Citation Nr: 21029521 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-24 105 DATE: May 13, 2021 ORDER A compensable disability rating for the service-connected Lyme disease infection is denied. A separate 40 percent disability rating for fibromyalgia as a residual disability of the Lyme infection for the entire period on appeal prior to September 2, 2020 is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's Lyme disease infection has not been active, but the Veteran has fibromyalgia as a residual disability of the Lyme infection. 2. For the entire period on appeal, the Veteran's Lyme disease residual of fibromyalgia was manifested by symptoms more nearly approximating widespread musculoskeletal pain and tender points, fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected Lyme disease, on the basis of active infection, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.88b, Diagnostic Code 6319. 2. The criteria for a separate 40 percent disability rating for the Lyme infection of residual fibromyalgia have been met for the entire period on appeal prior to September 2, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to April 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to a compensable disability rating for the service-connected Lyme disease. In July 2015, VA received the Veteran's Notice of Disagreement (NOD). In April 2016, the RO issued a Statement of the Case (SOC). In May 2016, VA received the Veteran's timely VA Form 9 appeal to the Board. In September 2018 and September 2020, the Board remanded the case for further development and adjudicative action. Before the case was returned to the Board on appeal, the RO issued a March 2021 rating decision granting service connection for fibromyalgia associated with Lyme disease and assigned an initial disability rating of 40 percent, effective from September 2, 2020, under 38 C.F.R. § § 4.71a, Diagnostic Code 5025. The Veteran does not assert, and the evidence does not otherwise show, that he is unemployed or otherwise unable to maintain substantially gainful employment due to his service-connected disabilities. Therefore, a claim for total disability rating (TDIU) due to service-connected disabilities is not reasonably raised. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable disability rating for the service-connected Lyme disease infection. The Veteran contends that his service-connected Lyme disease is active and, therefore, that a 100 percent disability rating is warranted for the Lyme disease for the entire period on appeal. The Veteran's Lyme disease is currently rated as noncompensable under 38 C.F.R. § 4.88b, Diagnostic Code 6319. During the period on appeal, effective August 11, 2019, the criteria for rating infectious diseases, including Lyme disease, under 38 C.F.R. § 4.88b were amended. Under Diagnostic Code 6319, prior to August 11, 2019, inactive Lyme disease was rated by evaluation of "residuals such as arthritis under the appropriate system." 38 C.F.R. § 4.88b. Active Lyme disease was assigned a 100 percent disability rating. Prior to August 11, 2019, neither the rating schedule nor the regulations define "active" Lyme disease. However, VA guidance indicates that infectious diseases for both the initial diagnosis and any relapse of active infection must be confirmed by diagnostic testing specific to the disease. In addition, medical literature suggests that active Lyme disease describes the presence of Lyme antibodies in the bloodstream. See, e.g., Paul M. Lantos, M.D., Chronic Lyme Disease, Nat'l Inst. of Health (2015); Giusto Trevisan, et al., A Practical Approach to the Diagnosis of Lyme Borreliosis, Frontiers in Medicine, S.A. (2020). While this definition is not binding on the Board, it offers persuasive guidance, and there does not appear to be any alternative definition or interpretation of this term as used in Diagnostic Code 6319. Moreover, it appears to be consistent with objective medical findings discussed below From August 11, 2019, Lyme disease is evaluated under the General Rating Formula for Infectious Diseases (General Rating Formula). A note under Diagnostic Code 6319 directs to rate under the appropriate body system any residual disability of infection, which includes but it not limited to, arthritis, Bell's palsy, radiculopathy, ocular, or cognitive dysfunction. The General Rating Formula provides a 100 percent rating for active disease; and, after active disease has resolved, a 0 percent rating is assigned for the infection; and, any residual disability of infection is to be rated within the appropriate body system. 38 C.F.R. § 4.88(b), including Diagnostic Code 6319 (2020). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application. Accordingly, prior to August 11, 2019, only the old criteria for rating Lyme disease may be considered; however, from August 11, 2019, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied. As applied, however, the amended rating criteria results in no discernable alteration of benefits available to the Veteran. The threshold question in this case is whether the Veteran's Lyme disease is active, or inactive; and, if inactive, then is it manifested by chronic residuals, such as fibromyalgia and chronic fatigue syndrome (CFS), that are compensable under other Diagnostic Codes. By way of history, the Veteran was diagnosed with Lyme disease following an in-service tick bite occurring in July 2002; in January 2003, he was noted to have positive titers for Lyme disease using a Western Blot test. However, no blood test of record since has shown that the Veteran's Lyme disease has been active at any point during or prior to the period on appeal. A September 2005 Western Blot test was negative for Lyme disease. See administrative note dated December 10, 2014. Most recently, a lab test for Lyme disease completed in June 2018 was also negative. See VA addendum dated August 8, 2018. Nevertheless, of record are findings by one VA examiner and one private physician that the Veteran's Lyme disease was active. Another VA examination report was ambiguous as to whether the disease was active. First, a January 2017 VA examination report indicates that the Veteran's Lyme disease was active. However, no diagnostic testing was identified in the examination report. Next, February 2017 disability benefits questionnaire (DBQ) completed by Dr. J.F., a private physician, reveals a diagnosis of "chronic" Lyme disease. Dr. J.F. indicated that the Lyme disease was active and identified a positive reading on a Lyme disease test; however, this positive test is not identified and no further details regarding the positive test were given in the DBQ. As noted above, the only positive test of record is the January 2003 Western Blot test. Furthermore, in the same DBQ, Dr. J.F. noted the absence of significant diagnostic test findings and/or results. Finally, an October 2019 VA examination report identifies the Lyme disease as active. However, the report paradoxically states that treatment for active disease was ceased in June 2019 and that the Veteran currently had no symptoms attributable to Lyme disease during period on appeal (since 2014). A negative nexus opinion accompanying the October 2019 examination report states that the examiner "was unable to identify that the reported claim for Lyme disease was active during the appeal period." Following the September 2020 Board remand, the Veteran received a new VA examination for his Lyme disease in December 2020. The December 2020 examiner stated that the Veteran's Lyme disease had been inactive since 2004; however, that examiner also identified residual conditions associated with the Veteran's inactive Lyme disease, including fibromyalgia and chronic fatigue syndrome (CFS), which are addressed in the next section. Based on the foregoing, the preponderance of the evidence shows that the Veteran's Lyme disease is inactive and, therefore, a rating of 100 percent is not warranted. In this regard, diagnostic testing was negative for Lyme disease as of June 2018. The only positive test of record is from January 2003, long before the period on appeal. Regarding the January 2017 VA examination and February 2017 private DBQ, both the January 2017 examiner and Dr. J.F. in the February 2017 DBQ failed to identify specific positive tests for Lyme disease to support their assessments that the disease was active. Accordingly, they are afforded no probative value in this regard, and more probative value is given to the laboratory testing of record. Given the above, the criteria for the 100 percent rating for active Lyme disease have not been met. However, although the evidence shows that the Veteran's Lyme disease is not active, there is ample evidence that he suffers from chronic residuals of Lyme disease. These residuals are discussed in the section below. 2. Entitlement to a separate disability rating for fibromyalgia as a residual of Lyme disease for the period on appeal prior to September 2, 2020. As referenced above, the Veteran has been noted to experience numerous residuals of Lyme disease during the period on appeal. As noted in the introduction, a March 2021 rating decision granted service connection for fibromyalgia associated with Lyme disease and assigned an initial disability rating of 40 percent, effective from September 2, 2020, under 38 C.F.R. § § 4.71a, Diagnostic Code 5025. Diagnostic Code 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 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to Diagnostic Code 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, Diagnostic Code 5025. The December 2020 VA examiner also completed a DBQ for CFS, which is rated under 38 C.F.R. § 4.88a, Diagnostic Code 6354. VA regulations specifically define "chronic fatigue syndrome" at 38 C.F.R. § 4.88a in terms of identifying characteristics. A diagnosis of CFS requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity, or pattern that is different from headaches in a pre-morbid state); (viii) migratory joint pains; (ix) neuropsychologic symptoms; (x) sleep disturbance. 38 C.F.R. § 4.88a. Under Diagnostic Code 6354, a 10 percent rating is assigned for CFS which waxes and wanes but results in period of incapacitation of at least one but less than two weeks total duration per year; or for symptoms controlled by continuous medication. A 20 percent disability is assigned under this code for symptoms which are nearly constant and restrict daily activities by less than 25 percent of pre-illness level; or, which wax and wane, resulting in incapacitation of at least two but less than four weeks total duration per year. A 40 percent 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 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 100 percent 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. See 38 C.F.R. § 4.88b (2020). Prior to the diagnosis of fibromyalgia by a September 2020 VA examiner, a November 2015 examiner diagnosed the Veteran with "arthralgia associated with Lyme disease." Symptoms included widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, and anxiety. Furthermore, the November 2015 examiner provided a diagnosis of CFS manifested by "debilitating fatigue" and "fatigue lasting 24 hours or longer after exercise." In an addendum submitted later in November 2015, the examiner noted that the Veteran's debilitating fatigue was severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; however, the examiner retracted the diagnosis of CFS because the Veteran only demonstrated two of the symptoms required under 38 C.F.R. § 4.88a. See November 2015 VA addendum opinion. Based on the Veteran's reports of widespread musculoskeletal pain, the January 2017 examiner completed DBQs for the right and left knees, right shoulder, left elbow, neck, and right and left feet. The examiner opined that all musculoskeletal pain was at least as likely as not proximately due to the service-connected Lyme disease. During the October 2019 VA examination for Lyme disease, the Veteran reported "cognitive issues and memory loss" and facial paralysis (Bell's Palsy) in addition to the symptoms identified above. As noted above, the December 2020 examiner provided a diagnosis of fibromyalgia. Notably, the fibromyalgia diagnosis was based on the Veteran's history of musculoskeletal pain and fatigue during the period on appeal. Pertinent signs and symptoms of the fibromyalgia included stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headache, depression, and irritable bowel symptoms, all experienced constantly or near-constantly. The examiner noted that the Veteran experienced tender points in "all [points] bilaterally." The December 2020 examiner also completed a DBQ for CFS. Although the examiner provided a diagnosis of CFS, the examiner noted only four of the relevant symptoms identified in 38 C.F.R. § 4.88b, including: (1) debilitating fatigue, (2) generalized muscle aches or weakness, (3) migratory joint pain, and (4) sleep disturbance. Based on the foregoing, a separate 40 percent disability rating for fibromyalgia is warranted for the entire period on appeal prior to September 2, 2020. Specifically, the evidence shows that the Veteran experienced symptoms of fibromyalgia throughout the appeal period. These symptoms included widespread musculoskeletal pain, headaches, fatigue, sleep impairment, depression, anxiety, paresthesias, and irritable bowel symptoms. Furthermore, the December 2020 examiner's diagnosis of fibromyalgia was based on symptoms demonstrated throughout the relevant period. Given the above, the criteria for a separate 40 percent disability rating from the date that the Veteran's claim for increase for Lyme disease was received by VA, or July 29, 2014. The 40 percent rating is the maximum rating available for fibromyalgia. However, given the December 2020 examiner's diagnosis of CFS, consideration of evaluation under Diagnostic Code 38 C.F.R. § 4.88a, Diagnostic Code 6354 is necessary. However, consideration of separate ratings for cognitive issues and memory loss and facial paralysis is not warranted. First, VA treatment records and the VA examinations of record reveal no evidence of cognitive dysfunction other than mild memory loss, which was noted as a component of the Veteran's service-connected PTSD. See February 2021 VA psychiatric examination report. No VA examination report of record reflects actual deficits in concentration or other cognitive deficits outside of the Veteran's subjective reports. The Veteran's statements regarding his claimed cognitive issues and memory loss being associated with his service-connected Lyme disease are not competent because the Veteran, as a lay person, does not possess the requisite medical expertise necessary to provide a competent opinion on causation. To the extent that the Veteran's memory loss is documented, it is currently compensated under the 50 percent rating for the service-connected PTSD. As such, a separate rating for memory loss would result in impermissible pyramiding. 38 C.F.R. § 4.14 Second, there is no evidence of paralysis (facial or otherwise) or a diagnosis of Bell's Palsy during the period on appeal. Accordingly, no further consideration of a separate rating for Bell's Palsy (or any other form of paralysis) is warranted. Nonetheless, a separate disability rating under that code is not warranted because the Veteran does not meet the criteria in 38 C.F.R. § 4.88a for a diagnosis of CFS. In this regard, at no time during the appeal has the Veteran's multi-symptom illness been manifested by at least 6 of the symptoms identified in 38 C.F.R. § 4.88a. Furthermore, the Veteran's fibromyalgia symptomatology includes the same fatigue and related symptoms; i.e., the symptomatology related to CFS significantly overlaps with the fibromyalgia symptoms for which the Veteran is currently compensated. Accordingly, even assuming, arguendo, that the Veteran had CFS, the assignment of another separate rating for symptoms associated with CFW would likely result in impermissible pyramiding. 38 C.F.R. § 4.14 (evaluation of the same disability and/or manifestations under various diagnoses is to be avoided). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, 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.