Citation Nr: 21070031 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-18 758 DATE: November 22, 2021 ORDER Subject to the laws and regulations governing the award of VA monetary benefits, an initial rating of 40 percent, but no more, for fibromyalgia is granted. Subject to the laws and regulations governing the award of VA monetary benefits, an initial rating of 40 percent, but no more, for chronic fatigue syndrome (CFS) prior to February 5, 2021, is granted. A rating in excess of 60 percent for CFS from February 5, 2021, is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's fibromyalgia resulted in widespread musculoskeletal pain and tender points, sleep disturbance, stiffness, paresthesias, headaches, and IBS that was nearly constant and refractory to medications prescribed to treat the symptoms 2. Prior to February 5, 2021, the Veteran's CFS resulted in debilitating fatigue and cognitive impairment that were nearly constant and restricted his routine daily activities. 3. From February 5, 2021, the preponderance of the evidence is against a finding that the Veteran's CFS resulted in debilitating fatigue and cognitive impairment restricting his routine daily activities almost completely and occasionally precluding self-care. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no more, for fibromyalgia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.88b, Diagnostic Code (DC) 5025. 2. The criteria for an initial rating of 40 percent, but no more, for CFS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, DC 6354. 3. The criteria for a rating in excess of 60 percent for CFS from February 5, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, DC 6354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1986 to October 2008. These matters come before the Board of Veterans Appeals (Board) on appeal from March 2017 and May 2021 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously appointed a state veterans' organization as his power of attorney but indicated in September 2015 that he was revoking that appointment. He stated that he wanted an anonymous veterans' agent for his representative, but did not submit a VA form nominating anyone and indicated in July 2018 that he wanted to proceed on his claims without any representative. Consequently, he is unrepresented in the current appeal. Service connection for fibromyalgia was granted at 20 percent disabling and service connection for CFS was granted at 10 percent disabling, effective November 1, 2008. Pursuant to a May 2020 Court of Appeals for Veterans Claims (Court) Memorandum Decision and a subsequent January 2021 Board remand, the rating for CFS was increased to 60 percent and the rating for fibromyalgia was increased to 40 percent, effective February 5, 2021, in a May 2021 rating decision. At the outset, the Board notes that the January 2021 remand requested that new VA examinations be conducted by physicians to determine the current extent and severity of the Veteran's service-connected CFS and fibromyalgia. However, no reason for the request of physicians was provided by the Board, nor was this guidance provided by the Court. The February 2021 VA examinations were conducted by a VA nurse practitioner. All VA examiners are presumed to be competent - and their medical opinions, in turn, are assumed to be adequate - absent specific evidence to the contrary. See Nohr v. McDonald, 27 Vet. App. 124, 131-32 (2014) (quoting Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir.2013) ("It is now well settled that 'VA benefits from a [rebuttable] presumption that it has chosen a person who is qualified to provide a medical opinion in a particular case.'"). See also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) ("[A]ny challenge 'to the expertise of a VA expert' must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion."); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner); accord Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that, under the presumption of regularity in the administrative process, the Board is entitled to assume the adequacy of VA examinations and opinions absent specific evidence to the contrary); see also Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019) (when a challenge to the competency of a medical examiner is raised, the Board must make a factual finding as to whether the examiner is competent). Here, there is nothing in the January 2021 remand that demonstrated why a physician instead of a nurse practitioner qualified to perform VA Compensation and Pension examinations was needed to perform the requested examinations. Further, there is nothing on the face of the examination reports that indicates the nurse practitioner was in any way unqualified to perform the evaluations nor that any necessary testing or opinions were not provided. Accordingly, the Board finds that the nurse practitioner was competent to perform the requested examinations. Given the presumed competency of those VA examiners qualified to perform Compensation and Pension examinations, the lack of any specificity as to why a physician was requested, and the lack of any indication that the examinations were somehow inadequately conducted by the nurse practitioner, the Board finds that substantial compliance with the remand requests has been accomplished and the Board may proceed to consider the claim without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran appealed the initial ratings awarded for his service-connected CFS and fibromyalgia. As such, the Board will consider the extent and severity of the disabilities throughout the entire appeal period stemming from the initial effective date, November 1, 2008. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's fibromyalgia is rated under 38 C.F.R. § 4.71a, DC 5025. His CFS is rated under 38 C.F.R. § 4.488b, DC 6354. DC 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) 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, is to be rated 10 percent disabling if the symptoms require continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to DC 5025 provides that 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, DC 5025. Under DC 6354, a 10 percent disability rating is granted for symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. A 20 percent disability rating evaluation is assigned for symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent disability rating is assigned for symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent disability rating is assigned for symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A maximum, 100 percent, disability rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. For the purpose of rating chronic fatigue under DC 6354, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. Note, 38 C.F.R. § 4.88b, DC 6354. Turning to the evidence of record, a VA treatment record from June 2009 reflected the Veteran's complaints of generalized joint pain in his ankles, knees, hands, shoulders, hips, and back which was throbbing, aching, shooting, and constant, averaging a 5 out of 10 in severity. He noted that the pain increased with damp, cold, and humidity. He also experienced stiffness throughout his body. He took over-the-counter aspirin for pain as needed. The Veteran underwent a VA examination in July 2009. The examiner indicated that he had debilitating fatigue which was constant or nearly so and that it did not wax and wane. This resulted in a 30 percent restriction of activities. Specific examples of restricted activities included less sport and reduced mowing grass. His symptoms included generalized muscle aches in the upper and lower extremities and trunk, constant sleep disturbance, occasional inability to concentrate, occasional forgetfulness, and occasional confusion. Time lost from work during the last 12-month period was zero. The Veteran stated that his pain severity fluctuated with onset at the end of each day and worsened with increased activity and damp weather. He was not currently undergoing treatment for his symptoms. The examiner did not diagnose CFS or fibromyalgia and determined that he did not have debilitating fatigue that was severe enough to reduce or impair average daily activity below 50 percent of his pre-illness activity level. In September 2010, the Veteran reported to VA clinicians that he had chronic pain "all over his body," including in his shoulders, elbows, hands, knees, hips, low back, and ankles. He also had developed frequent headaches, difficulty sleeping, and an upset stomach. He experienced morning stiffness, as well. Upon observation, he had point tenderness at the back, on his trapezius, on his lateral epicondyle, and his medial knee. He was diagnosed with chronic polyarthralgia, myalgia associated with gastrointestinal symptoms, difficulty sleeping, and headaches. Fibromyalgia was suspected. A flare-up of the Veteran's fibromyalgia occurred in April 2011 lasting 3 to 4 weeks with increased joint pain, fatigue, nausea, dizzy spells, and gastrointestinal symptoms. Upon evaluation, he had generalized tender spots on his neck, lower back, elbows, knees, and ankles. Later in April 2011, clinicians noted fatigue and diffuse body pain in the Veteran's lower and upper body. Fourteen of the 18 tender points recognized by the American College of Rheumatology (ACR) and some control points were positive. It was noted that he had tried Cymbalta for his symptoms with little effect. In May 2012, the Veteran started attending a regular fibromyalgia pain group. In June 2012, clinicians stated that he had chronic fatigue and had fallen asleep a couple of times at work. His headaches increased, he had flares of back pain, and had numbness in his hands with loss of grip. He was diagnosed with CFS. VA providers noted in October 2013 that the Veteran experienced diffuse painful joints, muscle cramps, and tightness, most prominently in his elbows, knees, and low back. Pain improved with activities and warmth. Mornings and wet weather often exacerbated his pain. He described his pain as a 4 to 5 out of 10 in severity. Upon observation, tenderness to palpation was noted in the paraspinal muscles of the lumbar and cervical spine. VA examinations were conducted in January 2015. The Veteran described fatigue that was constant, sometimes better with daytime naps. He reported poor sleep, with only 3 to 4 hours of sleep per night, including due to joint pain and back pain. He sometimes fell asleep during the day due to exhaustion and when he woke up, he felt slightly refreshed. Pain was noted in his knees, ankles, hips, shoulders, elbows, lower back, and neck that was constant and worse in damp and cold weather. He also had pain in his muscles of both calves, the sides of the neck, the shoulders, and the lower back which was constant and varied from 5 to 8 out of 10. The Veteran stated that his symptoms had worsened. He did not exercise but walked several blocks daily without difficulty. Due to his pain and fatigue, he lost 15 days from work the prior year. Regarding his CFS, the examiner noted that no continuous medication was required for control of the Veteran's symptoms. The examiner determined that he did not have any findings, signs, or symptoms attributable to CFS and no cognitive impairment due to CFS. Symptoms he experienced were nearly constant but did not restrict routine daily activities as compared to the pre-illness level, did not result in periods of incapacitation, and did not cause debilitating fatigue reducing daily activity level to less than 50 percent of pre-illness level. Regarding his fibromyalgia, the examiner noted that no continuous medication was required for control of the Veteran's symptoms and he was not currently undergoing treatment. The examiner stated that his symptoms were not refractory to therapy. He did not have any findings, signs, or symptoms attributable to fibromyalgia and no tender/trigger points for pain present. In April 2015, the Veteran told treating clinicians that his pain had worsened recently. He had tried several medications but had discontinued them either due to side effects or because they offered no relief. The pain was diffuse in his hands, feet, lower back, neck, shoulders, spine, down both legs, knees, and ankles. The pain was described as constant and worse with walking or certain movements. The pain was so bad at times he felt dizzy. He always felt tired and fatigued, and continued to have trouble falling and staying asleep. In May 2015, he began regular VA physical therapy and in June 2015 he began acupuncture to treat his symptoms. In a June 2015 treatment record, the Veteran reported that his pain level had been a 4 to 5 out of 10 but over the past several months it had increased to 7 to 9 out of 10. It worsened in damp, cold weather and improved with hot showers, staying warm, and moving around. He also described decreased concentration and focus and difficulty falling and staying asleep The Veteran told treating clinicians in July 2015 that he lived through his pain. It interfered with his activities but did not stop him from working. However, on weekends, he had days when he stayed in bed. Providers noted that his trapezius and lower neck had multiple trigger points and increased tone. In February 2016, the Veteran reported that his current pain was unacceptable and that his highest comfort level was a 3 out of 10. In subsequent treatment records from February 2016, March 2016, April 2016, May 2016, June 2016, and July 2016, clinicians noted that he had tender points in his lumbar paraspinals, bilateral upper trapezius muscles, and cervical paraspinal muscles. In October 2020, the Veteran reestablished care with a VA pain clinic. He stated that his pain complaints had gradually worsened and had significant impacts. The Veteran underwent VA examinations in February 2021, as well. He stated that his symptoms of fatigue, pain all over the body accompanied with headaches, constant diarrhea with bloating and pressure, and pressure in his eyes had worsened since onset. The examiner associated symptoms of debilitating fatigue, nonexudative pharyngitis, generalized muscle aches or weakness, fatigue lasting 24-hours or longer after exercise, headaches, migratory joint pain, neuropsychological symptoms, and sleep disturbance associated with CFS. The Veteran stated that he always felt too tired with muscle pain and weakness causing difficulty doing daily activities. He became too tired after walking 10 to 15 minutes, could not sleep well at night, and had difficulty concentrating. He experienced cough and sore throat daily with no sputum. When he made a fist, sharp pain with numbness and paresthesia went up his arms. The examiner noted that he had cognitive impairment attributable to CFS including inability to concentrate and forgetfulness. Continuous medication was not required for control of CFS. However, symptoms were nearly constant and debilitating fatigue had reduced his daily activity level to less than 50 percent of pre-illness levels for 6 months or longer. His CFS did not result in periods of incapacitation but the Veteran stated that he was incapacitated without physician prescription or treatment at least 6 weeks per year. The functional impact of CFS was a disrupted ability in pulling, pushing, lifting, running, walking, and sitting, with only 15 minutes of sitting possible without numbness. The examiner associated symptoms of widespread musculoskeletal pain, muscle weakness, fatigue, sleep disturbances, paresthesias, and irritable bowel syndrome (IBS) with the Veteran's fibromyalgia. Pain and tenderness was observed on touch and slight pressure on the cervical spine, anterior chest, thoracic spine, low back, bilateral knees, and bilateral extremities. He had tender/trigger points at all locations listed on the Disability Benefit Questionnaire and also in the bilateral temporal area. The Veteran reported being tired all the time, having difficulty sleeping at night, experiencing a pricking sensation in his extremities, and having stomach bloating with diarrhea. Symptoms were constant or nearly constant, worsening with cold weather. The examiner noted that continuous medication was not required for control of fibromyalgia but his symptoms were refractory to Cymbalta. He was currently undergoing cognitive therapy for treatment. There was no functional impact from fibromyalgia. There was no prescription for bedrest related to incapacitation but the Veteran reported needing at least about 12 weeks of bedrest in a 12-month period. 1. An initial rating of 40 percent, but no more, for fibromyalgia is granted. Despite some previous statements by VA examiners, it is apparent throughout the Veteran's VA treatment records that he experienced widespread musculoskeletal pain and tender points, sleep disturbance, stiffness, paresthesias, headaches, and IBS that were nearly constant throughout the entire appeal period. Further, it is noted numerous times that medications prescribed to treat his symptoms were not effective. As such, his nearly constant symptomology was refractory to treatment since the November 1, 2008, date of claim. The Board places more probative weight on the treatment records recording the Veteran's complaints for purposes of medical treatment than the July 2009 and January 2015 VA examiners' statements which did not appear to be based on a complete review of the available medical evidence. Indeed, the Court specifically noted that the January 2015 examination should not be relied upon regarding the fibromyalgia claim. A 40 percent rating is the highest available schedular rating under DC 5025. The Board notes that the Veteran has other symptoms associated with fibromyalgia, namely fatigue, depression, and anxiety, but these symptoms are compensated by the ratings for his service-connected CFS and dysthymic disorder. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As such, the overlapping symptoms of fatigue, depression, and anxiety cannot be considered as part of the rating for fibromyalgia. As all associated fibromyalgia symptoms are contemplated under DC 5025, the Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. 2. An initial rating of 40 percent, but no more, for CFS prior to February 5, 2021, is granted. 3. A rating in excess of 60 percent for CFS from February 5, 2021, is denied. The VA examiners of record determined that the Veteran's debilitating fatigue was constant or nearly so and that it did not wax and wane. VA treatment records clearly reflected nearly constant fatigue throughout the entire appeal period, with some periods of exacerbated symptoms. Further, prior to his discharge from service, the Veteran engaged in the regular physical fitness testing and training required of active duty members of the Marine Corps. He stated to examiners that he retired from the military due to not being able to keep up with fitness testing. Post-service, his activities were substantially reduced, with exercise limited to walking several blocks. He described falling asleep at work and napping during the daytime, as well as often spending weekend days in bed. The July 2009 examiner determined that his debilitating fatigue resulted in a 30 percent restriction of activities. Affording the Veteran the benefit of the doubt, the Board finds that a 40 percent rating is warranted for CFS prior to February 5, 2021. It is apparent that his debilitating fatigue and cognitive impairment were nearly constant and restricted his routine daily activities. The only estimation in the record of how restricted such activities were was 30 percent. As this falls in between the 20 percent and 40 percent rating criteria, the Board finds that the higher evaluation is warranted. Prior to February 5, 2021, a rating in excess of 40 percent is not supported. The Veteran's symptoms did not result in periods of incapacitation with physician-prescribed bedrest of at least 6 weeks during the year. Further, the Veteran held down a full-time job, walked several blocks to work each day, and engaged in a VA physical therapy program. Such activities do not approximate less than 50 percent of the pre-illness level. The totality of the evidence of record does not demonstrate that the Veteran's CFS restricted his routine daily activities by 50 percent prior to February 5, 2021. (Continued on the next page) At the February 5, 2021, VA examination, it was determined that the Veteran's nearly constant and debilitating fatigue had reduced his daily activity level to less than 50 percent of pre-illness levels. As such, a 60 percent evaluation is warranted as of the date of the examination. There is nothing in the record to indicate that his CFS restricted activities to that level prior to the date of the examination. Further, there is no evidence that the Veteran's debilitating fatigue and cognitive impairment restricted his routine daily activities almost completely and occasionally precluded self-care. He continues his full-time employment, recently reengaged with VA pain management, and has not demonstrated any inability to perform self-care due to CFS. Indeed, VA treatment records reflected that he was well-groomed, appropriately dressed, and oriented on all spheres. Consequently, his service-connected CFS did not meet the criteria for a rating in excess of 60 percent from February 5, 2021. The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.