Citation Nr: 21012522 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-04 685 DATE: March 4, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for fibromyalgia with headaches is granted for the entire period on appeal. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2011 is granted. REMANDED Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. Entitlement to a rating in excess of 20 percent for status post right clavicle fracture with deformity and right shoulder tendonitis with arthritis is remanded. Entitlement to a rating in excess of 10 percent prior to July 25, 2017, and in excess of 20 percent as of July 25, 2017, for left lower extremity (LLE) sciatica with sensory changes is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s fibromyalgia with headaches was manifested by widespread musculoskeletal pain and tender points, with associated sleep disturbance, stiffness, paresthesias, headache, and depression symptoms that are constant, or nearly so, and refractory to therapy. 2. Prior to February 28, 2011, the Veteran has had a combined disability rating of 70 percent with a single disability rating of 40 percent. 3. For the entire period on appeal, the Veteran has been unemployable based solely on her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, for service-connected fibromyalgia with headaches have been met for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5025. 2. The criteria for a TDIU have been met prior to February 28, 2011. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1986 to June 1987 and December 1990 to June 1991 with service in Southwest Asia. She had additional service in the Air National Guard from June 7, 1998 to June 20, 1998 and in the Army National Guard from June 16, 2001 to June 30, 2001. In April 2016, the Veteran presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida. A transcript of the hearing has been associated with the claims file. The Veterans Law Judge (VLJ) who held the April 2016 hearing is no longer employed at the Board. In February 2018, the Board sent the Veteran a letter asking whether she wished to attend a hearing before a different VLJ and stating that a non-response within 30 days would be taken as a waiver of a new hearing. 38 C.F.R. § 20.707. She did not reply within 30 days. In January 2020, the Board denied the Veteran’s claims for increased ratings for fibromyalgia, a thoracolumbar spine disability, a cervical spine disability, status post right clavicle fracture, and LLE sciatica. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court issued an order granting an April 2019 Joint Motion for Remand (JMR). The Board remanded these claims in October 2019. 1. Entitlement to a rating in excess of 20 percent prior to February 28, 2011, and in excess of 40 percent as of February 28, 2011, for fibromyalgia with headaches Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran’s fibromyalgia with headaches has been rated as 20 percent disabling prior to February 28, 2011 and 40 percent disabling as of February 28, 2011 under Diagnostic Code 5025. She seeks a higher rating. The April 2019 JMR directed the Board to (1) attempt to obtain Social Security Administration (SSA) records, and (2) further explain whether the Veteran’s symptoms were refractory to treatment prior to February 28, 2011. JMR, April 2019. The RO obtained the Veteran’s SSA records in December 2019. Further, as discussed in detail below, the Board has found the Veteran’s symptoms were refractory to treatment prior to February 28, 2011 and granted a 40 percent rating for the entire period on appeal. Initially, the Board notes that some rating criteria under 38 C.F.R. § 4.71a were changed effective February 7, 2021. However, Diagnostic Code 5025 was not affected by these changes. Under Diagnostic Code 5025, a 20 percent rating is assigned for fibromyalgia 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 that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent rating is assigned for fibromyalgia 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 that are constant, or nearly so, and refractory to therapy. 38 C.F.R. § 4.71a, Diagnostic Code 5025. 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, Diagnostic Code 5025, Note. The Veteran was first examined for her fibromyalgia in March 2010. VA Fibromyalgia examination, March 2010. At that time, she complained of sleep disturbance, headaches, anxiety, musculoskeletal symptoms (stiffness and achiness in the neck, both legs, and back). She reported that her symptoms were constant or nearly so and were exacerbated by cold or damp weather. She took Naprosyn and tizanidine as needed with a fair response and the examiner concluded that continuous medication was not required for control. The examiner observed tender points at the occiput, trapezius, and knees bilaterally. The Veteran was next examined for her fibromyalgia in August 2011. VA Fibromyalgia examination, August 2011. At that time, she complained of trigger points, depression, and musculoskeletal symptoms (stiffness and achiness in the neck, bilateral arms and legs, and back). She reported that her symptoms were getting worse and that she was unable to sleep or sit for prolonged periods and that she required continuous medications (Tramadol and NSAIDs) for control with poor response. The symptoms were constant or nearly so, exacerbated by insufficient sleep and overexertion and alleviated with rest and analgesics. The examiner observed bilateral occiput, low cervical, trapezius, supraspinatus, second rib, gluteal, and greater trochanter tender points. The Veteran was most recently examined for her fibromyalgia in July 2017. VA Fibromyalgia examination, July 2017. At that time, she complained of constant pain and aches all over, stiffness, paresthesias, and headaches. She took continuous medication to control her symptoms (Percocet and tizanidine), but was not undergoing any other treatment. The examiner observed tender points at the bilateral trapezius muscle, supraspinatus muscle, lateral epicondyle, gluteal, and greater trochanter. She concluded that the Veteran’s fibromyalgia was not refractory to treatment. The medical and lay evidence also includes VA treatment records (VA TRs) noting the Veteran’s fibromyalgia symptoms and personal statements and hearing testimony. These VA TRs and lay statements are consistent with the VA examinations of record. With resolution of reasonable doubt in favor of the Veteran, the Board finds that her fibromyalgia warrants a 40 percent rating for the entire period on appeal. The VA examiners consistently state that her symptoms are constant or nearly so. Although there are no statements from the examiners that her symptoms are refractory to treatment, the reports of poor response to medication support such a finding. Although the Board finds that the higher rating of 40 percent is warranted throughout the entire appeals period, there is no basis for a rating in excess of 40 percent at any time during the appeals period. Her currently assigned 40 percent rating is the maximum rating available for fibromyalgia. No higher rating is legally available under her currently assigned diagnostic code. Further, as fibromyalgia has its own code, DC 5025, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). Accordingly, the claim is granted. 2. Entitlement to a TDIU prior to February 28, 2011 Initially, the Board wishes to clarify the period on appeal. The increased rating claim from which the TDIU claim arose was filed on December 17, 2009. TDIU was granted effective February 28, 2011. Therefore, the remaining period on time for which the Veteran seeks TDIU is from December 17, 2009 to February 27, 2011. This is the period on appeal. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following “substantially gainful employment” consistent with the Veteran’s education and occupational experience. 38 C.F.R. §§ 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 361 (1993). If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a Veteran fails to meet the percentage requirements laid out in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). From December 17, 2009 to February 27, 2011, the Veteran was service connected for fibromyalgia, now rated as 40 percent disabling, a thoracolumbar spine disability, a cervical spine disability, and a right clavicle/shoulder disability, each rated as 20 percent disabling, and LLE sciatica, rated as 10 percent disabling. Her combined rating was 70 percent. As she had a combined rating of at least 70 percent and a single disability rating of at least 40 percent, she meets the schedular criteria for TDIU for the entire period on appeal. The remaining question before the Board is whether the Veteran is unemployable due solely to her service-connected disabilities. The Board concludes that the evidence supports such a finding. Significantly, the Veteran has already been granted TDIU effective February 28, 2011. Her service-connected symptoms and employment limitations did not change as of this date. Rather, this was the date that she first met the schedular criteria for TDIU. However, as discussed in detail above, she has now been granted an increased rating of 40 percent for her fibromyalgia for the entire period on appeal. As such, she now meets the schedular criteria for TDIU for this earlier period. As the evidence of her unemployability has already been discussed by the RO in granting her initial TDIU as of February 28, 2011, the Board does not find it necessary to discuss it in detail herein. The Board is satisfied that the evidence of record shows that the Veteran’s service-connected disabilities render her unemployable in either a physical or sedentary environment prior to February 28, 2011. See Gleib v. Shinseki, 733 F.3d 1350 (2013) (held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). In considering the Veteran’s service-connected disabilities and affording her the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran is unemployable due solely to her service-connected disabilities for the entire period on appeal. The criteria for a TDIU prior to February 28, 2011 have been met. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability is remanded. The Veteran’s thoracolumbar spine claim was remanded in July 2018 for a new VA examination. VA examinations were provided in January and September 2020. The January 2020 examiner noted that she had painful motion on forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, and that it resulted in functional loss. However, the examiner failed to describe this functional loss, including in terms of range of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, the January 2020 examiner noted that the Veteran reported flare ups that felt like someone was putting pressure on her back, but failed to fully describe the functional impairment, including limitation of motion, during a flare up. It does not appear that the examiner attempted to estimate additional functional loss during flare ups based on the treatment records or by asking the Veteran specific questions. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In light of these deficiencies, the thoracolumbar spine claim must be remanded for a new VA examination. The Board notes that the September 2020 VA examiner found the Veteran had full range of motion with pain but no functional loss and no flare ups. As this is inconsistent with each of the prior examinations, the Board finds that this does not eliminate the need for an examination that addresses the previously reported painful motion causing functional loss and flare ups. 2. Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. The Veteran’s cervical spine claim was remanded in July 2018 for a new VA examination. VA examinations were provided in January and September 2020. The January 2020 examiner noted that she had painful motion on forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, and that it resulted in functional loss. However, the examiner failed to describe this functional loss, including in terms of range of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, the January 2020 examiner noted that the Veteran reported flare ups with stabbing pain and feeling like her head was too heavy for her body, but failed to fully describe the functional impairment, including limitation of motion, during a flare up. It does not appear that the examiner attempted to estimate additional functional loss during flare ups based on the treatment records or by asking the Veteran specific questions. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In light of these deficiencies, the cervical spine claim must be remanded for a new VA examination. The Board notes that the September 2020 VA examiner found the Veteran had full range of motion with pain but no functional loss and no flare ups. As this is inconsistent with each of the prior examinations, the Board finds that this does not eliminate the need for an examination that addresses the previously reported painful motion causing functional loss and flare ups. 3. Entitlement to a rating in excess of 20 percent for status post right clavicle fracture with deformity and right shoulder tendonitis with arthritis is remanded. The Veteran’s right clavicle/shoulder claim was remanded in July 2018 for a new VA examination. VA examinations were provided in January and September 2020. The January 2020 examiner noted that she had painful motion on flexion, abduction, external rotation and internal rotation, and that it resulted in functional loss. However, the examiner failed to describe this functional loss, including in terms of range of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, the January 2020 examiner noted that the Veteran reported flare ups with a deep ache, but failed to fully describe the functional impairment, including limitation of motion, during a flare up. It does not appear that the examiner attempted to estimate additional functional loss during flare ups based on the treatment records or by asking the Veteran specific questions. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In light of these deficiencies, the right clavicle/shoulder claim must be remanded for a new VA examination. The Board notes that the September 2020 VA examiner found the Veteran had full range of motion with pain but no functional loss and no flare ups. As this is inconsistent with each of the prior examinations, the Board finds that this does not eliminate the need for an examination that addresses the previously reported painful motion causing functional loss and flare ups. 4. Entitlement to a rating in excess of 10 percent prior to July 25, 2017, and in excess of 20 percent as of July 25, 2017, for LLE sciatica with sensory changes is remanded. The Veteran’s LLE sciatica has been granted service connection as secondary to her service-connected thoracolumbar spine. As the new examination for the thoracolumbar spine disability could provide additional information on the LLE sciatica, a decision on the remanded thoracolumbar spine issue could significantly impact a decision on the issue of LLE sciatica. The issues are inextricably intertwined and a remand of the LLE sciatica claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the current severity of her service-connected thoracolumbar spine, cervical spine, and right clavicle/shoulder disabilities. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c) The examiner should also specifically describe the level of functional loss due to pain on motion for the Veteran’s thoracolumbar spine, cervical spine, and right clavicle/shoulder disabilities, preferably in terms of range of motion. If they are unable to do so, they should explain why. (d) The examiner should provide retrospective opinions of the August 2011, July 2017, and January 2020 examinations and report the degree of functional loss due to flare ups and due to pain on motion, if possible, preferably in terms of range of motion. If unable to provide retrospective testing, he or she should state why and provide a reasoned explanation for the determination. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page)   IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.