficult for the Veteran to perform physical activity when the lumbar spine is used repetitively over time, but he could not determine the degree of range of motion loss after repetitive movement without resorting to mere speculation. The examiner noted that such an opinion was not feasible, since there was no additional loss experienced on the exam. The examiner indicated that the Veteran’s back disability did not produce localized tenderness, pain on palpation, guarding, muscle spasm, or atrophy. The Veteran’s muscle strength was normal. Reflex examination was normal, and there was no evidence of neurological abnormalities. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not use assistive devices. The examiner concluded that the Veteran’s back condition impacted his ability to work. Specifically, the Veteran could lift 40 pounds daily; stand or walk for one hour at one time; sit for 45 minutes at one time; walk or stand 5 hours during an 8-hour day; and sit 4 hours during an 8-hour day. In a March 2018 private treatment record, the Veteran’s lumbar strain exhibited symptoms of tenderness and pain on palpation. There was some muscle spasm present in the right lumbar paraspinous muscles. The Veteran’s range of motion of the thoracic spine was flexion 8 and 10 degrees. His range of motion of the lumbar spine was 36 and 38 degrees. The neurological examination indicated that the Veteran was alert, oriented, cranial nerves were intact, and there was no focal motor or sensory deficits. In this case, although the range of motion testing conducted at the March 2014 VA examination did not reflect flexion of the thoracolumbar spine limited to 30 degrees or less, the March 2018 private treatment record indicates that the Veteran’s thoracic spine flexion was limited to 8 to 10 degrees and the lumbar spine to between 36 and 38 degrees. Thus, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s lumbar spine disability more nearly approximate flexion limited to 30 degrees or less. As the reasonable doubt created by this approximate balance in the evidence be resolved in favor of the Veteran, entitlement to a rating of 40 percent is warranted for the lumbar sprain disability. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Further, with regards to the VA examination, to the extent that any of the range of motion findings do not comport with the holding in Correia and the mandates of 38 C.F.R. § 4.59, the Board finds it is harmless error. Here, such findings could not result in increased ratings for the Veteran’s back disability as the Veteran is being awarded the maximum rating for limitation of motion for that disability for the entirety of the period on appeal. A rating higher than 40 percent requires ankylosis. There is no lay suggestion of any ankylosis, let alone any medical evidence of such. Therefore, a rating in excess of 40 percent is not warranted. Further, the Board notes that as 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion, and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). A rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Indeed, there is no evidence of any IVDS and such has even been ruled out at the Veteran’s VA examination. Further, there is no evidence that any IVDS resulted in incapacitating episodes requiring bedrest as ordered by a physician. As such, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. In addition, as described above, Note 1 of the General Rating Formula instructs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. However, a review of the evidence of record does not reveal any competent evidence of any neurologic abnormalities associated with the service-connected back disability. Indeed, objective testing at the Veteran’s VA examination and March 2018 private evaluation did not show any associated neurologic abnormalities. As such, Note 1 of the General Rating Formula is not for application. (Continued on the next page)   For the foregoing reasons, after affording the Veteran the benefit of the doubt, a 40 percent rating, but no higher, for lumbar strain, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel