FIBROMYALGIA

Summary

The Veteran, an Army Veteran who served from February 1977 to July 1990 and December 1990 to May 1991, appeals the denial of an increased rating for his service-connected fibromyalgia. The Veteran sought a maximum 40 percent rating, asserting his symptoms were constant and refractory to therapy. The Board reviewed evidence from the applicable appeal period, primarily a December 2024 VA examination and the Veteran's December 2023 lay statement. The VA examiner noted the Veteran's reports of constant symptoms but ultimately rated them as episodic and not refractory to therapy, despite the Veteran's ongoing treatment with multiple medications and physical therapy. The Veteran's lay statement detailed constant chronic pain, sleep impairment, and limitations in social and work activities, requiring assistance and supplemental medication. The Board found the VA examination report to have low probative value due to inconsistencies with the Veteran's reported constant symptoms. It concluded that the Veteran's lay statements, supported by treatment history, indicated his symptoms were refractory to therapy. Applying the benefit of the doubt doctrine due to the approximate balance of evidence, the Board granted the increased rating to 40 percent from August 10, 2022.

Rationale

Veteran's lay statements indicated constant symptoms refractory to therapy.; VA exam noted constant symptoms but rated them episodic, with low probative value.; Benefit of the doubt applied due to approximate balance of evidence.

Full Decision Text

Citation Nr: A26037299
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 250828-579955
DATE: April 21, 2026

ORDER

Entitlement to an initial 40 percent rating for fibromyalgia is granted from August 10, 2022.

FINDING OF FACT

Throughout the entire appeal period, the Veteran's fibromyalgia has resulted in widespread musculoskeletal pain, tender points, fatigue, sleep disturbance, stiffness, and headaches, that are constant and are refractory to medications prescribed to treat the symptoms.

CONCLUSION OF LAW

The criteria for an initial maximum 40 percent rating for fibromyalgia are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, Diagnostic Code (DC) 5025.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from February 1977 to July 1990 and December 1990 to May 1991.  This matter comes before the Board of Veterans' Appeals (Board) from an April 2025 rating decision issued by the VA Agency of Original Jurisdiction (AOJ).  

Initially, the AOJ continued a 20 percent rating for fibromyalgia in a May 2024 rating decision.  The Veteran requested higher-level review of that decision and in the April 2025 rating decision on appeal, the AOJ again continued the 20 percent rating.

In his August 2025 VA Form 10182, the Veteran requested direct review of the evidence considered by the AOJ.  Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of May 3, 2024 -the date of the rating decision subject to higher-level review.  See 38 C.F.R. §§ 20.301, 3.2601(f).  If the Veteran submitted evidence that was added to the record after May 3, 2024 the Board did not consider it.  If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence.  See 38 C.F.R. § 3.2501.  

Increased Rating

Entitlement to an initial maximum 40 percent rating for fibromyalgia is granted from August 10, 2022.

I.	General Rating Principles

Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155.

Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id.  

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 is assigned.  38 C.F.R. § 4.7.  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.

II.	Rating Criteria

DC 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance
 the lower rating is assigned.  38 C.F.R. § 4.7.  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.

II.	Rating Criteria

DC 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 10 percent disabling if the symptoms require continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy.  A Note to DC 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, DC 5025.  As the Veteran is diagnosed with fibromyalgia, no other DC may be considered to rate his symptoms.  See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it).

With regard to rating fibromyalgia under DC 5025, the Board notes that while one requisite applies to all levels of the evaluation criteria (i.e., widespread musculoskeletal pain and tender points with associated symptoms), the level of disability is additionally based on the frequency of symptoms, response to therapy and requirement for medication.

III.	Analysis

The Veteran seeks a maximum 40 percent rating for his fibromyalgia.  Specifically, he maintains that symptoms of his fibromyalgia have been constant and are refractory to therapy.  For reasons outlined below, the Board agrees.  He is currently assigned a 20 percent rating from August 10, 2022, for his service-connected fibromyalgia.  The appeal period is from August 10, 2022, the effective date of service connection and the PACT Act.  

The Veteran was afforded one VA examination during the applicable appeal period in December 2024.  At that time, the Veteran reported his condition starting in 2015 during the Gulf War with symptoms of muscle joint pain in his arms and legs, which slowly progressed and that treatment included Duloxetine, Gabapentin, and Tramadol.  He reported currently that his condition "has stayed the same with constant symptoms."  (Emphasis added) The examiner noted that continuous medication was required for control of his fibromyalgia symptoms, specifically the same medications, Duloxetine, Gabapentin, and Tramadol, and that he was currently under treatment for his condition, using said medications, and that his fibromyalgia symptoms were not refractory to therapy.  Widespread musculoskeletal pain (pain that occurs in both sides of the body, both above and below the waist and affecting both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine or low back) and the extremities), stiffness, fatigue, sleep disturbances, and headaches were indicated.  The examiner noted the Veteran's symptoms were episodic with exacerbations and present more than one-third of the time; confusingly, the examiner did not endorse constant or nearly constant symptoms, despite the Veteran's endorsement of the same.  The examiner endorsed all tender points for pain bilaterally.  No assistive devices were indicated.  The examiner noted the Veteran's ability to work was impacted due to muscle pain, stiffness, weakness, generalized fatigue with exertion, intermittent headaches, and difficulty with exertion over 30 minutes.

In a December 2023 lay statement, the Veteran reported that his fibromyalgia symptoms are growing increasingly with the passage of time.  Specifically, he reported that he can no longer travel more than one to two hours by car due to the prescribed use of narcotics and that his social and work activities are considerably curtailed, requiring him to seek help with yard work and
 nearly constant symptoms, despite the Veteran's endorsement of the same.  The examiner endorsed all tender points for pain bilaterally.  No assistive devices were indicated.  The examiner noted the Veteran's ability to work was impacted due to muscle pain, stiffness, weakness, generalized fatigue with exertion, intermittent headaches, and difficulty with exertion over 30 minutes.

In a December 2023 lay statement, the Veteran reported that his fibromyalgia symptoms are growing increasingly with the passage of time.  Specifically, he reported that he can no longer travel more than one to two hours by car due to the prescribed use of narcotics and that his social and work activities are considerably curtailed, requiring him to seek help with yard work and normal home maintenance.  He also reported currently seeking treatment for an exacerbation of his symptoms in his right shoulder and hand via prescribed physical therapy after a visit with an orthopedic surgeon; and that he is having increased bilateral musculoskeletal pain in both hips, for which he is also now seeing an orthopedic surgeon.  Additionally, he reported constant chronic pain that prevents him from getting adequate sleep at night, and that wakes him up two to three times per night, frequently requiring supplemental medication.  Lastly, he reported that in order to sleep, due to his pain, he has to take 400 mg of Gabapentin and 5 mg of cyclobenzaprine if the muscle pain becomes too severe.  

In his January 2024 supplemental claim application, the Veteran's attorney stated that the Veteran has documented severe fibromyalgia symptoms including chronic, debilitating, systemic pain, and that because of his exacerbations, he is required to use not only narcotics for treatment, but the addition of physical therapy, and that the Veteran suffers nightly sleep impairment, further diminishing the quality of his life.  Thus, he stated that the Veteran's symptoms more nearly approximate the criteria for a maximum 40 percent rating.

Based on the foregoing, the Board finds that the evidence is at least approximately balanced regarding the assignment of a maximum 40 percent rating under DC 5025 throughout the appeal period.  In this regard, the Veteran exhibited symptoms associated with a 40 percent rating, namely, widespread musculoskeletal pain, tender points, sleep disturbance, stiffness, fatigue, and headaches, that were constant and were refractory to his prescribed medication.  The Board acknowledges that the February 2023 VA examiner did not find that his fibromyalgia symptoms were refractory to therapy or were constant or nearly constant; however, this examination report is of low probative value, given the examiner's documentation of the Veteran's reports of constant symptoms in the beginning of the report with no explanation as to why a lesser finding of episodic symptoms was made.  Critically, the Veteran has reported constant symptoms during and after the February 2023 VA examination.  Moreover, the Veteran's lay statements regarding his constant chronic symptoms having to be additionally treated by supplemental medication and physical therapy suggest his symptoms are refractory to therapy.  

Accordingly, as the evidence is at least in approximate balance, or nearly equal, to allow for a maximum 40 percent rating under the only applicable DC, which is DC 5025, the benefit of the doubt is applicable, and the appeal for an initial 40 percent rating for fibromyalgia is granted from August 1, 2022.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 4.71A, DC 5025.  

Finally, to the extent that the Veteran's attorney generally asserts that he preserves for appeal "based on common errors committed by VA, the Veteran argues and preserves the following," followed by a list of general case law, such vague assertions do not amount to a specific procedural argument in this case and thus need not be addressed.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board).

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Asante, Ruby

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.