Citation Nr: 21026948 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-18 123 DATE: May 4, 2021 ORDER From August 19, 2013 to July 19, 2019, entitlement to a rating in excess of 20 percent for a chronic musculoskeletal pain syndrome with fatigue, which affected the bilateral shoulders, knees, and ankles, is DENIED. On and after July 19, 2019, entitlement to a rating in excess of 40 percent for chronic musculoskeletal pain syndrome with fatigue that affects the lower back and bilateral shoulders, knees, and ankles is DENIED. FINDINGS OF FACT 1. From August 19, 2013 to July 19, 2019, the Veteran demonstrated musculoskeletal pain syndrome with fatigue that was episodic, but present more than one-third of the time. The preponderance of the evidence does not reflect that the Veteran's chronic musculoskeletal pain syndrome with fatigue was constant, or nearly so, and refractory to therapy. 2. On and after July 19, 2019, the Veteran's chronic musculoskeletal pain syndrome with fatigue manifested as widespread musculoskeletal pain and tender points that were present more than one-third of the time and were refractory to therapy. 3. On and after July 19, 2019, the Veteran's chronic musculoskeletal pain syndrome with fatigue is evaluated at the highest schedular rating, 40 percent. CONCLUSIONS OF LAW 1. From August 19, 2013 to July 19, 2019, the criteria for an evaluation in excess of 20 percent for the service-connected chronic musculoskeletal pain syndrome with fatigue have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5025 (2020). 2. On and after July 19, 2019, the criteria for an evaluation in excess of 40 percent for the service-connected chronic musculoskeletal pain syndrome with fatigue have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1988 to December 1991. The Veteran's certificate of discharge from active duty (DD214) reflects that he completed more than 2 years and 9 months of foreign service. Moreover, the Veteran was the recipient of the Southwest Asia Service Medal. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected chronic musculoskeletal pain syndrome with fatigue. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. 1. From August 19, 2013 to July 19, 2019, entitlement to a rating in excess of 20 percent for the service-connected chronic musculoskeletal pain syndrome with fatigue, which affected the bilateral shoulders, knees, and ankles, is denied. On August 19, 2013, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for chronic musculoskeletal pain syndrome with fatigue. In April 2014, the agency of original jurisdiction (AOJ) granted service connection for chronic musculoskeletal pain syndrome, assigning a 20 percent rating. In April 2015, the Veteran submitted his notice of disagreement (NOD) with the 20 percent evaluation for chronic musculoskeletal pain syndrome. The Veteran's chronic musculoskeletal pain syndrome with fatigue, affecting the bilateral shoulders, knees, and ankles, is rated under Diagnostic Code (DC) 5025 as Fibromyalgia. 38 C.F.R. § 4.71a. Fibromyalgia is rated as 20 percent rating disabling when it is episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. The highest, 40 percent rating under DC 5025 is assigned when there is 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. Id. A note under DC 5025 states 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. Additionally, because Diagnostic Code 5025 is not based on limitation of motion, the provisions of 38 C.F.R. § 4.40 and § 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In September 2013, an Environmental Examination Note was generated at the VA Nebraska-Western Iowa Health Care System (NWIHS). At that time, the VA examiner noted chronic, mild bilateral knee pain. The Veteran reported that he felt constant exhaustion. In February 2014, an Examination Note was generated at the VA NWIHS. Therein, the examiner noted that the Veteran's number one problem was lower back pain. The Veteran reported that the second problem was diffuse musculoskeletal pain in the shoulders, knees and, occasionally, ankles. The third problem the Veteran reported was significant fatigue. The VA examiner reported an impression of mild chronic musculoskeletal pain syndrome with associated fatigue. The VA examiner relayed that the Veteran's chronic musculoskeletal complaints could be defined as an undiagnosed illness of unknown etiology. In February 2014, a Gulf War General Medical Examination disability benefits questionnaire (DBQ) was associated with the claims file. The VA examiner noted that the Veteran reported chronic fatigue, muscle pain, and joint pain. In April 2014, a DBQ was associated with the claims file. After review of the claims file, the VA examiner reported a diagnosis of chronic musculoskeletal pain syndrome with associated fatigue, which is an undiagnosed illness of unknown etiology. The VA examiner relayed that the evidence reflected that the service-connected chronic musculoskeletal pain syndrome with associated fatigue affected the Veteran's bilateral shoulders, knees, and ankles. The VA examiner relayed that the Veteran demonstrated mild spondylosis of the lumbosacral pine and, therefore, it was a known diagnosis. The VA examiner relayed that, "his BILATERAL SHOULDERS, BILATERAL KNEES, AND BILATERAL ANKLES are affected by chronic musculoskeletal pain syndrome with fatigue AND THRE IS AN OVERLAPPING known secondary diagnosis regarding the ankles and the R shoulder. With the intertwined dual diagnostic overlapping conditions, (one known and one undiagnosed illness) and only ONE functioning musculoskeletal joint . . . i.e. . Left ankle, right ankle, R shoulder, it is impossible to separate which symptoms/issues, pain, ROMs issues are due to the undiagnosed issue vs diagnosed issue as there is only one joint motion and functionality. It is impossible to separate the above joints with chronic musculoskeletal pain syndrome with fatigue with undiagnosed illness from the other musculoligamenous / cystic or DJD conditions (in his bilateral ankles and R shoulder)." In March 2016, the Veteran's treatment notations from the VA NWIHS were associated with the claims file. The Board notes that, in a December 2015 Endocrine Clinic Note, a VA provider reported that the Veteran denied lethargy, headache, diarrhea, and muscle aches. In June 2018, the Veteran submitted sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that he had pain in the bilateral shoulders, knees, and ankles. The Veteran testified that he also endured back pain. The Veteran testified that he suffered from fatigue. The Veteran's representative requested that the Veteran receive separate compensable ratings for each of the effected joints. In July 2019, the Veteran's treatment notations from the VA NWIHS were associated with the claims file. After review, the Board notes that Veteran reported no musculoskeletal joint pain on multiple occasions. However, in February 2015, a VA provider noted a history of mild chronic musculoskeletal pain syndrome. In a July 2016 Physical Therapy Outpatient Evaluation Note, the provider reported that the Veteran was referred for treatment of ongoing right shoulder pain. Initially, the Board notes that the symptoms reported by the Veteran, at various times during the claim period, are contemplated under DC 5025. The Board recognizes the argument offered by Veteran's representative during the hearing; however, only DC 5025 will be used to rate the Veteran's single disability of chronic musculoskeletal pain syndrome with fatigue, because it addresses the Veteran's symptoms attributable to this service-connected disability. The Board finds that DC 5025 is best to evaluate the service-connected disability at issue; and, to compensate the Veteran for the same symptoms attributable to his service-connected chronic musculoskeletal pain syndrome with fatigue under another DC constitutes impermissible pyramiding. See 38 C.F.R. § 4.14. Therefore, the Board finds that separate ratings for each of the Veteran's symptoms for the chronic musculoskeletal pain syndrome with fatigue under separate diagnostic codes (as alleged by his representative) is not warranted. During the claim period, the Veteran was diagnosed with chronic musculoskeletal pain syndrome with fatigue. However, on multiple occasions during the claim period, the Veteran denied musculoskeletal pain or muscle aches. Consequently, the Board finds that the Veteran's symptoms were not constant, or nearly so. Additionally, the April 2014 examiner opined that the Veteran's mild spondylosis of the lumbosacral spine was a known diagnosis. Consequently, the Veteran's service-connected musculoskeletal pain syndrome did not impact the axial skeleton, which is necessary for a 40 percent rating under DC 5025. Therefore, the Board finds that the Veteran's demonstrated and/or reported symptoms during the claim period do not warrant a 40 percent evaluation under DC 5025. Ultimately, the Board concludes that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess of 20 percent for the service-connected chronic musculoskeletal pain syndrome with fatigue between August 19, 2013 and July 19, 2019. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for rating in excess of 20 percent for the service-connected chronic musculoskeletal pain syndrome with fatigue between August 19, 2013 and July 19, 2019 must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. On and after July 19, 2019, entitlement to a rating in excess of 40 percent for chronic musculoskeletal pain syndrome with fatigue that affects the lower back and bilateral shoulders, knees, and ankles is denied. In April 2014, the AOJ granted service connection for chronic musculoskeletal pain syndrome, assigning a 20 percent rating. In April 2015, the Veteran submitted his notice of disagreement (NOD) with the 20 percent evaluation for chronic musculoskeletal pain syndrome. Again, the Veteran's chronic musculoskeletal pain syndrome with fatigue, which affects the lower back and bilateral shoulders, knees, and ankles, is rated under DC 5025 (Fibromyalgia). 38 C.F.R. § 4.71a. The highest, 40 percent rating under DC 5025 is assigned when there is 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. In September 2018, the Board addressed the claim(s) listed on the title page. At that time, the Board remanded the Veteran's increased rating claim to the AOJ. The Board concluded that an April 2014 VA examination was inadequate for a thorough and complete analysis of the Veteran's claim. Specifically, the Board noted that the VA examiner did not address whether the Veteran demonstrated separate and distinct musculoskeletal manifestations that were attributable to the same undiagnosed illness, and the examiner did not address whether the Veteran demonstrated symptoms that were constant, or nearly so, and refractory to therapy. Consequently, the Board directed the AOJ to secure an examination report that addressed the severity of the Veteran's musculoskeletal pain syndrome with fatigue. On July 19, 2019, the Veteran underwent a VA examination that addressed the severity the service connected chronic musculoskeletal pain syndrome with fatigue. The examiner noted a February 2014 diagnosis for chronic musculoskeletal pain syndrome with fatigue that affected the bilateral shoulders, knees, and ankles. At that time, the Veteran reported that his symptoms included fatigue, diarrhea once per week, lower back pain, and bilateral ankle / shoulder / knee pain. The examiner noted that the Veteran required continuous medication for his disability. The examiner reported that the Veteran's symptoms were refractory to therapy. The examiner noted that the Veteran's symptoms were present more than one-third of the time. The examiner noted that the Veteran's tender points for pain were the bilateral lateral epicondyle, greater trochanter, and medial joint line of the knee. The examiner noted the Veteran's symptoms included persistent daytime fatigue, headaches, sleeping difficulty, once weekly diarrhea, low back and ankle stiffness, and pain in the low back, knees, ankles and shoulders. For functional impact, the examiner noted that the Veteran worked from home when his symptoms were severe enough to limit his ability to go into office. In September 2019, the Veteran's treatment records from the VA NWIHS were associated with the claims file. In an August 2019 Primary Care Outpatient Note, a provider recorded that the Veteran did not report musculoskeletal joint paint. However, the Veteran did report occasional lower back pain, which did not radiate to the legs. In a different notation, a VA provider recorded that the Veteran relayed that there were no relief factors, aside from medication, for his back pain. In March 2020, the AOJ issued a rating decision. At that time, the AOJ increased the Veteran's disability rating for the service-connected chronic musculoskeletal pain syndrome with fatigue to 40 percent, effective July 19, 2019. During the claim period from July 19, 2019, the Board observes that the Veteran has been in receipt of the maximum rating possible under VA's laws and regulations for the service-connected chronic musculoskeletal pain syndrome with fatigue. See 38 C.F.R. § 4.71, DC 5025 (Fibromyalgia). The Board finds that no other Diagnostic Code is as appropriate, as Diagnostic Code 5025 specifically compensates the symptoms of fibromyalgia, including the widespread musculoskeletal pain and fatigue that the Veteran experiences. The Board further finds that no separate rating is warranted under any other diagnostic code, because the 40 percent rating assigned under DC 5025 specifically contemplates the Veteran's symptoms and compensates him for such. Ultimately, the Board finds DC 5025 most appropriately addresses the Veteran's service-connected chronic musculoskeletal pain syndrome with fatigue disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). 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. See 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 chronic musculoskeletal pain syndrome with fatigue is rated as fibromyalgia, which specifically considers, as is noted above, all of the Veteran's reported symptomatology. Therefore, an extraschedular evaluation is not appropriate. As the Veteran's service-connected chronic musculoskeletal pain syndrome with fatigue has been assigned the maximum schedular rating available for the claim period, and there are no unaccounted for signs or symptoms, the Board finds there is no legal basis upon which to award a higher schedular evaluation. Therefore, entitlement to a rating in excess of 40 percent for chronic musculoskeletal pain syndrome with fatigue is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.