Citation Nr: 21002010 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-18 758 DATE: January 12, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative arthritis of the lumbar spine is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected fibromyalgia is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected chronic fatigue syndrome (CFS) is remanded. FINDING OF FACT Throughout the period on appeal, the evidence does not establish that the Veteran’s service-connected degenerative arthritis of the lumbar spine meets the schedular criteria necessary to warrant an increased disability rating. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71A, Diagnostic Code (DC) 5242. Introduction The Veteran served honorably on active duty in the United States Marine Corps during the Peacetime and Gulf War Era, from October 1986 to October 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and March 2017 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. When these issues came before the Board previously in February 2019, the Board denied entitlement to increased initial disability ratings for service-connected fibromyalgia and CFS and an earlier effective date for arthritis of the lumbar spine. Further, the Board remanded the issue of entitlement to an increased initial disability rating for arthritis of the lumbar spine for additional development, specifically, a new VA examination. The Veteran subsequently appealed the denied issues to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court issued a Memorandum Decision setting aside and remanding the issues of entitlement to increased initial disability ratings for service-connected fibromyalgia and CFS. Pursuant to the Court’s decision, the issue of entitlement to an effective date prior to November 1, 2008, for arthritis of the lumbar spine was deemed abandoned. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015). The Board observes that the additional development ordered in its February 2019 remand regarding entitlement to an increased initial disability rating for arthritis of the lumbar spine has been completed. As such, these issues are again before the Board for further appellate review. REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings Disability ratings are determined by applying a schedule of ratings (Ratings Schedule) that is based on the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered the entire record, but only evidence pertinent to the determination of service connection for the claimed conditions will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative arthritis of the lumbar spine is denied. The Veteran is seeking an increased disability rating for service-connected degenerative arthritis of the lumbar spine, currently rated under DC 5242. His back disability was assigned a 10 percent rating effective November 1, 2008, based upon localized tenderness not resulting in abnormal gait or abnormal spinal contour. X-ray imaging dated July 2009 revealed “[m]inimal degenerative changes … at the lower part of the lumbar spine.” The Veteran’s thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71A. Ratings under the General Rating Formula are made 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. Id. The General Rating Formula provides (in pertinent part) that a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. An increased, 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (2) provides that, for VA compensation purposes, forward flexion of the thoracolumbar spine is zero to 90 degrees. Id. Note (5) provides that ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. Alternatively, back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), whichever results in a higher rating for the Veteran. Id. Ratings under the IVDS Formula are based on frequency of incapacitating episodes, defined as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71A, Note (1). A 10% rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71A. A 20 percent rating is warranted for episodes lasting at least two weeks but less than four weeks during the past 12 months. Id. An increased, 40 percent, rating is warranted for episodes lasting at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is assigned for episodes having a total duration of at least six weeks during the past 12 months. Id. Finally, when evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (diagnostic codes that provide ratings solely based on loss of range of motion (ROM) must consider functional loss and factors of joint disability attributable to pain). 38 C.F.R. § 4.59 provides (in pertinent part) that, “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). As noted above, in February 2019 the Board remanded the issue of entitlement to an increased initial disability rating for arthritis of the lumbar spine for additional development, specifically, a new VA examination. The Veteran underwent an in-person VA examination in April 2019, at which time he reportedly denied experiencing flare-ups or functional loss. ROM measurements were reported as normal including after repeated use over time, specifically, forward flexion of zero to 90 degrees, extension of zero to 30 degrees, right lateral flexion of zero to 30 degrees, left lateral flexion of zero to 30 degrees, right lateral rotation of zero to 30 degrees, and left lateral rotation of zero to 30 degrees. According to the VA examiner, neither pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability with repeated use over time. The examiner noted no pain on examination, including when weight-bearing, and no localized tenderness or pain on palpation or guarding or muscle spasms. Additionally, the VA examiner reported no ankylosis or IVDS with incapacitating episodes. However, the examiner did note that left and right rotation resulted in pain. The Board finds there has been substantial compliance with its prior remand directives and assigns substantial probative weight to the VA examiner’s opinion in this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Nieves-Rodriguez, 22 Vet. App. at 304. The opinion appears to be based upon a thorough in-person examination of the Veteran, consideration of his self-reports, a review of the claims file, the examiner’s expertise, and sound reasoning. The opinion is also consistent with the July 2009 VA examination report indicating, inter alia, no flare-ups or incapacitating episodes and that his back condition “does not really limit his daily activities.” Thereafter, an April 2020 Supplemental Statement of the Case (SSOC) again denied the Veteran’s entitlement to an increased initial disability rating for service-connected degenerative arthritis of the spine. According to the SSOC, the Veteran’s 10 percent disability rating is based upon “functional loss due to painful motion” demonstrated during the VA examination. See 38 C.F.R. § 4.59. The Board has reviewed the Veteran’s statements, as well as, the VA and non-VA medical treatment records which do not contradict the findings of the VA examiners for rating purposes. According to a VA Medical Center (VAMC) treatment note dated October 2013, the Veteran exhibited tenderness to palpation with full ROM in all planes. X-ray imaging dated April 2015 revealed joint space narrowing and mild osteoarthritis at L5-S1, and the Veteran was reportedly non-tender with no scoliosis or kyphosis. In July 2016, a VAMC treatment note reported normal gait and extension limited with pain. However, the evidence of record does not include abnormal ROM findings, favorable or unfavorable ankylosis, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or IVDS resulting in incapacitating episodes sufficient to warrant an increased initial rating. 38 C.F.R. § 4.71A. The Board has also considered the application of other DCs, such as DC 5003 for degenerative arthritis; however, the evidence does not contain x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Id. Finally, the Board has also considered whether additional staged ratings are in order. See Hart, 21 Vet. App. 505. However, the Board finds that such additional staged ratings are not warranted for any distinct periods of time during the period on appeal. Based upon the foregoing, the Board finds that the preponderance of the competent and probative evidence is against the Veteran’s entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative arthritis of the lumbar spine. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 4.3 regarding reasonable doubt are not applicable. As such, the Veteran’s claim for entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative arthritis of the spine is denied. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 20 percent for service-connected fibromyalgia is remanded. According to the Court’s May 2020 decision, the Board erred, inter alia, by: (1) relying on an inadequate January 2015 VA examination to deny a higher rating for fibromyalgia; and (2) failing to provide an adequate statement of reasons or bases for rejecting evidence that the Veteran’s fibromyalgia more nearly approximated the criteria for a higher rating. The Court also held that the Board erred by failing to address VA treatment records dated July 2016 regarding multiple tender points, and by failing to address the various medications prescribed with unsuccessful results. Finally, the Court held that the Board “may not rely on the January 2015 VA examination to adjudicate the [Veteran’s] fibromyalgia claim.” The Board observes that the only other VA examination addressing the Veteran’s service-connected fibromyalgia was conducted in July 2009. Consequently, and after reviewing the Veteran’s VA and non-VA treatment records, the Board finds a new VA examination is necessary before a proper determination regarding the current nature and severity of the Veteran’s fibromyalgia, as well as, the severity level throughout the period on appeal, can be rendered. Furthermore, additional relevant medical evidence including VA-generated treatment records has been added to the claims file since issuance of the Statement of the Case (SOC) in May 2018. Given that this new evidence pertains to the claim and the Veteran has not waived initial RO consideration of same, the RO must first consider this evidence and reevaluate the claim. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Based upon the foregoing, the Board finds that remand is required to afford the Veteran a new VA examination and to procure a medical opinion adequate for rating purposes that comports with, inter alia, the Court’s Memorandum Decision and considers all pertinent evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Entitlement to an initial disability rating in excess of 10 percent for service-connected CFS is remanded. According to the Court’s May 2020 decision, the Board erred, inter alia, by providing an inadequate statement of reasons or bases for finding that the Veteran’s CFS waxes and wanes. Unlike with the fibromyalgia issue addressed above, the Court’s decision does not expressly state that the January 2015 VA examiner’s opinion regarding CFS was inadequate. However, the Board observes that, despite the VA examiner’s opinion that the Veteran’s “signs and symptoms do not meet [the] criteria for [CFS],” the Board granted entitlement to service connection for CFS in March 2016. Thus, the Board finds the January 2015 VA examiner’s opinion is inadequate for rating purposes. The Board also observes that the only other VA examination addressing the Veteran’s service-connected CFS was conducted in July 2009. Consequently, and after reviewing the Veteran’s VA and non-VA treatment records, the Board finds a new VA examination is necessary before a proper determination regarding the current nature and severity of the Veteran’s CFS, as well as, the severity level throughout the period on appeal, can be rendered. Furthermore, additional relevant medical evidence including VA-generated treatment records has been added to the claims file since issuance of the SOC in May 2018. Given that this new evidence pertains to the claim and the Veteran has not waived initial RO consideration of same, the RO must first consider this evidence and reevaluate the claim. See 38 C.F.R. §§ 19.31, 19.37. Based upon the foregoing, the Board finds that remand is required to afford the Veteran a new VA examination and to procure a medical opinion adequate for rating purposes that comports with, inter alia, the Court’s Memorandum Decision and considers all pertinent evidence of record. See Barr, 21 Vet. App. at 311. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected fibromyalgia for the entire period on appeal. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology for the period on appeal must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including both lay and medical evidence, the examiner must provide an opinion as to the severity of the Veteran’s service-connected fibromyalgia for the period on appeal, including all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria including, but not limited to, whether it manifests in 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. In offering the above opinion(s), the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) reports of medications taken by the Veteran (e.g., Cymbalta) that were either ineffective or caused side effects; and (b.) VA treatment records dated April 2011 and July 2016 regarding multiple tender points. The VA examiner may not rely on the January 2015 VA examination report in formulating his or her opinion(s). A complete rationale for all opinions rendered must be provided. If it is not possible to provide the above-requested opinion(s) without resorting to speculation, the examiner must explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the necessary knowledge or training). 2. Schedule the Veteran for a VA medical examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected CFS for the entire period on appeal. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology for the period on appeal must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including both lay and medical evidence, the examiner must provide an opinion as to the severity of the Veteran’s service-connected CFS for the period on appeal, including all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria including, but not limited to, whether it manifests in debilitating fatigue, cognitive impairments, or a combination of other signs and symptoms which either: (a.) Wax and wane and result in periods of incapacitation (which must be expressed in terms of weeks of total duration per/year); or, (b.) Are nearly constant and restrict routine daily activities (which must be expressed in terms of percentage of restriction from pre-illness level). In offering the above opinion(s), the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran’s multiple complaints of chronic, ongoing fatigue. The VA examiner may not rely on the January 2015 VA examination report in formulating his or her opinion(s). A complete rationale for all opinions rendered must be provided. If it is not possible to provide the above-requested opinion(s) without resorting to speculation, the examiner must explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the necessary knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.