Schedule for Rating Disabilities; Fibromyalgia

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AH05

Schedule for Rating Disabilities; Fibromyalgia

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule without change an interim

final rule adding a diagnostic code and evaluation criteria for

fibromyalgia to the Department of Veterans Affairs' (VA's) Schedule for

Rating Disabilities. The intended effect of this rule is to insure that

veterans diagnosed with this condition meet uniform criteria and

receive consistent evaluations.

DATES: Effective Date: This final rule is effective June 17, 1999. The

interim rule adopted as final by this document was effective May 7,

1996.

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,

Policy and Regulations Staff (211B), Compensation and Pension Service,

Veterans Benefits Administration, Department of Veterans Affairs, 810

Vermont Avenue, NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: On May 7, 1996, VA published in the Federal

Register an interim final rule with request for comments (61 FR 20438).

The rule added a diagnostic code, 5025, and evaluation criteria for

fibromyalgia to the section of the VA Schedule for Rating Disabilities

(38 CFR part 4) that addresses the musculoskeletal system (38 CFR

4.71a). A 60-day comment period ended July 8, 1996, and we received

three comments, one from two physicians in the Department of Medicine

at The Oregon Health Sciences University, and two from VA employees.

The evaluation criteria for fibromyalgia under diagnostic code 5025

have one requisite that applies to all levels: ``[w]ith 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.'' The 40-, 20-, and 10-percent evaluation levels are

additionally based on whether these findings are constant, or nearly

so, and refractory to therapy; are episodic, but present more than one-

third of the time; or require continuous medication for control. One

commenter felt that the use of the phrase ``with or without'' as used

in diagnostic code 5025 is confusing and might be interpreted as

rendering the symptoms that follow the phrase as superfluous and

unnecessary in the evaluation of fibromyalgia.

Some individuals with fibromyalgia have only pain and tender

points; others have pain and tender points plus stiffness; still others

have pain and tender points plus stiffness and sleep disturbance; etc.

As a shorter way of stating this, we have used the phrase ``with or

without,'' followed by a list of symptoms, to indicate that any or all

of these symptoms may be part of fibromyalgia, but none of them is

necessarily present in a particular case. When symptoms in addition to

pain and tenderness are present, they may be used as part of the

assessment of whether fibromyalgia symptoms are episodic or constant.

When none of the symptoms on the list is present, the determination of

whether the condition is episodic or constant must be based solely on

musculoskeletal pain and tender points. The term ``with or without'' is

also used in Sec. 4.116 (Schedule of ratings--gynecological conditions

and disorders of the breast) of the rating schedule under diagnostic

code 7619, ``Ovary, removal of,'' where the criterion for a zero-

percent evaluation is ``removal of one with or without partial removal

of the other.'' We believe that in both cases the phrase ``with or

without,'' rather than adding confusion, better defines the potential

scope of the condition under evaluation. We therefore make no change

based on this comment.

The same commenter questioned whether the intent is to place a

ceiling of 40 percent on the evaluation of fibromyalgia despite the

presence of one or more of the symptoms following the phrase ``with or

without.''

As the evaluation criteria indicate, there may be multi-system

complaints in fibromyalgia. If signs and symptoms due to fibromyalgia

are present that are not sufficient to warrant the diagnosis of a

separate condition, they are evaluated together with the

musculoskeletal pain and tender points under the criteria in diagnostic

code 5025 to determine the overall evaluation. The maximum schedular

evaluation for fibromyalgia in such cases is 40 percent. If, however, a

separate disability is diagnosed, e.g., dysthymic disorder, that is

determined to be secondary to fibromyalgia, the secondary condition can

be separately evaluated (see 38 CFR 3.310(a)), as long as the same

signs and symptoms are not used to evaluate both the primary and the

secondary condition (see 38 CFR 4.14 (Avoidance of pyramiding)). In

such cases, fibromyalgia and its complications may warrant a combined

evaluation greater than 40 percent. Since these rules are for general

application, they need not be specifically referred to under diagnostic

code 5025.

Another commenter referred to a statement in the supplementary

information to the interim final rule that indicated that fibromyalgia

is a benign disease that does not result in loss of musculoskeletal

function. The commenter said that while it is not a malignant disease

which leads to anatomic crippling, the result of persistent chronic

pain is often musculoskeletal dysfunction.

The statement regarding the lack of loss of musculoskeletal

function is supported by medical texts which state, for example, that

objective musculoskeletal function is not impaired in fibromyalgia

(``The Manual of Rheumatology and Outpatient Orthopedic Disorders'' 349

(Stephen Padgett, Paul Pellicci, John F. Beary, III, eds., 3rd ed.

1993)); that the syndrome is not accompanied by abnormalities that are

visible, palpable, or measurable in any traditional sense; and that the

patient must recognize the physical benignity of the problem

(``Clinical Rheumatology'' 315 (Gene V. Ball, M.D. and William J.

Koopman, M.D., 1986)). These medical texts confirm that fibromyalgia

does not result in objective musculoskeletal pathology. The criteria we

have established to evaluate disability due to fibromyalgia are

therefore based on the symptoms of

[[Page 32411]]

fibromyalgia rather than on objective loss of musculoskeletal function.

The same commenter said that more could have been said about the

wide clinical spectrum of fibromyalgia and the associated stress

response which may lead to clinical problems of psychopathology,

inappropriate behavior, deconditioning, hormonal imbalance, and sleep

disorder.

The evaluation criteria do include a broad spectrum of possible

symptoms, and sleep disturbance is one of them. As discussed above, any

disability, including a mental disorder, that is medically determined

to be secondary to fibromyalgia, can be separately evaluated. The

rating schedule is, however, a guide to the evaluation of disability

for compensation, not treatment (see 38 CFR 4.1), and it is unnecessary

for that purpose to include a broad discussion of the clinical aspects

of fibromyalgia. We therefore make no change based on this comment.

The same commenter said that it is important to stress that

fibromyalgia may co-exist with other rheumatic disorders and have an

additive effect on disability.

If two conditions affecting similar functions or anatomic areas are

present, and one is service-connected and one is not (a situation that

is not unique to rheumatic disorders), the effects of each are

separately evaluated, if feasible. When it is not possible to separate

the effects of the conditions, VA regulations at 38 CFR 3.102, which

require that reasonable doubt on any issue be resolved in the

claimant's favor, dictate that the effects be attributed to the

service-connected condition. Since there is an established method of

evaluating co-existing conditions, there is no need to stress the point

that other diseases may co-exist with fibromyalgia, resulting in

additive effects, and we make no change based on this comment.

The commenter also stated that the correct diagnosis of

fibromyalgia and the exclusion of other rheumatic conditions are of

paramount importance in ensuring a successful treatment program.

The diagnosis of fibromyalgia and exclusion of other rheumatic

disorders are functions of the examiner and outside the scope of the

rating schedule, which, as noted earlier, is a guide for the evaluation

of disability for purposes of compensation, not treatment. We therefore

make no change based on this comment.

One commenter stated that claimants with fibromyalgia will present

with limitation of motion of various joints of the body, and the rating

agency will have to take into consideration pain on movement and

functional loss due to pain (see 38 CFR 4.40 and 4.45). The commenter

felt that the proposed scheme invites separate ratings for limitation

of motion of each joint.

Fibromyalgia is a ``nonarticular'' rheumatic disease (``The Merck

Manual'' (1369, 16th ed. 1992)), and objective impairment of

musculoskeletal function, including limitation of motion of the joints,

is not present, in contrast to the usual findings in ``articular''

rheumatic diseases. Joint examinations in fibromyalgia are necessary

only to exclude other rheumatic diseases because physical signs other

than tender points at specific locations are lacking. The pain of

fibromyalgia is not joint pain, but a deep aching, or sometimes burning

pain, primarily in muscles, but sometimes in fascia, ligaments, areas

of tendon insertions, and other areas of connective tissue (Ball and

Koopman, 315). The evaluation criteria require that the pain be

widespread, and that the symptoms be assessed based on whether they are

constant or episodic, or require continuous medication, but they are

not based on evaluations of individual joints or other specific parts

of the musculoskeletal system. We believe the evaluation criteria make

clear the basis of evaluation, and we therefore make no change based on

this comment.

Based on the rationale set forth in the interim final rule document

and this document, we are adopting the provisions of the interim final

rule as a final rule without change. We also affirm the information in

the interim final rule document concerning the Regulatory Flexibility

Act.

List of Subjects in 38 CFR Part 4

Disability benefits, Individuals with disabilities, Pensions,

Veterans.

Accordingly, the interim final rule amending 38 CFR part 4 which

was published at 61 FR 20438 on May 7, 1996, is adopted as a final rule

without change.

Approved: March 24, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

[FR Doc. 99-15342 Filed 6-16-99; 8:45 am]

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