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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 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.
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