Citation Nr: 25004345 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 20-28 871 DATE: April 1, 2025 ORDER Entitlement to an initial disability rating in excess of 20 percent for polymyositis is denied. REMANDED Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran's service-connected polymyositis was manifested by, at worst, episodic symptoms with exacerbations which are present more than one-third of the time and not refractory to therapy. CONCLUSION OF LAW 1. The criteria for a disability rating greater than 20 percent for polymyositis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1972 and from September 1990 to July 1991, with additional service in the U.S. Air Force Reserve. His decorations included the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. According to information obtained from the Social Security Administration (SSA), the Veteran died in June 2023, while the current appeal was pending. In May 2024, the RO granted substitution for the appellant as the claimant. See 38 C.F.R. § 3.1010. Increased Rating 1. Entitlement to an initial disability rating in excess of 20 percent for polymyositis The appellant seeks an initial disability rating in excess of 20 percent for the Veteran's service-connected polymyositis. A 20 percent rating for the disability has been assigned since July 2013 under Diagnostic Code (DC) 5025. Under DC 5025 (fibromyalgia), a 10 percent evaluation is warranted where there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel syndrome, depression, anxiety or Raynaud's-like symptoms that require continuous medication for control. A 20 percent evaluation is warranted when those symptoms 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 evaluation is warranted when those symptoms are constant, or nearly so, and refractory to therapy. This is the highest rating available under DC 5025. 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). VA treatment records reflect persistent complaints and treatment for polymyositis. A September 2014 rheumatology note reflected occasional joint pain and fatigue. An April 2015 rheumatology note reflected diagnosis of polymyositis. In August 2017, the Veteran presented for follow up of polymyositis. The Veteran was afforded a VA examination for nondegenerative arthritis in May 2015. The Veteran reported that all his muscles and joints ached constantly. He reported some weakness, and indicated he used a cane to walk. The Veteran had joint pain with all motion, but no limitation of motion of the joint was noted by the examiner. No exacerbations that were incapacitating, constitutional manifestations which were totally incapacitating, or weight loss and anemia were noted by the examiner. No other physical findings, complications, conditions, signs or symptoms related to polymyositis were noted. The Veteran was afforded a VA examination for nondegenerative arthritis in July 2020. The Veteran reported generalized muscle pains, weakness, and joint pains. Anemia that was attributable to arthritis was noted, but without impairment of health. Pain was noted in the cervical spine, thoracolumbar spine, hand/fingers, hip, knee, ankle, and feet. No limitation of joint movement or any joint deformities attributable to the arthritis condition was noted. Exacerbations which were not incapacitating were noting that occurred 4 or more times per year. No incapacitating episodes, constitutional manifestations, or weight loss and anemia productive of severe impairment of health were noted. The Veteran reported occasional use of a wheelchair and walker. The Veteran was afforded a VA examination for fibromyalgia in July 2020. The examiner indicated that the Veteran did not have a diagnosis of fibromyalgia. The examiner opined that the fibromyalgia examination was not the best documentation for the Veteran's polymyositis. Polymyositis was noted as one of a group of muscle diseases known as the inflammatory myopathies, which are characterized by chronic muscle inflammation accompanied by muscle weakness. As such, no significant clinical findings, symptoms, or signs were noted for polymyositis. The Veteran was afforded a VA examination for nondegenerative arthritis in September 2021. The Veteran reported ongoing pain. No weight loss or anemia was noted by the examiner. Pain was noted in thoracolumbar spine, shoulder, hand/finger, hip, knee, ankle, and foot. Exacerbations which were not incapacitating were noted that occurred 4 or more times per year. The Veteran was afforded a VA examination for fibromyalgia in September 2021. The Veteran reported general aches and pain. No findings, signs, or symptoms attributable to fibromyalgia were noted. The examiner noted that polymyositis is one of a group of muscle diseases known as the inflammatory myopathies, which are characterized by chronic muscle inflammation accompanied by muscle weakness. The Board finds the Veteran's fibromyalgia symptoms did not warrant a rating in excess of 20 percent at any point during the period on appeal. The evidence shows instead that the Veteran's service-connected fibromyalgia was manifested by, at worst, episodic symptoms with exacerbations which are present more than 1/3 of the time and not refractory to therapy. July 2020 and September 2021 VA examinations showed exacerbations which were not incapacitating were noting that occurred 4 or more times per year. No incapacitating episodes, constitutional manifestations, or weight loss and anemia productive of severe impairment of health were noted. These findings on physical examination conducted during this time period support the 20 percent rating currently (and initially) assigned. In January 2022, the Veteran's representative argued that the Veteran's polymyositis should be rated under DC 5021 instead of DC 5025. Under DC 5021, diseases are to be rated as degenerative arthritis based on limitation of motion of the affected parts. Id. While the Board acknowledges the contention that the Veteran's polymyositis should be rated under DC 5021, the Board finds that the record does not reveal compensable ratings that would warrant a higher rating based on limitation of motion of the affected parts. In this, the Board notes that the May 2015 and July 2020 VA examination reports reflected no limitation of joint movement or deformity. 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; 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 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 polymyositis under separate diagnostic codes is not warranted. For the above reasons, the Board finds entitlement to a rating in excess of 20 percent for the Veteran's polymyositis during the period under review must be denied. The Veteran's polymyositis was manifested by episodic symptoms with exacerbations which are present more than 1/3 of the time and not refractory to therapy. There is no indication that this disability was manifested by constant or nearly constant symptoms refractory to treatment as is required for a higher 40 percent rating under DC 5025. Accordingly, entitlement to a rating in excess of 20 percent for the relevant period is denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD is remanded. The appellant seeks a higher rating for the Veteran's PTSD. By way of background, a rating decision was issued in November 2018 that granted service connection for a mood disorder effective July 30, 2013, and the Veteran submitted a timely Notice of Disagreement (NOD). Thereafter, the Agency of Original Jurisdiction (AOJ) issued a July 2020 SOC. During the pendency of the appeal the AOJ issued an August 2020 rating decision that granted service connection for PTSD with an earlier effective date of September 26, 2002. The already service-connected depressive disorder (previously rated as mood disorder) due to another medical condition was combined with PTSD and was rated as one disability. Additional evidence pertinent to the claim for PTSD that was not considered by the AOJ was added to the claims file since the last adjudication of the claim. The appellant has not submitted a waiver of AOJ consideration of the new evidence, or responded to a January 2025 letter requesting a waiver, and the AOJ has not issued an SSOC with consideration of the newly received evidence. As the new evidence is pertinent to the pending claim, the appeal must be remanded for the AOJ to consider the evidence in the first instance, and issue a SSOC reflecting consideration of all the evidence associated with the claims file after July 2020 SOC. 2. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. Finally, because a decision on the remanded issue of an increased rating for PTSD could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Readjudicate the issue on appeal in light of all the additional evidence added to the record since the July 2020 SOC. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dane Lauritzen 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.