Citation Nr: 21065037 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 11-08 625 DATE: October 22, 2021 ORDER Entitlement to an initial increased rating of 40 percent for muscle and joint stiffness prior to July 14, 2020 is granted. Entitlement to an increased rating in excess of 40 percent for muscle and joint stiffness from July 14, 2020 is denied. REMANDED Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's muscle and joint stiffness has manifested by constant, or nearly so, symptoms refractory to therapy. 2. The maximum schedular evaluation available for muscle and joint stiffness is 40 percent, and the criteria for such address the all the Veteran's related complaints and symptoms. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating of 40 percent for fibromyalgia, prior to July 14, 2020 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 4.71a, Code 5025. 2. The criteria for a rating in excess of 40 percent for fibromyalgia, since July 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.21, 4.71a, Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to November 1991 and from September 2010 to September 2011, with service in Southwest Asia. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In a November 2018 decision, the Board denied the Veteran's claims for entitlement to an increased evaluation for muscle and joint stiffness, among other issues. The Veteran appealed the case to the Court of Appeals for Veterans Claims (Court). In a September 2019 memorandum decision, the Court vacated that part of the Board's decision which denied entitlement to increased evaluations for muscle and joint stiffness and remanded the matter to the Board for readjudication. The matter was vacated because the Board erred in failing to address the Veteran's subjective reports of symptomatology which contradicted findings of physical examinations. The Board in turn remanded the matter to the AOJ in April 2020 for development consistent with the Court's findings. In March 2021, the AOJ issued a rating decision increasing the Veteran's evaluation of muscle and joint stiffness from 20 percent to 40 percent, effective July 14, 2020. The issue remains on appeal because the decision did not constitute full grants of the benefits sought. In June 2021, the Board remanded the matter for additional development. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the additional matters addressed by the Court, service connection for tinnitus and for a low back disability, have been granted in full and are no longer on appeal. However, a claim for TDIU is inferred as part and parcel of the claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is seeking an increased initial evaluation in excess of 20 percent prior to July 14, 2020, and in excess of 40 percent thereafter, for his muscle and joint stiffness. The Veteran's muscle and joint stiffness is rated under 38 C.F.R.§ 4.71a, Diagnostic Codes 8850-5025. Code 8850 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the musculoskeletal diseases found in VA's Rating Schedule. Diagnostic Code 5025 is the rating code for fibromyalgia. This is the most appropriate Code, selected based on "the functions affected the anatomical localization and symptomatology." 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.71a, Diagnostic Code 5025, fibromyalgia is associated 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. If symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but present more than one-third of the time, a 20 percent rating is assigned. A maximum 40 percent rating is assigned when symptoms are constant, or nearly so, and are refractory to therapy. "Widespread pain" means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, Code 5025 and Note. The Veteran has received medical treatment from private healthcare providers and VA medical centers. The Veteran's treatment records indicate that the Veteran's history of muscle and joint pain, along with headaches and anxiety, exists since at least 1997. X-rays in 2008 showed normal knees, elbows, and lumbar spine. The Veteran has consistently complained of headaches or migraines. Since 2007, the Veteran has been prescribed Cymbalta, first for anxiety concerns and later, in part, for fibromyalgia symptoms. In 2016, for example, the Veteran reported pain in his knees and elbows that was not arthritis, and the examiner discussed the benefits of the Cymbalta. In February 2007, the Veteran's wife of 34 years submitted a statement of support. She stated that her husband has had symptoms since returning from the Gulf War. She stated that the Veteran's muscles and joints are "so stiff that when he bends to try and touch his toes, his hands can hardly pass his knees." She also stated that his symptoms have worsened throughout the years and that there are extended periods of times when he cannot "get up, move around, or function." In October 2008, the Veteran was afforded a VA examination. He reported muscle and joint pain in his back, neck, knees, and elbows. He reported occasional treatment with over-the-count pain medication. He also reported numbness in his fingers. In November 2008, the Veteran reported pain and stiffness in his knees and elbows with weekly flare-ups that lasted hours. In a post-deployment physical in 2012, muscle pain or arthritis was noted. The Veteran continued to take Cymbalta. In October 2015, the Veteran was afforded a VA examination for Gulf War Syndrome. The examiner opined that the Veteran suffered from a cluster of symptoms that are part of the Gulf War Syndrome. The Veteran reported that he suffered from fatigue, stiffness, and widespread musculoskeletal pain and tender points. In a Notice of Disagreement from November 2015, the Veteran stated that that his widespread musculoskeletal pain and tender points with fatigue, stiffness, and sleeplessness were not episodic. He stated that his symptoms were constant and refractory to therapy. He reported that he was prescribed Cymbalta and pain medication but did not experience relief of his symptoms. In February 2020, the Veteran's spouse submitted another statement. She stated that her husband's pain is constant, consistent, and not relieved with treatment. She reported that during flare-ups, the Veteran is barely able to move. The Veteran's three adult children also submitted statements. Each stated that the Veteran has constant muscle and joint stiffness and his pain that is not relieved by therapy or medication. All the statements were identical; two of the children even listed their ages as the same, though other records show them to have been born 3 years apart. In July 2020, the Veteran was afforded a VA examination. The Veteran reported pain and stiffness in muscles and joints on all extremities. For treatment, the Veteran reported taking meloxicam and Cymbalta as well as attending physical therapy and exercising. The examiner noted that the Veteran's symptoms of stiffness, muscle weakness, fatigue, sleep disturbances, tender points were constant, or nearly constant, and required continuous medication to control symptoms. The examiner provided a diagnosis of fibromyalgia and noted there was no change in the diagnosis of muscle and joint stiffness. In December 2020, the Veteran was afforded a VA examination. The Veteran reported symptoms of stiffness, diffuse pain in the occipital area, neck, back, shoulders, arms, elbows, and knees. The Veteran also reported feeling fatigued and a loss of dexterity in his hands. The examiner noted widespread musculoskeletal pain that was constant or nearly constant with additional symptoms of anxiety; depression; fatigue; headache; paresthesias; sleep disturbance; stiffness; and requiring continuous medication for control. The Veteran, as a lay person, is competent to report his symptoms of pain and stiffness and testify about his symptoms. The Veteran's family members are also competent to testify about the Veteran's symptoms that they have witnessed. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the duplicative statements of his children are given less weight in this instance. Veterans with chronic multi-symptom illness will have fatigue, pain, and disability out of proportion to physical findings. 38 C.F.R. § 3.317(2)(ii). In this case, the Veteran's reported symptoms contradict findings in his physical examinations. In 2008, the Veteran's x-rays showed normal knees, elbows, and lumbar spine despite the Veteran's complaints of pain in his joints and back. Moreover, the Veteran has consistently reported widespread muscle and joint stiffness and pain since 1997. The Veteran has also been on medication since 2007 and attended physical therapy in 2006 and 2008 but reports that he still experiences near constant stiffness in his joints. The Veteran's wife submitted statements that she has witnessed the Veteran experiencing joint stiffness since returning from the Gulf War and that his symptoms cause limited range of motion and loss of mobility. The evidence of record establishes the Veteran has experienced widespread muscle and joint stiffness prior to and since July 14, 2020. The Veteran's competent and credible statements regarding his near constant symptoms of muscle and joint stiffness, in addition to his wife's competent and credible statements, weigh in favor of assignment of a 40 percent disability rating prior to July 14, 2020. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, resolving all reasonable doubt in favor of the Veteran, an initial increased disability evaluation of 40 percent is warranted prior to July 14, 2020. The 40 percent rating since that date is undisturbed, and no higher schedular rating may be assigned at any point during the appeal. At a 40 percent disability rating for muscle and joint stiffness, the Veteran is already in receipt of the maximum schedular evaluation that is available for fibromyalgia for the entire period on appeal. No other diagnostic code is appropriate, as Code 5025 specifically compensates the reported symptoms of fibromyalgia throughout the appeal period, including the widespread pain and fatigue the Veteran experiences. The Board further finds that no separate rating is warranted under any other diagnostic code at this time; the Veteran's low back disc disease and related radiculopathies are separately service-connected and compensated. Thus, the 40 percent rating previously assigned under Diagnostic Code 5025 specifically contemplates the Veteran's symptoms and compensates him for such throughout. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Here, the service-connected condition is rated as fibromyalgia, which specifically considers, as is noted above, all of the Veteran's reported symptomatology. Therefore, extraschedular evaluation is not appropriate. As the Veteran's service-connected muscle and joint stiffness has been assigned the maximum schedular rating available for the entire rating period, and there are no unaccounted for signs or symptoms, the Board finds there is no legal basis upon which to award a yet higher evaluation. Therefore, entitlement to a rating in excess of 40 percent for muscle and joint stiffness is not warranted at any point during the appeal. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND As is noted above a claim for TDIU is inferred as part of the claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ considered such, but found in August 2021 that the Veteran was not alleging unemployability due to service-connected conditions. Though the Veteran has not made an explicit allegation to that effect, the facts and circumstances of the appeal require consideration of TDIU. Specifically, the statements of the Veteran and his wife indicate that the fibromyalgia-like symptoms cause marked, near constant pain which impacts his daily functioning. He is "barely able to move." It is also reported in treatment records that beginning in 2020, the Veteran stopped working full-time as a warehouse equipment operator, and began working part-time as a bus driver. It is unclear if the change in employment was due to disability, but the doubt must be resolved in favor of the Veteran. The Board recognizes that the Veteran has reported that his driving is impacted by nonservice-connected cervical spine problems, but he is able to work with such, indicating that other conditions have a greater potential impact. He stated he has missed several weeks of work over the past year. On remand, additional information is required regarding the Veteran's employment history, as well as findings addressing occupational function related to the service-connected conditions. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he return a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Failure to return such may negatively impact the claim. 2. Schedule the Veteran for a VA general medical examination. The examiner must comment on the impact of the service connected disabilities, individually and in combination, on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). His ability to work full-time as opposed to part time should be addressed. 3. Adjudicate the claim for TDIU; if the benefit sought remains denied, issue a supplemental statement of the case and, after appropriate time for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.