Citation Nr: 21000983 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 04-40 924 DATE: January 6, 2021 ORDER Entitlement to an initial disability evaluation in excess of 40 percent for fibromyalgia is denied. FINDINGS OF FACT 1. In a July 2011 rating decision, the Veteran was assigned an initial evaluation of 40 percent for her service-connected fibromyalgia, effective the date of service connection. The assigned rating represents the maximum schedular rating for the issue under diagnostic code 5025. 2. The Veteran is separately service connected and awarded compensable ratings for sinusitis with headaches, an acquired psychiatric disorder, and disorders of the lumbar spine, both knees, both feet, and the left ankle. A 100 percent schedular evaluation has been assigned effective April 30, 2012. 3. The Veteran’s fibromyalgia coupled with her service connected disabilities does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render the application of extra-schedular consideration for her service-connected fibromyalgia. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess of 40 percent for fibromyalgia is moot. 38 U.S.C. §§ 1155; 38C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, DC 5025 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active service from January 1977 to June 1995. In May 2020, the Board remanded the Veteran’s claim for additional development. The Board finds that there was substantial compliance with the May 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). She has indicated that the current appeal is limited to this issue. Review of the record reveals that the Veteran is separately service connected and awarded compensable ratings for sinusitis with headaches, an acquired psychiatric disorder, and disorders of the lumbar spine, both knees, both feet, and the left ankle. A 100 percent schedular evaluation has been assigned effective April 30, 2012. Increased Ratings 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. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran’s fibromyalgia has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5025. A 40 percent evaluation is assigned where there is evidence 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: that are constant, or nearly so, and refractory to therapy. Entitlement to an initial disability evaluation in excess of 40 percent for fibromyalgia. In a February 2003 rating decision, the Veteran was granted an initial rating of 10 percent effective July 13, 2001 for her fibromyalgia based on the following diagnosed medical history: widespread body pain; early morning stiffness; muscle spasms in the legs; sleep disturbances; headaches; and fatigue. Subsequent ratings have had the effect of assigning a 40 percent rating for her fibromyalgia based findings which diagnosed the following medical history: continuous daily medication; leg cramps; daily fatigues; daily headaches; nausea; and missed days of employment. Ultimately the maximum 40 percent rating was assigned effective the date of service connection. The Board has considered whether there are any other potentially applicable Diagnostic Codes, but has found no other Diagnostic Code that would result in a more favorable finding. The Veteran has been in receipt of the highest available rating for fibromyalgia since she was granted a total initial rating. The assigned rating represents a total grant of all benefits sought on appeal for the issue. She is, as noted above, separately service connected for impairment of multiple joints, depression and sinusitis with headaches contemplated in that rating. As such, her complaints of these symptoms are considered in those ratings and do not form a basis for a higher rating for fibromyalgia. As noted this is the maximum schedular rating for these symptoms under this code. As a result, the Board considers whether there is evidence to remand this issue for consideration of a TDIU rating on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b). cases may be submitted to the Director of the Compensation Service for extra-schedular consideration. This case has not been submitted for extra-schedular consideration because the evidence fails to show the symptoms are outside the code such as to render application of the regular schedular provisions impractical. As noted, multiple complained of symptoms are otherwise already considered and compensated. In a March 2018 VA fibromyalgia examination, the examiner diagnosed the Veteran with fibromyalgia. The examiner noted that the Veteran was prescribed continuous medication and regularly undergoes physical therapy treatment for her symptomology. The examiner noted that the Veteran’s fibromyalgia is refractory to therapy. The Veteran reported headache symptoms more occurring over half of the month. The following symptoms were also diagnosed: widespread musculoskeletal pain’ stiffness; fatigue; headaches; depression; anxiety; irritable bowels; loss of memory, and concentration. Concerning functional and occupational limitations, the Veteran’s reported that her fibromyalgia results in impaired concentration, an inability to read and retain material, and constant body ache which interferes with her thinking. The examiner also noted no record of hospitalizations pertaining the Veteran’s fibromyalgia. In a November 2019 VA addendum opinion, the examiner was asked to offer an opinion as to whether the Veteran’s fibromyalgia interferes with her employment. The examiner reviewed the record and opined that the Veteran’s fibromyalgia symptoms are approximately fifteen days a month which would cause moderate to marked interference with concentration on the job, and this would be expected to affect her performance on the job. The examiner also noted that the Veteran’s service connected disorders all combine to account for the sustaining of the Veteran’s fibromyalgia symptoms. As noted above, concerning functional and occupational limitations, the VA examiner diagnosed that her fibromyalgia results in impaired concentration, an inability to read and retain material, and constant body aches which interferes with her thinking. (Again, many of these findings are contemplated in the other service connected disorders assigned compensable ratings.) The examiner also noted that the Veteran’s fibromyalgia resulted in fifteen days a month which cause moderate to marked interference with concentration on her job. The examiner explained that her would be expected to affect her performance on the job. The examiner also noted that the Veteran’s service connected disorders all combine to account for the sustaining of the Veteran’s fibromyalgia symptoms. In addition, the Veteran reported that her daily exacerbations are precipitated by overexertion, attempts to exercise, and emotional stress. Nevertheless, the Board finds that the pertinent and more probative evidence of record does not demonstrate that the Veteran’s fibromyalgia coupled with her service connected disabilities present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render the application of extra-schedular consideration for her service-connected disabilities. As noted, a 100 percent schedular rating has been assigned since 2012, for the multiple disabilities. The Board would note that “[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1. As a result, the Board concludes that the disability evaluations assigned to the Veteran’s disorders under the VA Schedule for Rating Disabilities accurately reflect the Veteran’s overall impairment to her earning capacity due to her service-connected disabilities on an extra-schedular basis is not warranted. The Board concludes that this claim on appeal should not be submitted for extra-schedular consideration. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.