[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32410-32411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15342]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AH05


Schedule for Rating Disabilities; Fibromyalgia

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

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]
BILLING CODE 8320-01-P