Citation Nr: 1007245 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 96-32 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected lumbosacral strain with degenerative disc disease (DDD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to July 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Offices (ROs) in Waco, Texas, and Columbia, South Carolina. A February 1996 rating decision denied the Veteran entitlement to service connection for fibromyalgia and denied an increased evaluation for his service-connected back disability. A July 1998 rating decision denied the Veteran entitlement to a TDIU. Review of the record reflects that the case has been remanded for evidentiary development on numerous occasions. Most recently, in April 2005, the issues of an increased rating for the Veteran's service-connected low back disorder and entitlement to a TDIU were remanded for development, to include a contemporaneous neurological examination. Also in the April 2005 Board decision, service connection was denied for fibromyalgia on a direct and secondary basis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2006 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion for Remand. The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the claim to be remanded so that an attempt could be made to obtain additional VA medical records from the early 1970s. This remand was accomplished in August 2006. In June 2007, the Board denied the claims as listed on the title page of this decision (as well as a rating in excess of 20 percent for lumbosacral strain with DDD). In July 2007, the Veteran's representative submitted a motion to vacate the June 2007 Board decision. The representative stated that in March 2007, the Veteran requested copies of the evidence obtained pursuant to an August 2006 Board remand decision. However, he was not provided with copies of all relevant documents, to include a VA examination report of February 2007. A follow-up request was made to the RO by the Veteran in May 2007, but he did not receive a response to this request prior to the June 2007 Board denial. At the time of its decision, the existence of these documents was not known to the Board. The representative argued that since this request was clearly made prior to the Board's adjudication (and since the March 2007 records request was clearly not complied with), the June 2007 decision should be vacated pursuant to 38 C.F.R. § 20.904 (2006), so that the Veteran could be provided with the records requested and argue his case before the Board's decision. In addition, assuming that this motion would be granted, the representative requested that the Board stay the case for 90 days following the promulgation of the records at issue so that the Veteran had time to file a brief before the Board issued another decision. In view of the arguments raised, the motion to vacate was granted in an August 2007 letter that was signed by the undersigned Member of the Board. The case was held in abeyance for 90 days at the Board pending additional argument by the Veteran and/or his representative as reflected above. A further extension was also granted. In the Board's April 2008 decision, it was noted that all extensions had expired, and the matter was back before the Board. In an April 30, 2008, decision, the Board denied the claims as listed on the title page of this decision (as well as a rating in excess of 20 percent for lumbosacral strain with DDD). In a statement received by fax one day prior to issuance of the Board's April 2008 decision, the representative requested additional extension. In July 2008, the Veteran's representative submitted a motion to vacate the April 2008 Board decision. He stated that he had filed for an extension in April 2008 which was not responded to prior to or in the April 30, 2008 Board decision. While the extension request was not addressed by Board personnel prior to issuance of the Board's decision, he pointed out that the fax confirmation sheet reflected that it was sent the day before the Board's decision. The representative argued that since this request was clearly made prior to the Board's adjudication, the April 2008 decision should be vacated pursuant to 38 C.F.R. § 20.904 (2008), so that the Veteran could submit medical records in support of his claim. In addition, assuming that this motion would be granted, the representative requested that the Board stay the case for 90 days following the promulgation of the records at issue so that the Veteran had time to file a brief before the Board issued another decision. In view of the arguments raised, the motion to vacate, in part, was granted in an August 2008 letter that was signed by the undersigned Member of the Board. The case was held in abeyance for 90 days at the Board pending additional argument by the Veteran and/or his representative as reflected above. If additional evidence was submitted during the time period, the April 2008 would be vacated. Additional evidence was submitted as to the issues as reflected on the title page of this decision. This evidence includes statements by a private physician dated in September 2008 and November 2009 in which he expresses an opinion regarding the etiology of fibromyalgia and the Veteran's employability. Also, the Board obtained an October 2009 opinion regarding the etiology of the Veteran's fibromyalgia from an independent medical expert. Thus, the April 2008 Board decision is vacated as to the issues reflected on the title page. No evidence was submitted on the increased rating issue so the decision as to that issue is not disturbed. VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2009). Here, the April 2008 Board decision, as to the issues listed on the title page of this decision, will be vacated. No error was alleged as to the denial of the request for a rating in excess of 20 percent for lumbosacral strain with DDD, no new evidence was presented on that issue, and as such that decision stands. However, as it may be argued that the VA failed to consider evidence in that was either in the constructive possession of VA at the time of the Board's April 2008 decision, or was to be submitted by the attorney, the Board finds that its decision of April 30, 2008, failed to provide the Veteran due process under the law as to the issues of entitlement to service connection for fibromyalgia, to include as secondary to service-connected lumbosacral strain, and entitlement to a TDIU. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Accordingly, in order to prevent prejudice to the Veteran, the April 2008 decision of the Board must be vacated as to the issues described above, and a new decision will be entered as to entitlement to service connection and a TDIU as if the April 2008 decision by the Board had never been issued. The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. Service connection is in effect for lumbosacral strain with DDD, rated as 20 percent disabling. 2. The competent medical evidence reflects that the Veteran has fibromyalgia. 3. The evidence is in relative equipoise as to whether the Veteran's fibromyalgia is causally related to the Veteran's service-connected lumbosacral strain with DDD. CONCLUSION OF LAW Resolving all reasonable doubt in favor or the Veteran, service connection is warranted for fibromyalgia as secondary to service-connected lumbosacral strain with DDD. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a Veteran of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009). In addition, they define the obligation of VA with respect to its duty to assist a Veteran in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c) (2009). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Factual Background The service treatment records (STRs) show that the Veteran was evaluated and treated in August and September 1962 for pain and discomfort "in side" diagnostically attributed to myositis. His complaints were treated conservatively with heat and light duty and he was prescribed medication to include Darvon. On December 17, 1963, he was seen at a treatment facility via ambulance with low back pain of approximately two weeks' duration. On physical examination he was able to stand, walk slowly, and touch knees with reversal of lumbar curve without extreme pain on all movements. Subsequent evaluation of the Veteran on December 18, 1963, noted that his complaints were localized to pain in the right kidney area with difficulty in urination and the Veteran was hospitalized for observation. At hospital discharge on December 20, 1963, suspect pyelonephritis was diagnosed. The Veteran was hospitalized in April 1966 for complaints of back pain, which reportedly developed while he was working on a launch facility approximately two weeks prior to his admission when he was working with sheets of plywood during a windstorm. Physical examination of the Veteran's back on admission was noted to be within normal limits. There was extreme tenderness to palpation in the left sacroiliac region. The Veteran complained of pain radiating down the back of both legs and there was a questionable positive straight leg-raising test. Neurologic examination was negative. While hospitalized the Veteran was provided bed rest, muscle relaxants and physical therapy. He improved and was discharged. Acute lumbosacral muscle strain was the diagnosis at discharge. On the Veteran's July 1966 medical examination for service separation, clinical evaluation of the Veteran found no pertinent abnormalities. It was noted as clinical history on this examination that he experienced several episodes of localized acute back strain in service which responded rapidly to medical treatment and were not medically significant. On the Veteran's initial post service VA examination in November 1972, he complained of pain in the back, left shoulder, neck, left knee and right foot. He noted that in 1966 he pulled the lower part of his back while working and has had trouble with this off and on since that time. He added that he got along reasonably well unless he had to do some heavy lifting or ride for long hours. On physical examination the Veteran was noted to bend forward readily touching his feet with his hands and to straighten up quite adequately. Side-to-side motion and back bending was normal. An X-ray of his lumbosacral spine was interpreted to reveal a normal curvature. The vertebral bodies were within normal limits and there was no significant amount of osteoarthritic changes. Lumbosacral strain was the pertinent diagnosis. Service connection for lumbosacral strain was established by an RO rating decision dated in December 1972. This disorder was rated as noncompensably disabling. Private treatment records dated between November 1984 and August 1988 show that the Veteran's physician saw him in April 1987 with complaints of multiple joint pains. The diagnostic impression was questionable myositis. The Veteran was referred for rheumatology consultation in May 1987. It was noted by his examining physician that the Veteran related that he had had polyarthralgias for several months and that his pains began in his left elbow and shoulder and had become quite severe. It was also noted that the Veteran noticed some pain and swelling in his left knee and also experienced minimal low back pain. His past medical history revealed an interesting 4 to 5-week episode of high fever in 1981 for which he was hospitalized and worked up although no diagnosis apparently was made. Physical examination was essentially normal and musculoskeletal pain was the diagnostic impression. It was stated that the Veteran's complaints were somewhat suggestive of polyarthritis and that his symptoms had been short lived, and he would not make a definitive diagnosis until more physical evidence was available. The physician stated that the Veteran had complained of pain in his joints but there was really no swelling, and he should be treated conservatively, possibly with nonsteroidal anti- inflammatory medication until symptoms recurred. When examined by VA in April 1993 the Veteran reported that his low back pain had become worse but had not resulted in any lost time from his work. On physical examination the Veteran was noted to have a fair range of motion in the low back without spasm. Normal low back examination was diagnosed. VA reexamined the Veteran in June 1993. On this examination the Veteran said that since service he had done well with respect to his low back pain until the 1970's when he again developed episodes of intermittent low back pain. He reported that he had no further back injury and had had no back surgery. He said that initially he would go a year or more between attacks of back complaints but that in recent years the intervals between acute back pains had been getting much shorter. On physical examination, there was significant limitation of motion. Deep tendon reflexes in the lower extremities were equal and active both at the knees and ankle. History of musculoligamentous sprain, lumbosacral spine, was the diagnosis. The examiner noted that by history the Veteran had a moderate impairment of back function. The disability evaluation for the Veteran's lumbosacral strain was increased by an RO rating decision dated in July 1993 from noncompensable to 20 percent. In November 1994 the Veteran was evaluated by a private physician for pain across his chest, sides and back. He described the pain as sharp, intense pain that lasts a few minutes then resolves. Following a physical examination probable costochondritis was diagnosed. When seen in late November 1994 it was noted that he had been having difficulty with chest pain and generalized musculoskeletal pain. He gave a history of having difficulty with musculoskeletal pain dating back for probably 8 to 10 years. It was also reported that the pain was intermittent at that time and he was easily able to work with this. It was noted that over the last two years he has had increasing difficulty with musculoskeletal pain as well as difficulty with pain over the chest wall. Following a physical examination the diagnostic assessment, based on physical examination and laboratory data, was that the Veteran probably had myofascial syndrome. A private physician examined the Veteran in December 1994. It was noted that he had had joint pain for a number of years but that it had become increasingly severe for the last several months affecting the shoulders, knees, hands, neck and jaw, thoracic spine, hips and feet. On physical examination the Veteran was characterized as well developed, and well nourished in no acute distress and appearing his stated age. On joint examination there was no active synovial proliferation. There was tenderness in a typical fibrostic distribution somewhat asymmetric however. Neurological examination showed no lateralizing sides. Polyarthralgia/polyarthritis of several years' duration, worse for the past several months, was the pertinent diagnosis. The physician indicated that the Veteran best fitted a category of fibromyalgia-like illness (has more generalized symptoms than myofascial pain syndrome). In a statement received in February 1995, the Veteran requested an increased evaluation for his service-connected low back disability and further noted that he had been diagnosed by a private physician in November 1994 as suffering from fibromyalgia. In July 1995 the Veteran submitted a reproduced copy of a booklet produced by the Arthritis Foundation on the symptoms and signs of fibromyalgia. The booklet noted that fibromyalgia is a form of soft tissue or muscular rheumatism rather than arthritis of a joint. In statements dated in February 1995, a private physician reported that the Veteran was a patient in his clinic and that he had a diagnosis of fibromyalgia that had been confirmed by a rheumatology consultant. He noted that the Veteran was suffering from severe diffuse musculoskeletal pain and chronic fatigue. He added that the Veteran had difficulty with back discomfort with degenerative changes of his lumbar spine that are thought to be related to an injury that occurred while on active duty in the Air Force. He furthermore stated that because of the Veteran's fibromyalgia he was unable to continue with his employment. He indicated that the etiology of the disorder was unknown. In a letter dated in April 1995 the Veteran's private physician indicated that the exact cause of fibromyalgia was unknown. It appeared that emotional or physical trauma could trigger the syndrome as well as hormonal changes. The physician indicated that the Veteran's severe back pain which had become progressively worse "may have triggered" the fibromyalgia. In a second letter dated in April 1995 the private physician reported that the Veteran had fibromyalgia. He noted that this disorder seemed to be his major health problem at this time and that the Veteran complained of diffuse muscular pain, weakness and chronic fatigue. He furthermore stated because of the profound weakness the Veteran is experiencing and because of his generalized muscular pain he has been unable to hold down a full-time job. This letter was addressed to the State Rehabilitation Commission. Private treatment records dated from 1994 to 1997 show that the Veteran was treated for fibromyalgia. In a letter dated in March 1997, a private physician noted that the Veteran had a confirmed diagnosis of fibromyalgia and that his prognosis for any significant improvement was poor. VA received the Veteran's application for increased compensation based on individual unemployability in February 1998. On this application the Veteran reported that due to disability he last worked full time in December 1994. He reported that he had two years of college and was trained in the area of production. He further noted prior employment between November 1989 and July 1995 as a computer specialist. On VA examination in May 1998, the examiner noted that a review of the Veteran's medical records show that he has had a history of fibromyalgia since 1994 and has not worked since 1994. It was noted that the condition was currently active and involved the Veteran's wrist, hands, knees, back, pectoral folds, hips, and ankles. Fibromyalgia was diagnosed. The examiner noted with respect to an opinion regarding the relationship between fibromyalgia and back strain that with a normal neurological examination that I find today, that a fibromyalgic-type syndrome could be consistent with his perceived low back pain. VA outpatient treatment records compiled between 1998 and 2000 show evaluation and treatment provided to the Veteran for multiple complaints to include complaints of back pain and fibromyalgia. In a decision dated in October 1996 the SSA awarded the Veteran disability insurance benefits based on a finding that the Veteran had fibromyalgia and depression, which were stated to be severe impairments within the meaning of SSA regulations. On a VA examination in November 2002, the Veteran's examiner noted that he had reviewed the Veteran's claims file and obtained medical history from the Veteran including history related to the Veteran's evaluation and treatment for fibromyalgia. He further noted that the Veteran indicated that in 1994 he obtained SSA benefits and in that same year he had been diagnosed with fibromyalgia. The Veteran complained of pain in the neck, low back, knees, ankles, and shoulders and sometimes in the surrounding areas as well. He also stated that he had chronic fatigue and that he has hurt all over since his back injury in service. On physical examination of the Veteran's low back it was noted that he could flex to 100 degrees, extend to 25 degrees, and bend laterally 15 degrees to the right and 20 degrees to the left. Straight leg raising caused lower thoracic and bilateral lumbar paraspinal pain but no radicular pain. Patrick's test was noted to cause some pain above the sacroiliac joint. Neurologically, motor strength and tone were intact in both upper and lower extremities. Deep tendon reflexes were two plus and symmetrical except for one-plus right ankle jerk. A lumbosacral spine X-ray was interpreted to show mild L4-5 disc space narrowing. There was facet arthropathy at several levels. Fibromyalgia and mechanical low back pain with degenerative changes with no evidence of radiculopathy were diagnosed. The examiner stated that he could find no evidence that the Veteran's fibromyalgia had its onset or was otherwise related to the Veteran's active military service. He also stated that he could find no evidence that the fibromyalgia resulted from service-connected lumbosacral strain or that fibromyalgia had resulted in worsening the severity of the service-connected lumbosacral strain. He added that he could find no evidence that the Veteran had any muscle spasm and there was no additional functional loss attributable to the Veteran's low back resulting from increased or decreased excursion, decreased strength, speed or endurance, absence of necessary structures, deformity, adhesion or a defective enervation, weak in movement, excess fatigability or incoordination. He did observe that the Veteran did have pain on use with prolonged standing or sitting. He furthermore added that he did not believe that the Veteran's service-connected back disability precluded the Veteran from engaging in gainful employment. He lastly indicated that the Veteran's work restrictions would include avoidance of heavy lifting, repetitive bending, prolonged standing or sitting. The Veteran presented to a VA pain management clinic in December 2002 for follow-up of a lumbar epidural steroid injection performed in December 2002 for treatment of lumbar radiculitis. On physical examination at this time, the Veteran was noted to use a cane for ambulatory assistance. His spine had a normal curvature with tenderness to palpation over the lumbosacral region. Lumbar radiculitis, degenerative disc disease of the lumbar spine, lumbar facet arthropathy and fibromyalgia were the diagnostic assessments. The Veteran was provided a repeat lumbar epidural steroid injection. VA outpatient treatment records compiled during 2003 and 2004 show that the Veteran continued to receive epidural steroid injections from the VA Pain Clinic for lumbar radiculitis. A VA physician reviewed the Veteran's claims file in May 2004. The reviewing physician opined that it is less likely than not that the fibromyalgia is aggravated by the service- connected low back disorder. He added, as rationale for this opinion, that there is no evidence to support that the low back pain would result in generalized muscular pain. Additional treatment records include a VA report dated in April 2005. At that time, the Veteran reported lower back and leg pain, and it was noted that he had been diagnosed with fibromyalgia. He refused rheumatology referral. When spoken to by phone in October 2005, the Veteran noted various joint and muscle complaints due to fibromyalgia with profuse sweating. It was again suggested that he see a rheumatologist, but he declined. In November 2005, his complaints continued but neurological and musculoskeletal examinations revealed no gross deficits. The record reflects that an attempt by the RO in late 2006 to obtain additional records from a VA facility in Texas were unsuccessful. In January 2007, the Veteran reported continued complaints of chronic fatigue and aches from fibromyalgia. When examined orthopedically by VA in February 2007, it was noted that the claims file was reviewed. The Veteran reported that he experienced current daily low back pain with radiation to both legs. This affected his ability to walk. His gait was markedly limited without a cane. He said that he had 24 incapacitating episodes in the past year. He received injection therapy but no physical therapy. He was not currently being treated for pain as he was intolerant to many medications. He suffered flare-ups 3 to 4 times per week lasting hours to days. He could sit only 30 minutes. The examiner noted that the Veteran appeared to be in pain even at rest, and he had to log roll to get off and on the examination table. Physical examination revealed 45 degrees of flexion with pain, but with no additional limitation following repetitive use. There was mid lumbar tenderness with some straight leg raising permitted. Neurological examination showed motor strength and sensory function that appeared normal. The diagnoses were degenerative joint disease and disk disease of the lumbosacral spine. The examiner opined that the Veteran was employable only for sedentary work which would allow frequent changes of position. VA neurological examination was conducted approximately one week later. The claims file was reviewed by the examiner. The examiner stated that the Veteran had undergone neurologic evaluations with no abnormal findings and X-rays that revealed only minimal spondylosis and mild facet arthropathy. He complained of severe back pain with occasional radiation into either leg. He denied any loss of sensation. Neuromuscular exam revealed no muscle atrophy and normal muscle strength. It was noted that the Veteran walked with a cane and had difficulty rising from a seated position without assistance. Tendon reflexes were symmetrical and no pathologic reflexes were noted. The examiner concluded that he had no primary neurological dysfunction. He opined that the Veteran had mild osteoarthritis with significant lumbar pain with no neurologic basis. The examiner further opined that the previously diagnosed fibromyalgia was likely the best explanation for his complaints. Added to the record in February 2008 were duplicate copies of VA neurological and orthopedic examinations from February 2007 as summarized above. In an April 2008 Board decision, the Veteran's claim for an increased rating in excess of 20 percent for lumbosacral strain with DDD was denied. A private physician, P.C., M.D., reported in a September 2008 statement, that he had been asked to review the Veteran's medical records. He noted that his review of the records showed that the Veteran was injured in a fall during service. Sine that time, he had undergone continued evaluation and treatment of not only back pain, but generalized myofascial pain diagnosed as fibromyalgia. The physician added that fibromyalgia was a difficulty entity to diagnose. After other causes of pain (such as rheumatoid arthritis, systemic lupus erythematosus, polymyalgia rhuematica, etc.) had been ruled out, fibromyalgia could be diagnosed based on the American College of Rheumatology criteria which included the presence of widespread pain lasting more than 3 months and the presence of tender points. He added that these official diagnostic criteria were only developed in 1990. Therefore, the diagnosis of fibromyalgia prior to 1990 was rare. Dr. P.C. noted that numerous physicians had diagnosed the Veteran with fibromyalgia, to include physicians in 1995, 1998, 2000, 2002, and 2007. He added that there was supporting evidence for this, to include negative lab and radiographic tests, as well as otherwise normal neurological examinations which would preclude this diagnosis. Dr. P.C. added that according to The National Institute of Arthritis and Musculoskeletal and Skin Diseases (NIAMS), a part of the Department of Health and Human Services' National Institutes of Health (NIH), "[t]he causes of fibromyalgia are unknown, but there are probably a number of factors involved. Many people associate the development of fibromyalgia with a physically or emotionally stressful or traumatic event, such as an automobile accident." The private physician stated what while the Veteran was not involved in an automobile accident, he had sustained similar trauma. The "bottom line" was that injury, especially to the back, could trigger the underlying pathophysiology which eventually led to the clinical condition now known as fibromyalgia. Moreover, the Veteran did not have any of the other known risk factors of fibromyalgia. He was a male, had no reported previous sleep disturbances, had no reported positive family history of similar symptoms, and had an otherwise normal rheumatological workup. His "only" risk factor for development of fibromyalgia was trauma. His review of the record also showed that the Veteran was unemployable since at least 1995. When seen by VA in December 2007, the Veteran continued to complain of pain "all over." Pain was significant in the back with radiation into the legs. This pain had been present for approximately 20 years, resulting in the Veteran's inability to work. He could not even accomplish yard work, and he had difficulty walking to the mailbox 70 yards away. The examiner noted that the Veteran brought medical records with him that document diagnosis of fibromyalgia, as well as evidence of inservice back injury. The examiner noted that the Veteran believed that this fibromyalgia started after the inservice back strain. The examiner agreed that fibromyalgia could be induced by trauma. He noted that medical treatise evidence showed that men were more likely to develop localized fibromyalgia in association with a particular occupational or recreational strain. In July 2009, the Board requested that an independent medial expert review the claims file. In the request, the Board noted that there were conflicting opinions of record as to the nature and origin of the Veteran's fibromyalgia. The examiner was asked to review the entire record and respond to pertinent questions. In an October 2009 document, the requested expert (the Program Director, Rheumatology Fellowship, Assistant Professor of Medicine at George Washington University, in Washington, DC), provided his opinions as requested. He noted that he reviewed the claims file. He stated that it was his professional opinion that the Veteran had a clinically established diagnosis of fibromyalgia. He added that the Veteran had suffered from chronic widespread pain for several decades. The pain had involved many body areas, including the lower back, upper back, neck, and arms and lower extremities. Physical exam and laboratory testing on many occasions were negative for other conditions. The expert noted that he was asked to identity the clinical onset of the disorder and an opinion as to whether it was more likely than not, that the fibromyalgia had its clinical onset during service or was causally related to the service- connected lumbar spine disorder. In answering these questions, the doctor provided the following: The etiology of fibromyalgia remains unclear. Suggestions for possible triggering factors include disturbances and physical trauma. Several studies have implied a causative role for trauma in fibromyalgia but only few stated how soon the symptoms developed following trauma. Physical trauma had been implicated as a risk factor preceding other rheumatologic conditions including osteoarthritis, rheumatoid arthritis and psoriasis. The general consensus is that recent physical trauma (less than one year) is significantly associated with the onset of fibromyalgia. In his landmark paper) Al-Allaf from the UK (paper published in Rheumatology 2002, volume 41) found that physical trauma in the preceding 6 months was significantly associated with the onset of fibromyalgia. Fifty three (39%) fibromyalgia patients reported significant physical trauma in the 6 months before the onset of their disease, compared with only 36 (24%) of controls (P[sic]0.007). The strongest evidence of a causative link between trauma and fibromyalgia was a published study by Buskila, et. al. (Am J Arthritis Rheumatol 1997) in which the risk of developing fibromyalgia was more than 10 fold higher in adults with neck injuries than in other adults. Fibromyalgia symptoms occurred within one year of their injury. The expert physician added that the information provided to him in the medical records in reference to the onset of the disorder indicated that the time elapsed between the physical trauma suffered by the Veteran while in service and the onset of the condition was at least 10 years or more. Based on all the information provided to him in the medical records, it was his professional opinion that it was less likely than not that the injury suffered in the mid 1960s by the Veteran triggered fibromyalgia syndrome one or two decades later. He concluded that the available scientific information did not support that fact. Based on current literature there was no proven scientific data linking remote physical trauma and the onset of fibromyalgia symptoms. In a November 2009 addendum statement by P.C., M.D., the doctor reiterated his opinion that the Veteran's fibromyalgia was due to inservice trauma. As in his previous statement September 2008, he again noted that the diagnosis of fibromyalgia was rare in the mid 1990s. Patients prior to that were labeled with a myriad of diagnoses, and he added that some physicians still denied the existence of fibromyalgia syndrome. The doctor stated that the "bottom line" was that the Veteran's post-traumatic pain could not have been diagnosed as fibromyalgia syndrome in the months and years after his accident solely because the diagnosis did not exist. The private examiner again noted that the medical evidence showed trauma was often associated with fibromyalgia. He referenced the medical treatment study of Al-Allaf that was noted by the independent medical expert in his 2009 opinion. The private doctor stated that this study had been cited as evidence against the link to remote trauma and the development of fibromyalgia syndrome. While the study concluded that a statistically significant percentage of fibromyalgia syndrome patients self reported some sort of musculoskeletal trauma in the preceding 6 months, he opined that it would be "irresponsible to conclude that the trauma had to have occurred in the previous 6 months." His review of the questionnaire provided to patients did not include any question as to a history of remote trauma, and he stated that the study's 6 month cut-off period was arbitrary. The private doctor also noted that using the study of Buskila, et. al. (as referenced by the independent medical expert) in his 2009 opinion, was inaccurate. He stated that this study was not designed to develop a timeline between injury and the development of fibromyalgia syndrome. It simply noted that patients with cervical spine injury were 13 times more likely to develop fibromyalgia that those who suffered leg fractures. As with the other study, the choice of a one year cutoff period was arbitrarily chosen and does not indicate that a longer timeframe was not possible. The doctor opined that this study only conclusively showed that fibromyalgia syndrome was obviously associated with trauma. Dr. P.C. further noted that another paper by the same author, 3 years later, discussed the current gap in understanding the relationship between trauma and fibromyalgia syndrome. He opined that to cite the two studies above and conclude that, based on current literature, there was no proven scientific data linking remote physical trauma and the onset of fibromyalgia symptoms, was a misrepresentation of the data. He reiterated his previous medical opinion that is was as likely as not that the Veteran's traumatic inservice injury was the primary event that led to his diagnosis of fibromyalgia syndrome. With his 2009 addendum statement, Dr. P.C. submitted copies of the medical treatises referenced by himself and the independent medical expert in their respective reports. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis - Fibromyalgia Based on a review of the evidence, the Board finds that the evidence is in equipoise and that service connection is warranted for fibromyalgia. There is evidence reflecting that the Veteran's currently diagnosed fibromyalgia resulted from the low back trauma. Although a number of doctors, particularly VA doctors and examiners, have continued to opine that the Veteran's fibromyalgia is not a result of the service-connected low back disorder, the record also contains detailed argument by a private physician suggesting that fibromyalgia resulted from the back trauma. The crux of the VA examiners' opinions that current fibromyalgia is not associated with low back trauma is the long period of time between the trauma and the initial diagnosis of fibromyalgia. These physicians argue that if fibromyalgia developed as a result of the back trauma, it would have been found much earlier than over a decade or more after the initial injury. The private examiner argues that the diagnosis of fibromyalgia was rare in the mid 1990s and that doctors often labeled complaints at the time with a myriad of diagnoses. Fibromyalgia could not have been diagnosed in the months or years after the Claimant's injury as the diagnosis did not exist. The private physician argued against the medical treatises of record that did not support the medical conclusion that fibromyalgia could be associated with trauma by noting that these treatises referred to studies which misrepresented the data as to the onset of trauma induced fibromyalgia. Clearly, the medical evidence of record has been weighed and interpreted differently by the different medical providers, allowing for a difference of opinion by reasonable minds. Thus, the evidence appears to be in equipoise and it appears that the Veteran as likely as not has fibromyalgia as a manifestation of lumbosacral strain. Resolving all reasonable doubt in favor of the Veteran, the evidence supports a grant of service connection for fibromyalgia. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for fibromyalgia as secondary to service-connected lumbosacral strain, is granted. REMAND In light of the Board's decision herein, which established service connection for fibromyalgia, the TDIU claim is now inextricably intertwined with that grant of service connection since the potential exists for the TDIU issue to be affected once a disability rating and effective date have been assigned. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the assignment of both a disability rating and effective date for the service- connected hypertension with atrial fibrillation and cardiomegaly. Accordingly, the case is REMANDED for the following action: 1. If necessary, issue to the Veteran additional VCAA notice with regard to his TDIU claim, such as providing the Veteran with updated notice of what evidence has been received and not received by VA, as well as who has the duty to request evidence, and what development must be undertaken by VA in accordance with applicable case law. See generally Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. § 3.159. 2. Contact the Veteran and obtain the names and addresses of all medical care providers who treated the Veteran for his service-connected disabilities. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order that the Veteran be provided the opportunity to obtain and submit those records for VA review. 3. The Veteran should be referred for a VA medical examination. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (a 50 percent probability or higher) that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation, that is, on his ability to earn "a living wage." Any opinion provided should include discussion of specific evidence of record. If the examiner agrees or disagrees with any opinion of record, he/she should specify his or her reasoning for the agreement or disagreement. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed. 4. Once a disability rating and effective date have been assigned to the service-connected fibromyalgia, and with consideration of all evidence added to the record subsequent to the last supplemental statement of the case (SSOC), the AMC/RO should adjudicate the TDIU issue. If the claim remains denied, the AMC/RO should issue an appropriate SSOC and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs