Citation Nr: 1004472 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 08-08 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, including as secondary to a service-connected disability. 2. Entitlement to service connection for fibromyalgia, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active military duty from January 1977 to January 1981 and from August 1981 to April 1999. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, inter alia, denied service connection for the issues currently on appeal. As support for his claim, the Veteran provided testimony before the undersigned Veterans Law Judge at a hearing at the RO (Travel Board hearing) in June 2009. The transcript of the hearing has been associated with the claims file and has been reviewed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND However, before addressing the merits of the issues currently on appeal, the Board finds that additional development of the evidence is required. On remand, the AOJ should consider the Veteran's claim as encompassing all psychiatric disorders with which the Veteran has been diagnosed, pursuant to the decision of the Court of Appeals for Veterans Claims in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). First, with regard to the Veterans Claims Assistance Act of 2000 (VCAA), the RO should send the Veteran a VCAA notice letter that discusses secondary service connection for an acquired psychiatric disorder, to include depression and anxiety, and fibromyalgia, on the premise that they are proximately due to, the result of, or chronically aggravated by, his service-connected disabilities. 38 C.F.R. § 3.310 (2009). In this case, the RO must send the Veteran the aforementioned notice letter in order to ensure essential fairness of adjudication of this case. Therefore, a remand is required for the RO to issue another VCAA letter that is compliant with 38 C.F.R. § 3.159(b)(1) and with all legal precedent. Second, the Veteran has identified receipt of medical treatment with private physicians and the existence of recent private treatment records with regard to the issues currently on appeal, but these identified treatment records have not been associated with the claims file. Specifically, during his Travel Board hearing in June 2009, the Veteran testified that he continues to receive treatment for depression and fibromyalgia from a private physician. However, a review of the claims file indicates that no private treatment records have been obtained after 2006. In this respect, VA's duty to assist pertains to obtaining records of the Veteran's relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2) (2002); 38 C.F.R. §§ 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). However, VA also has a duty to make reasonable efforts to obtain relevant records, including private records, that the claimant adequately identifies, and notify the claimant of such efforts whenever it is unable to obtain such records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Because any record of treatment for his depression and fibromyalgia may be relevant to the Veteran's claim, the RO should attempt to obtain these records, and, if they no longer exist, must make this express declaration to confirm that further attempts to obtain them would be futile. The Veteran also has to be apprised of this. Further, the Veteran indicated during his June 2009 Travel Board hearing that he receives disability benefits from the Social Security Administration (SSA) for his depression and fibromyalgia. See Travel Board hearing transcript dated in June 2009. However, the RO has not obtained these records. In this regard, VA's duty to assist includes obtaining records of the Veteran's relevant VA medical treatment and from other agencies. 38 U.S.C.A. §§ 5103A(c)(2) and 5103A(c)(3); 38 C.F.R. §§ 3.159(c)(2), (c)(3). See also Bell, supra. Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Thus, a remand is warranted to obtain these records. Additionally, the Veteran should be scheduled for another VA examination to obtain a medical opinion concerning the nature and etiology of any current fibromyalgia and whether it was incurred during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In this regard, although the Veteran was provided with a VA examination of his fibromyalgia in January 2007, the examiner at the time only addressed the question of whether the Veteran's fibromyalgia was due to his service-connected back and cervical spine disorders; he failed to provide a medical nexus opinion with regard to whether the fibromyalgia was directly related to the Veteran's military service. In this respect, the Veteran was treated numerous times for pain in multiple locations of his body, including the neck, back, shoulder, and ankle, during service. He also complained of radiating pain. In-service VA treatment records also indicate that he was diagnosed with myofacial pain syndrome in 1996. Further, a treatment record dated in October 1997 indicated fibromyalgia. Post-service, the Veteran continued to complain of, and receive treatment for, chronic pain in various locations of his body, and he was diagnosed with fibromyalgia in 2004. See private treatment records from S.E. Mortensen, M.D., dated in February 2004. Post-service, the Veteran also has been diagnosed with myofacial pain syndrome. See, e.g., private treatment records from Advanced Anesthesia Associates & Pain Management, dated in February 2006. In January 2007, the Veteran was provided a VA examination with regard to his fibromyalgia. The VA examiner concluded that his fibromyalgia was not related to his service- connected back condition because there is no pathogenesis for the back condition causing, or being related to, fibromyalgia etiologically. See VA examination report dated in January 2007. However, since the VA examination in January 2007, the Veteran has submitted multiple scientific articles and studies indicating that fibromyalgia may be caused by physical trauma, which, in this case, was sustained by the Veteran to his back during service. Further, a March 2008 letter submitted by one of the Veteran's private physicians also indicated that fibromyalgia may be caused by physical injuries, including cervical strain. The physician further noted that the Veteran's service-connected cervical strain may very well have caused his fibromyalgia in this case. See letter from D.N. Weidensaul, M.D., dated in March 2008. Therefore, given the evidence of a diagnosis of fibromyalgia during service, and the articles and letter from Dr. Weidensaul indicating a positive nexus between physical injuries and fibromyalgia, the Board finds that a remand is required for another detailed VA examination of the Veteran's fibromyalgia to address service connection on a direct and secondary basis for fibromyalgia. Finally, the Board observes that, in August 2009, after certification of the appeal, the Veteran submitted pertinent evidence consisting of recent VA treatment records, VA treatment records from his period of active duty, and additional articles about fibromyalgia, directly to the Board. This evidence was not submitted with a waiver of RO consideration; thus, a remand is required for the RO to consider this evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2009). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter complying with the case of Allen v. Brown, 7 Vet. App. 439, 448 (1995). Specifically, this letter should specifically advise him about the elements to establish secondary service connection. 2. Obtain records of treatment for depression and fibromyalgia from the VA medical center (VAMC) that the Veteran may have received since June 2009. Also, contact the Veteran to identify all private physicians from whom he received treatment since 2006. If any private treatment records exist, the RO also should ask the Veteran to provide authorization of release for these records and obtain them or ask the Veteran to submit such records. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. Request from the SSA records associated with the Veteran's disability claim(s). Request copies of the disability determination and all medical records considered. If no records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 4. Arrange for the Veteran to undergo a VA examination of his fibromyalgia, by an appropriate specialist, to determine the nature, severity, and etiology of any current fibromyalgia. The claims file must be made available for review of his pertinent medical and other history, particularly records of any diagnosis during service and any nexus opinions. The examination should include any necessary diagnostic testing or evaluation, and the examination report should include a discussion of any and all manifestations of his fibromyalgia, and the extent of any impairment, including the location, frequency, and level of any pain. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion responding to the following questions: (a) Does the Veteran currently have fibromyalgia? (b) If so, is the Veteran's current fibromyalgia caused or aggravated by any service-connected disability? (c) Is it at least as likely as not that the Veteran's current fibromyalgia is the result of his military service? If so, was the disorder diagnosed in October 1997 during the Veteran's period of active service? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. The Veteran is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. 5. Readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder, to include depression and anxiety, including as secondary to a service-connected disability; and his claim for service connection for fibromyalgia, including as secondary to a service-connected disability, in light of the VA examination and any additional evidence received since the April 2008 supplemental statement of the case (SSOC). Adjudication of the claim should consider the applicability of 38 C.F.R. § 3.310(a) (2009) and Allen v. Brown, 7 Vet. App. 439, 448 (1995). If the claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).