Citation Nr: 21001085 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-09 442 DATE: January 7, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for fibromyalgia is dismissed. REMANDED Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. INTRODUCTION The Veteran had active service from November 1979 to January 1992. FINDING OF FACT The Veteran’s service-connected fibromyalgia has been assigned a 40 percent rating, which is the maximum rating authorized under Diagnostic Code 5025 (2020). CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation in excess of 40 percent for fibromyalgia. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code 5025 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the pertinent facts in this case are not in dispute, and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim decided herein, and no further action is required to comply with VA’s duties to notify and assist under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2020). See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Factual Background and Analysis The Veteran was awarded service connection and a 10 percent rating for his fibromyalgia (previously diagnosed as arthralgias of all joints and back) in an October 2010 rating decision. He initiated a timely appeal of the assigned disability evaluation in November 2010. By way of October 2019 and September 2020 VA examinations, the examiners concluded the Veteran warranted a diagnosis of fibromyalgia, which was a correction of the prior diagnosis of arthralgias of all joints and back. In an October 2020 rating decision, the RO assigned a 40 percent disability rating for the Veteran’s fibromyalgia throughout the entire period under appeal. The Veteran’s service-connected fibromyalgia is evaluated as 40 percent disabling, which is the maximum schedular rating available for such disability. See 38 C.F.R. §4.71(a), Diagnostic Code 5025 (2020). As there is no legal basis upon which to award a higher schedular rating for fibromyalgia, the Veteran’s claim for such benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the claim must be dismissed. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s remaining claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of a March 2020 decision, the Board found a new VA examination was necessary in order to assist in determining the etiology of the Veteran’s upper and lower extremity peripheral neuropathy. In particular, the Board noted a September 2019 VA examination, wherein the examiner found the Veteran’s upper and lower extremity peripheral neuropathy was most likely consequentially related to his non service-connected diabetes mellitus and multiple sclerosis (MS); however, the examiner failed to explain how or why they came to this conclusion. In this regard, the Board also noted the Veteran’s reports of neurological manifestations that began years prior to his diagnosis of diabetes or MS. The Board also found the September 2019 VA examiner’s medical opinion to be insufficient because, although the examiner indicated an October 2017 medical opinion relating the Veteran’s peripheral neuropathy to possible toxin exposure in Iraq was merely speculative, the examiner did not discuss the article cited by the October 2017 VA examiner. As such, the Board remanded the issues for another VA examination and medical opinion. The Veteran underwent a VA peripheral nerves examination in September 2020. Following his examination the examiner found the Veteran’s peripheral neuropathies were less likely than not incurred in service. The examiner cursorily stated medical records reviewed did not show substantial evidence the conditions occurred in service. The examiner, like the September 2019 VA examiner failed to state how or why the Veteran’s reported toxin exposures in service could not have caused his current disabilities. Further, the examiner again found the Veteran’s diabetes and MS were more common or obvious causes of his peripheral neuropathy. However, the examiner also failed to acknowledge or discuss the Veteran’s neurological manifestations occurrence years prior to his diagnosis of either diabetes or MS. The examiner further failed to acknowledge or discuss the article cited in the October 2017 medical opinion. Based on the foregoing, the Board finds substantial compliance with the March 2020 Board instructions has not been achieved. As such, a new examination and medical opinion must be obtained. Accordingly, this case is REMANDED for the following actions: Afford the Veteran a VA examination by a Neurologist with sufficient expertise, who has not previously examined this Veteran, to determine the nature and etiology of the Veteran’s upper and lower extremity peripheral neuropathy disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether any diagnosed upper or lower extremity peripheral nerve disorder at least as likely as not (a 50 percent probability or greater) originated during the Veteran’s period of active service or is otherwise etiologically related to his active service, to specifically include his reported exposures to toxins therein. In this respect, the examiner is asked to specifically consider and expressly discuss the following: a) Consider that the Veteran reported suffering from neurological symptoms in his legs beginning in the late 1990s, presumably prior to being diagnosed with diabetes mellitus and prior to his diagnosis of multiple sclerosis. Also consider the Veteran’s ongoing report of neurological symptoms in his upper and lower extremities with a general absence of objective findings on examination. Are the Veteran’s reported neurological symptoms in this upper and lower extremities part of a medically unexplained chronic multi-symptom illness or an otherwise undiagnosed illness due to his service in the Persian Gulf? If the answer is no, in that his symptoms are due to a diagnosed disability unrelated to service in the Persian Gulf, a full rationale should be provided. b) Review and discuss the study referenced by the October 2017 VA examiner. Determine whether it is it at least as likely as not (e.g., 50 percent or greater probability) that the Veteran’s neurological symptoms of his upper and/or lower extremities are etiologically related to his periods of active duty service, including environmental exposures during service during the Persian Gulf War, when considering this cited medical study. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.