Citation Nr: 1103072 Decision Date: 01/25/11 Archive Date: 02/01/11 DOCKET NO. 07-19 619 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and residuals of Lyme's disease. 2. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity. 3. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected thoracolumbar strain with degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to January 1987 and from June 1989 to June 1993. She also served with the Ohio National Guard until January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2005 and February 2006 of the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in October 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND Regarding the service connection claims, the Veteran contends that the claimed chronic fatigue syndrome, fibromyalgia, and residuals of Lyme's disease were aggravated by her National Guard service. She reports having right carpal tunnel syndrome due to an injury during active duty for training in December 2002. The Board notes that the Veteran's periods of active duty are verified. The date of the December 2002 injury is verified as active duty for training. However, the remaining National Guard service has not been verified. The Board finds that the RO should contact the appropriate service department to verify the Veteran's dates of active duty for training and inactive duty for training from 1993 to January 2005, and if possible, obtain the specific dates of active duty for training or inactive duty for training. The record shows that, in November 2004, the National Guard requested additional information in order to verify the Veteran's service such as dates of enlistment and discharge, National Guard unit, home of record, and any aliases, but the RO did not follow- up. The RO should also contact the Veteran in order to have her submit any information which verifies the dates of her service in the Ohio National Guard. As noted, the Veteran contends that the claimed chronic fatigue syndrome, fibromyalgia, and residuals of Lyme disease were aggravated during her National Guard service. The National Guard records show that the Veteran was given a profile of P4T that rendered her nondeployable in December 2003 because of the diagnosis of chronic fatigue possibly secondary to Lyme's disease. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010). The definitional statute, 38 U.S.C.A. § 101(24), makes a clear distinction between those who have served on active duty and those who have served on active duty for training or inactive duty for training. Presumptive periods do not apply to active duty for training or inactive duty for training. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of active duty for training or inactive duty for training is not appropriate. The evidence of record does not address whether the Veteran's chronic fatigue syndrome, fibromyalgia and residuals of Lyme's disease were aggravated by military service. Thus, the Board finds that medical examination is necessary and this matter must be remanded in order to obtain an opinion as to whether aggravation occurred. See Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for service connection for carpal tunnel syndrome of the right arm, the Board finds that additional development is necessary before a decision can be made on the merits. VCAA specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran had a line of duty injury in December 2002 when she fell during active duty for training. The service treatment records show that she scraped her right hand when she fell. She asserts that her right carpal tunnel syndrome is due to this injury. There is evidence which indicates that there may be an association between the right arm disability and symptoms and an old injury. In a June 2007 statement, Dr. G.P. stated that the Veteran had right arm, elbow and wrist pain due to a fall type injury. Accordingly, an examination is needed to determine the likely cause of the claimed right carpal tunnel syndrome to include whether there is a link between the right carpal tunnel syndrome and the injury on December 2002. Regarding the claim for a higher rating for the service-connected thoracolumbar strain with degenerative joint disease, there is evidence of record which tends to show that this disability may have increased in severity since the 2009 VA examination. At the hearing in October 2010, the Veteran testified that her back symptoms were worse since the VA examination. She stated that, after the 2009 VA examination, she was prescribed a TENS unit for the back pain. Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of the thoracolumbar spine disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). At the hearing, the Veteran indicated that she was receiving Social Security Administration (SSA) disability benefits for chronic fatigue syndrome. It does not appear that copies of the SSA records have been obtained. The SSA records associated with the file do not contain a decision awarding benefits. In Murincsak v. Derwinski, 2 Vet. App. 363 (1992) the U.S. Court of Appeals for Veterans Claims (Court) held, in essence, that records pertaining to SSA disability claims in possession of SSA are constructively in possession of VA (See 38 C.F.R. § 3.201), and that if VA does not seek to secure such records from SSA, it violates its duty to assist the claimant under 38 U.S.C.A. § 5107(a). VA has a duty to seek these records Lastly, the RO should also contact the Veteran by letter and request that she provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA and non-VA clinical records referable to treatment of the chronic fatigue syndrome, fibromyalgia, lyme disease, right carpal tunnel syndrome or the thoracolumbar spine disability. The RO should make an attempt to obtain any treatment records identified by the Veteran. The Veteran also should be informed that she may submit evidence to support her claim. Accordingly, the case is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should take appropriate steps to verify the dates of the Veteran's service with the Ohio National Guard from 1993 to 2005. Attention is invited to the November 2004 response from the Ohio National Guard which requested specific information in order to verify all pertinent periods of active or inactive duty for training. The RO should also ask the Veteran to submit any information which would tend to verify any period of active or inactive duty for training in support of her claim. 2. The RO should take appropriate steps to contact the Veteran and ask her to identify all VA and non-VA medical treatment sources for the claimed chronic fatigue syndrome, fibromyalgia, Lyme's disease and right carpal tunnel syndrome and for the service- connected thoracolumbar spine disability. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter should invite the Veteran to submit any pertinent medical evidence in support of her claim to VA. 3. The RO should take all indicated action to obtain copies of records referable to the Veteran's claim for SSA disability benefits. 4. The RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed chronic fatigue syndrome, fibromyalgia, and Lyme's disease. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to whether the Veteran's chronic fatigue syndrome, fibromyalgia or Lyme's disease increased in severity as a result of her National Guard service, and whether any such increase was due to the natural progression of the disease process. The examiner should provide a rationale for all conclusions. 5. The RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed carpal tunnel syndrome on the right. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner in this regard should elicit from the Veteran and record a complete medical history referable to the claimed carpal tunnel syndrome. After reviewing the claims file and examining the Veteran, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran currently suffers from disability manifested by current carpal tunnel syndrome is due to an injury as identified by the Veteran or another event of her active service or any period of active or inactive duty for training. The examiner in this regard should assess the significance to the documented December 2002 injury in service and provide an opinion as to whether it is at least as likely as not that this event or another incident in service caused or aggravated the claimed right carpal tunnel syndrome. Any opinions expressed by the examiner should be accompanied by a clear rationale. 6. The RO should schedule the Veteran for a VA examination to determine the current extent and severity of the service- connected thoracolumbar spine disability. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should specify the range of motion in degrees of the thoracolumbar spine including forward flexion, extension, left and right lateral flexion, and left and right rotation. The examiner should specifically note all symptomatology and manifestations caused by the low back disability and should specify whether the low back disability causes limitation of motion, pain, spasm, severe guarding, abnormal gait, or abnormal spine contour. The examiner should report whether the low back disability includes degenerative disc disease and produced related neurological manifestations. If so, the examiner should indicate whether the degenerative disc disease has required any periods of doctor prescribed bed rest. The examiner should also indicate if the disc disease results in partial or complete paralysis, neuralgia or neuritis of any nerve. If so, the examiner should specify the nerve involved, and express an opinion as to whether any partial paralysis, neuritis or neuralgia is mild, moderate or severe. The examiner should provide a rationale for the opinions. 7. Following completion of all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and her representative who should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2010). _________________________________________________ STEPHEN L. WILKINS 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) (2010).