Case A26038017

Summary

The veteran, who served from June 1984 to July 2007, appeals two rating decisions. The first decision denied an earlier effective date for service connection for fibromyalgia and denied a rating in excess of 40 percent for fibromyalgia. The second decision denied service connection for benign neoplasm of the thyroid, claimed as thyroid cancer. The veteran sought an earlier effective date for fibromyalgia, but the Board found the claim was denied because the initial claim became final due to failure to appeal within the one-year period, and the subsequent supplemental claim was filed on the correct form, establishing the February 9, 2022 date. For the increased rating for fibromyalgia, the Board denied it, stating the veteran was already receiving the maximum 40 percent rating under Diagnostic Code 5025, and the VA examination did not support an exceptional disability picture warranting extraschedular consideration. Service connection for benign neoplasm of the thyroid was remanded because the VA medical opinion was inadequate, failing to address the conceded toxic exposure risk activity (TERA) and the diagnosed benign neoplasm. A new, adequate VA medical opinion is required to determine the nature and etiology of the thyroid condition.

Rationale

Initial claim denied due to failure to appeal within one year.; Supplemental claim filed on correct form established February 9, 2022 effective date.; No entitlement to earlier effective date.

Full Decision Text

Citation Nr: A26038017
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 251215-615056
DATE: April 23, 2026

ORDER

An earlier effective date for the grant of service connection for fibromyalgia is denied; the effective date remains February 9, 2022.

A rating in excess of 40 percent for fibromyalgia is denied.

REMANDED

Entitlement to service connection for benign neoplasm of the thyroid (claimed as thyroid cancer) is remanded.

FINDINGS OF FACT

1. The Veteran filed a Supplemental Claim seeking service connection for fibromyalgia on February 9, 2022; service connection for fibromyalgia was granted effective February 9, 2022.

2. Throughout the period on appeal, the Veteran's fibromyalgia has been rated at the maximum allowable rating.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than February 9, 2022 for the grant of service connection for fibromyalgia have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. §§ 3.160, 3.400.

2. The criteria for a rating in excess of 40 percent for fibromyalgia have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 4.1- 4.7, 4.126, 4.71a, Diagnostic Code 5025.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1984 to July 2007.

On appeal are two rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The first is a November 2024 rating decision that (1) denied an earlier effective date for the grant of service connection for fibromyalgia, and (2) denied a rating in excess of 40 percent for fibromyalgia. The second is a January 2025 rating decision that denied service connection for benign neoplasm of the thyroid (claimed as thyroid cancer).

In December 2025, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the November 2024 agency of original jurisdiction (AOJ) decision on appeal (as it relates to fibromyalgia). 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for benign neoplasm of the thyroid (claimed as thyroid cancer), any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. 38 C.F.R. § 3.103(c)(2)(ii). 

The matter is now before the Board of Veterans' Appeals (Board) for further adjudication.     

Effective Dates

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and relevant evidence was received within the relevant appeal period. 38 C.F.R. §§ 3.400 (q), 3.156.

In deciding this case based on its application of the law to the pertinent facts, the Board notes that the "date of receipt" of claim means the date on which the
 receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and relevant evidence was received within the relevant appeal period. 38 C.F.R. §§ 3.400 (q), 3.156.

In deciding this case based on its application of the law to the pertinent facts, the Board notes that the "date of receipt" of claim means the date on which the claim was received by VA, except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1(r).

38 C.F.R. §§ 3.2500 (c) governs continuously pursued issues under the modernized review system (AMA) and states a claimant may continuously pursue a claim, or an issue, by timely and properly filing one of the following administrative review options (a supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals) after any decision by the agency of original jurisdiction, Board of Veterans' Appeals, or by the U.S. Court of Appeals for Veterans Claims. 

1. Entitlement to an effective date earlier than February 9, 2022 for the grant of service connection for fibromyalgia.

In this case, the Veteran seeks an effective date earlier than February 9, 2022 for the grant of service connection for fibromyalgia.

Turning to the procedural history in this case, the Veteran filed her original claim for service connection for fibromyalgia on January 20, 2014. The RO denied that claim in a May 20, 2015 rating decision. In the May 21, 2015 VA Notification Letter, the RO informed the Veteran that any appeal or notice of disagreement needed to be filed within one year. The Veteran did not file any appeal within a year. The May 2015 rating decision became final.

On December 31, 2021, the Veteran filed a Fully Developed Claim (FDC) seeking service connection for fibromyalgia. On January 28, 2022, the VA Regional Office Director sent a letter stating, "We received mail indicating that you would like us to review a claim for Fibromyalgia that we previously denied. VA regulations require you to file this request on the proper form. ... You may choose to have your prior claim reviewed as a Higher-Level Review, Supplemental Claim, or Board Appeal." 

On February 9, 2022, the Veteran filed a Supplemental Claim. 

In an August 28, 2023 rating decision, the RO granted service connection for fibromyalgia effective February 9, 2022 (the date the Veteran filed his Supplemental Claim).

On these facts, the Veteran is not entitled to an effective date earlier than February 9, 2022. She is not entitled to an earlier effective date of January 20, 2014 (the date she filed her initial claim) because she did not file an appeal within one year of the May 2015 rating decision and as such, that decision became final. Moreover, she is not entitled to an earlier effective date of December 31, 2021 (the date she filed her second claim), because she did not file this claim on the proper form.  When she was notified that she needed to file on the proper form, she did so on February 9, 2022, and that is the effective date for the grant of service connection for fibromyalgia.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As such, on these facts, no effective date earlier than February 9, 2022, is assignable for the award of service connection for fibromyalgia. The claim for an earlier effective date for the grant of service connection for fibromyalgia is denied.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 
 an earlier effective date for the grant of service connection for fibromyalgia is denied.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

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 compensate the elements of 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 (1999).

2. Entitlement to a rating in excess of 40 percent for fibromyalgia.

In an August 2023 rating decision, the Veteran was granted service connection for fibromyalgia and assigned a 40 percent rating. In a November 2024 rating decision (the rating decision on appeal), the 40 percent rating was continued. The Veteran seeks a rating in excess of 40 percent for fibromyalgia.

Under Diagnostic Code 5025, a maximum 40 percent rating is warranted for fibromyalgia with symptoms of 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 constant, and are refractory to therapy. 38 C.F.R. § 4.71a.  

In the note that follows Diagnostic Code 5025, it states 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, Note.

As the Veteran is already in receipt of the maximum schedular rating for fibromyalgia, there is no legal basis upon which to award a higher schedular rating, and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).

The Board has also considered whether referral for extraschedular consideration was warranted.

In January 2022, the Veteran underwent a VA examination for fibromyalgia. The Veteran reported symptom management has slightly improved with management by a Rheumatologist but remains debilitating. She reported problems sleeping and that she is always anxious and fatigued due to pain. Her current symptoms were noted as: pain, fatigue, anxiety, insomnia, and GI abnormalities. For VA rating purposes, the examiner noted the Veteran has widespread musculoskeletal pain, fatigue, sleep disturbances, headache, depression, anxiety, and irritable bowel symptoms. It was noted she does not use assistive devices.

In light of the evidence in this case, including the January 2022 VA examination specifically noted above, the Board finds that the evidence does not show an exceptional disability picture warranting extraschedular consideration for the Veteran's fibromyalgia.  The Veteran's symptoms are reflected in the 40 percent rating criteria under Diagnostic Code 5025.

The claim for a rating in excess of 40 percent for the Veteran's fibromyalgia is denied. 

REASONS FOR REMAND

3. Entitlement to service connection for benign neoplasm of the thyroid (claimed as thyroid cancer) is remanded.

The Veteran seeks service connection for what she claimed was thyroid cancer but has been most recently diagnosed as "benign neoplasm of the thyroid."

In the January 2025 rating decision on appeal, the Board notes that favorable findings were made: (1) Participation in a toxic exposure risk activity (TERA) is conceded as a TERA Memo verifies the Veteran participated in TERA; and, (2) The Veteran has been diagnosed with a condition as examiner and post-service medical records show that the Veteran had a surgical procedure for a thyroid condition and that she had a benign neoplasm of the thyroid. Despite these favorable
. Entitlement to service connection for benign neoplasm of the thyroid (claimed as thyroid cancer) is remanded.

The Veteran seeks service connection for what she claimed was thyroid cancer but has been most recently diagnosed as "benign neoplasm of the thyroid."

In the January 2025 rating decision on appeal, the Board notes that favorable findings were made: (1) Participation in a toxic exposure risk activity (TERA) is conceded as a TERA Memo verifies the Veteran participated in TERA; and, (2) The Veteran has been diagnosed with a condition as examiner and post-service medical records show that the Veteran had a surgical procedure for a thyroid condition and that she had a benign neoplasm of the thyroid. Despite these favorable findings, the RO denied service connection as a VA medical opinion did not show an association between the Veteran's claimed disability and in-service TERA.

The Board has reviewed the December 2023 VA examination/medical opinion that was referenced in the rating decision on appeal. The examiner provided a negative nexus opinion, and stated the following as rationale, "Per my review of records, I was unable to locate evidence of thyroid cancer." As such, the Board finds this opinion to be unsupported by a clear rationale and therefore, inadequate. What is at issue is whether the Veteran's diagnosed thyroid condition, whether benign or malignant, is due to her service, to specifically include her conceded exposure to toxins during service.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).    

On remand, a new VA medical opinion must be obtained.

The matter is REMANDED for the following action:

Obtain an adequate medical opinion to determine the nature and etiology of the Veteran's benign neoplasm of the thyroid (claimed as thyroid cancer). The need for an in-person examination is left to the discretion of the examiner. The entire claims file and a copy of this remand must be made available to and reviewed by the examiner.

 

 

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bess, T.

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.