Citation Nr: 1106304 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 08-39 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 50 percent for fibromyalgia (manifested by depression, fatigue, sleep disturbance, memory deficit, lack of concentration, joint pain, decreased sex drive, and headaches) and Raynaud's of the hands and feet. 2. Entitlement to a rating in excess of 40 percent for low back strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The veteran served on active duty from February 1986 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, WA and Pittsburg, PA. 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 By way of procedural history, the Veteran had been granted service connection for an undiagnosed illness manifested by fatigue, sleeplessness, memory loss; an undiagnosed illness manifested by tension headaches; and Raynaud's disease, separately rated as 10, 10, and 20 percent disabling, respectively. A May 2003 rating decision then granted service connection for fibromyalgia and assigned a 40 percent evaluation. However, the 40 percent rating for fibromyalgia encompassed the formerly "undiagnosed" conditions mentioned above to afford the Veteran a higher rating. In the March 2005 decision on appeal, the RO increased the rating to 50 percent disabling and evaluated the previously service-connected symptoms of Raynaud's disease and symptoms of fibromyalgia together indicating that the law did not allow compensation for the same symptoms more than once. However, the Board notes that the basis for the increased rating for his fibromyalgia was due the Veteran's psychiatric symptoms in which he was evaluated as 50 percent disabling under Diagnostic Code 9434 for Major Depressive Disorder, and his symptoms of Raynaud's disease did not appear to be considered. In other words, the discussion of the reasons and bases clearly demonstrated that the RO did not rely on any overlapping symptoms. On remand, the RO must fully reconsider all evaluations assigned for fibromyalgia and its "component disabilities" of depression, fatigue, sleep disturbance, memory deficit, lack of concentration, joint pain, decreased sex drive, headaches, and Raynaud's of the hands and feet and determine whether it is more advantageous to the Veteran to be rated for the components or for the systemic fibromyalgia. It is important to recognize that effects of depression, anxiety, Raynaud's like symptoms, sleep disturbance, fatigue, and headaches may indeed be separated out under Code 5025, as fibromyalgia may be rated "with or without" such associated conditions. Also, a subsequent rating decision in February 2006 deferred the issue seeking an increased rating fibromyalgia until a VA psychiatric examination was done. A review of the claims file reflects that a psychiatric examination was never completed. The Board notes that a February 2007 examination was ordered by VA through the American Consulate General in Frankford, however, this examination did not address the severity of the Veteran's psychiatric symptoms, Raynaud's disease, headaches, fibromyalgia, sleep disturbance, fatigue, or any other symptoms that have been associated with the Veteran's disability. Also subsequent medical records indicated that he had a worsening of symptoms of Raynaud's syndrome and now described a low back disorder as "[ankylosing] spondylitis" and indicative of radiculopathic changes. See March 2008 report, an undated case history, and August 2007 physician's letter. The VCAA requires VA to provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Therefore, the Board is of the opinion that the Veteran should be provided the appropriate VA examinations with adequate assessment of all symptoms associated with his service-connected fibromyalgia and low back strain. Additionally, it appears that pertinent medical evidence remains outstanding. In November 2007, the Veteran submitted evidence that showed that Social Security Administration (SSA) disability benefits had been awarded. Also, September 2006 correspondence from the Office of Personnel Management indicated that in review of his medical records, he was found to be disabled from his position as a carrier due to depression and fibromyalgia. A review of the record reveals that VA has not made an attempt to obtain the SSA or US Postal Service records. VA has a statutory duty to acquire both the SSA decision and the supporting medical records pertinent to a claim. Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Further, Veterans Claims Assistance Act of 2000 (VCAA) emphasizes the need for VA to obtain records from other Government agencies. 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). Of particular significance here, the VCAA requires VA to continue its efforts to obtain records and notify the appellant if we cannot get the records. 38 U.S.C.A. § 5103A (b)(3) (West 2002). The Board notes that during the pendency of the appeal the Veteran moved from the United States to Germany, and then to Croatia. In the last correspondence received by the Veteran in August 2009, the Veteran provided a new mailing address in Croatia; however, VA records were updated in December 2009 that showed an address in Colorado. Prior to any development, the RO/AMC should verify the Veteran's current address. Furthermore, after the claims folder was forwarded to the Board for review on appeal, additional medical evidence was received in August 2009 that related to the Veteran's increased rating fibromyalgia and low back strain claims. No waiver of initial RO consideration of this evidence was provided. The provisions of 38 C.F.R. § 20.1304 (2010) specifically provide that any pertinent evidence referred to the Board by the agency of original jurisdiction under § 19.37(b), "must be referred to the agency of original jurisdiction (RO) for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." This evidence, which relates to the Veteran's claims on appeal, is pertinent. In the absence of a waiver by the Veteran of initial RO consideration of this evidence, the Board is bound to remand the case to the RO to provide original consideration in accordance with the governing regulation. Finally, on remand the RO must consider the application of 38 C.F.R. § 3.321(b), permitting extraschedular evaluation, with regard to each service connected disability. That regulation would permit, potentially, assignment of up to a 100 percent evaluation for each disability, triggering potential entitlement to ancillary and special compensation benefits. The assignment of a single TDIU which encompasses all disabilities is not the equivalent. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to verify the Veteran's current address, including by contacting the Veteran himself or his service representative, if necessary. All subsequent correspondence from VA to the Veteran should be sent to the most recently established correct address of record. 2. The RO/AMC should ask the Veteran to identify all sources of evaluation or treatment he has received for his low back strain and fibromyalgia, as well as depression, fatigue, sleep disturbance, memory deficit, lack of concentration, joint pain, decreased sex drive, headaches, and Raynaud's of the hands, then secure complete clinical records of all such evaluations and/or treatment from the sources identified. If any records sought are unavailable, the Veteran and his representative should be so notified. 3. The Veteran should be advised that VA is in the process of obtaining his Social Security and United States Postal Service records. 4. SSA should be contacted, and all medical evidence and documentation associated with the grant of SSA disability benefits should be requested. All records received from SSA must be added to the Veteran's claims file. If the search for such records has negative results, documentation to that effect must be included in the claims file. 5. The United States Post Office and/or the Office of Personnel Management (OPM) should be contacted, and all medical evidence that was associated with OPM's finding that the Veteran was disabled from his position as a carrier due to depression and fibromyalgia should be requested. If the search for such records has negative results, documentation to that effect must be included in the claims file. 6. Thereafter, the RO/AMC should arrange for the Veteran to undergo appropriate VA examinations to determine the current severity of his service- connected low back strain and fibromyalgia (manifested by depression, fatigue, sleep disturbance, memory deficit, lack of concentration, joint pain, decreased sex drive, and headaches) and Raynaud's of the hands and feet. All indicated studies should be performed, and all clinical findings should be reported in detail. Based on the examinations and a review of the record: a. with regard to the Veteran's service- connected low back strain, the examiner should use a goniometer or similar device to measure the Veteran's range of motion in his thoracolumbar spine; the results must be recorded. If such an instrument is not used in determining range of motion, the examiner must specifically explain why its use was not warranted or necessary. The examination report should identify any objective evidence of pain and associated objective neurological abnormalities, to include neurological abnormalities in either lower extremity. The examination report should also identify any recent incapacitating episodes that the Veteran has experienced in the past 12 months, and the specific causes of such episodes. The clinician should also discuss how the Veteran's disability impacts his employment (if at all) and his activities of daily living. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should also discuss whether pain significantly limits the Veteran's functional ability during flare-ups or when the thoracolumbar spine is used repeatedly over a period of time. Any and all opinions must be accompanied by a complete rationale. b. with regard to the Veteran's fibromyalgia, the examiner should identify all current disabilities and manifestations associated with fibromyalgia, and should describe such in full. The examiner should be provided with the rating criteria for fibromyalgia, Raynaud's disease, headaches, and major depressive disorder and address the Veteran's related symptoms against the relevant criteria. (See Diagnostic Codes 5025, 6354, 7117, 8100 and 9434). The clinician should also discuss how this disability impact the Veteran's employment (if at all) and his activities of daily living. Any and all opinions must be accompanied by a complete rationale. If the Veteran is living in Croatia at the time of the examination, the RO/AMC should tailor its assistance to schedule the examinations through the American Consulate or Embassy in Croatia. (The Veteran is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2010).) 5. The RO/AMC should review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claims on appeal. Readjudication must include a full discussion of the impact of 38 C.F.R. § 4.14 and the application of those Diagnostic Codes most beneficial to the Veteran, as well as a discussion of 38 C.F.R. § 3.321(b). If any of the benefits sought remain denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless he is notified. The appellant 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). _________________________________________________ CHERYL L. MASON 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).