Citation Nr: 22012270 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-31 991 DATE: March 3, 2022 ORDER An initial 40 percent rating is granted for service-connected fibromyalgia with tension headaches. FINDING OF FACT Throughout the period on appeal, the Veteran's fibromyalgia has been manifested by constant symptoms that are resistant to treatment; these symptoms include widespread musculoskeletal pain and tenderness with associated stiffness, headaches, fatigue, exhaustion, insomnia, and symptoms of irritable bowel syndrome. CONCLUSION OF LAW The criteria have been met for an initial 40 percent rating for service-connected fibromyalgia with tension headaches and symptoms of irritable bowel syndrome. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1972 and January 1991 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). This issue was previously before the Board in June 2019, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior June 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case was remanded for a current VA examination. The Veteran received an October 2020 VA examination for fibromyalgia and for headaches. Accordingly, the Board will proceed with appellate review. Initial Rating Fibromyalgia Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Separate disability ratings ("staged rating") may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's fibromyalgia is currently assigned a 20 percent rating prior to October 15, 2020, and a 40 percent rating thereafter, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5025. Under the diagnostic code, fibromyalgia is rated based on symptoms such as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesia, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's syndrome-like symptoms. Where these fibromyalgia symptoms require continuous medication for control, a 10 percent rating is assigned. A 20 percent rating is assigned for episodic symptoms with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A maximum 40 percent rating is assigned for constant or nearly constant symptoms which are resistant to treatment. A Note following 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. Factual Background The Veteran filed a September 2009 claim for service connection for fibromyalgia. The Veteran received a June 2010 VA examination. The examiner noted history of diffused muscle pain in the neck and back. The examiner noted symptoms were constant with aching pain in the trapezius muscles especially through the shoulders. The examiner noted that muscular activity precipitates the pain and that rest alleviates the pain. The examiner noted additional symptoms of headaches, unexplained fatigue, and symptoms of gastroesophageal reflux disease (GERD). Physical examination showed muscular strength was 4/5 in the affected area. The Veteran reported daily headaches that were aggravated by muscular activity. The examiner noted that the Veteran was not on medication at that time. A May 2011 VA treatment record stated noted no significant muscle pains and GERD symptoms were controlled with medication. An August 2011 VA treatment record noted neck and shoulder pains, occasional back and left knee pains. The Veteran reported medication from his rheumatologist. In September 2012 VA treatment, the Veteran complained of generalized aching from fibromyalgia-related pain. The Veteran stated that the pain was primarily in both shoulders and neck. The VA treatment provider noted the Veteran was on medication and was also monitored by a private rheumatologist. During the January 2019 Board hearing, the Veteran reported regular flare-ups that occurred monthly, constant dull pain, debilitating headaches that occurred two to three times per month, joint and muscle pain in the neck, shoulders, back, feet, hands, and legs and symptoms of irritable bowel syndrome (IBS). The Veteran received an October 2021 VA fibromyalgia examination and a headaches examination. The VA fibromyalgia examination noted current symptoms of pain triggering in areas such as lower back, hips, neck, shoulders, and feet. Additional symptoms included headaches, fatigue, exhaustion, muscle joint stiffness, insomnia, and symptoms of IBS with loose stools. The examiner noted the Veteran was on medication and that the symptoms were constant or near constant. The October 2020 VA headache examination noted prostrating attacks once every month. The Veteran's headache symptoms included sensitivity to light, head pain that lasted less than one day, with the pain occurring on both sides of the head. An October 2020 rating decision granted a 40 percent rating effective October 15, 2020. Thus, the Veteran's rating was staged for the period on appeal. Analysis The Board finds an initial 40 percent rating is warranted for the entire period on appeal. The Veteran's lay statements, the June 2010 VA examination, October 2020 VA examinations, and VA treatment records showed constant symptoms including widespread musculoskeletal pain and tenderness with associated stiffness, headaches, fatigue, exhaustion, and IBS symptoms. Additionally, the evidence showed the Veteran's constant pain is not alleviated with medication and the Veteran continues to experience flare-ups of pain. This 40 percent disability rating is the maximum schedular rating available for fibromyalgia. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. The Board has considered whether other potentially applicable diagnostic codes would benefit the Veteran. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). However, given the Veteran's medical history, diagnosis, and reported symptoms, the Board finds that there is no other applicable diagnostic code which would permit the assignment of a schedular disability rating higher than 40 percent for fibromyalgia. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting that the assignment of a particular diagnostic code is dependent on the facts of a particular case, including the relevant medical history, diagnosis assigned, and demonstrated symptoms). The Board has also considered whether this matter should be referred for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). In this case, however, referral for extraschedular consideration is not necessary because the schedular criteria for the Veteran's fibromyalgia contemplate the findings and associated functional impairment (such as widespread musculoskeletal pain and tenderness with associated stiffness, headaches, fatigue, exhaustion, insomnia and IBS symptoms) shown here and there is no impairment (either reported by the Veteran or indicated by the evidence of record) that is not encompassed by the schedular criteria; therefore, the schedular criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008) (setting forth criteria for when referral for extraschedular consideration is required). Accordingly, an initial 40 percent disability rating is warranted for the entire period on appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.