Citation Nr: 1112843 Decision Date: 03/31/11 Archive Date: 04/07/11 DOCKET NO. 04-43 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for insomnia on a basis other than undiagnosed illness. 2. Entitlement to service connection for diarrhea on a basis other than undiagnosed illness. 3. Entitlement to service connection for a skin disorder. 4. Entitlement to service connection for hypothyroidism. 5. Entitlement to an initial rating in excess of 10 percent for fibromyalgia with headaches from June 29, 2001, to May 18, 2010, and a rating in excess of 20 percent from May 18, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The service department has indicated that the appellant had service in the Army National Guard from August 12, 1988, to October 20, 1988, and active duty under Title 10 from September 20, 1990 to June 21, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. On July 11, 2005, the appellant offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been associated with the claims folder. In March 2006, the Board remanded the case to the RO for further evidentiary development. In a January 2010 decision, the Board remanded the issue of entitlement to service connection for asthma. The Board also denied claims of entitlement to service connection for arthritis, insomnia, diarrhea, a skin disorder, and hypothyroidism, all to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was submitted in October 2010; and, in October 2010 the Court issued an order granting the motion, vacating the January 2010 Board decision with respect to its denial of service connection for hypothyroidism, service connection for a skin disorder, and service connection for diarrhea and insomnia on bases other than as an undiagnosed illness. The matter was remanded to the Board for readjudication consistent with the motion. REMAND As noted above, the matter on appeal was remanded by the Court for action in compliance with the instruction in the Joint Motion for Remand. Based on review of the claims folder, the Board finds that additional development is necessary prior to adjudication of the matters addressed in the joint motion. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Diarrhea and Insomnia As previously noted, an October 2010 order of the Court vacated the Board's January 2010 decision denying the appellant's claims of entitlement to service connection for diarrhea and insomnia on a basis other than as an undiagnosed illness. The parties to the joint motion noted that the Board's decision and evidence of record suggested that diarrhea and insomnia may be related to hypothyroidism and fibromyalgia. They also noted that, in the January 2010 decision, the Board had granted service connection for fibromyalgia. Therefore, the parties agreed that the Board erred in failing to develop the claims for service connection for diarrhea and insomnia as secondary to the service-connected fibromyalgia. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Pursuant to the joint motion, an additional medical opinion is needed in order to determine whether the appellant's diarrhea and insomnia have been caused or aggravated by his service-connected fibromyalgia. On remand, the agency of original jurisdiction (AOJ) should obtain a medical opinion on this point. Hypothyroidism and Skin Disorder The October 2010 joint motion, on which the Court's order was based, requested a remand because it was determined that the Board's explanation was inadequate with regard to its characterization of the August 2006 examiner's opinion pertaining to the appellant's skin condition and hypothyroidism. It was noted that the Board's characterization of the examiner's comments as definite opinions against the claim was erroneous. On the contrary, the parties to the joint motion agreed that the examiner's statement that he could not provide an etiological opinion without resorting to speculation made the August 2006 VA examination inadequate for rating purposes. The Board observes in this regard that an examination is not per se inadequate merely because an examiner concludes that he or she is unable to offer a nonspeculative opinion. Rather, the Court has held that, if an examiner concludes that a nonspeculative opinion cannot be offered, he or she must explain the basis for such an opinion or the basis must otherwise be apparent from the evidence. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that to be adequate, more than a conclusion needs to be expressed by the examiner that the etiology of a particular condition is not known or is unknowable. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, a sufficient rationale and supporting explanation need to be provided that addresses such matters as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to arrive at an opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010) (in order to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record.) Here, it is unclear from the record why the August 2006 VA examiner could not provide a medical opinion without resorting to speculation. Without a clear understanding from the examiner as to whether further information would be needed or whether the limits of medical knowledge have been exhausted, the conclusion in the report of the August 2006 VA examination is inadequate and a new VA examination is in order. The RO should schedule the Appellant for another VA examination to determine the nature and etiology of diagnosed skin disorder and hypothyroidism. The examiner should be asked to determine the medical probabilities that the appellant's current skin disorder and hypothyroidism are related to his period of active military service. If the examiner is unable to provide a medical opinion, he or she should so state and provide a rationale that discusses why an opinion cannot be provided or explain what additional evidence is needed to arrive at an opinion. Prior to any examination, VA should ask the Appellant to identify any outstanding records of pertinent VA and private treatment, and obtain those records. Fibromyalgia By a January 2010 rating decision, the AOJ implemented the Board's January 2010 decision that granted entitlement to service connection for fibromyalgia, to include headaches. The AOJ assigned a 10 percent initial disability rating, effective June 29, 2001. In March 2010, the appellant submitted a notice of disagreement with the 10 percent disability evaluation. This constitutes a timely notice of disagreement (NOD) with the January 2010 rating decision. Consequently, a remand is required for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The appellant also must be given an opportunity to perfect an appeal to the Board concerning this rating issue by submitting a substantive appeal (e.g., a VA Form 9 or equivalent statement). See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305 (2010). The Board notes that a subsequent rating action in August 2010 increased the evaluation for fibromyalgia from 10 percent to 20 percent, effective May 18, 2010. The appellant has not indicated that he is satisfied with this evaluation. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a claimant is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should furnish the appellant with copies of all pertinent laws and regulations governing the award of service connection on both a direct and secondary basis. In addition, the AOJ should review the appellant's claims file, and ensure that the appellant is sent a corrected VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the appellant of the evidence and information necessary to establish entitlement to service connection for diarrhea and insomnia on both a direct and secondary basis. 2. After all outstanding records have been associated with the claims file, the appellant should be afforded VA examinations to determine the current nature and etiology of his claimed skin disorder, hypothyroidism, diarrhea and insomnia. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner(s). Any indicated evaluations, studies, and tests should be conducted. Following evaluation of the appellant, the examiner(s) must express opinions as to the medical probabilities that any skin disorder, hypothyroidism, diarrhea or insomnia was caused or made chronically worse by his service-connected fibromyalgia. The examiner(s) should also provide opinions as to the medical probabilities that a skin disorder, hypothyroidism, diarrhea, or insomnia is traceable to the appellant's period of military service. In offering any opinion, the examiner(s) must consider the full record, to include the appellant's lay statements and the August 2006 VA examiner's opinion. The rationale for any opinion offered should be provided. If any examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) 3. The AOJ must ensure that all requested actions have been accomplished. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. The AOJ must provide the appellant a statement of the case with respect to his claim for higher evaluations for fibromyalgia. The appellant should be informed that he must file a timely substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). 5. The AOJ should ensure that the development of the claim of service connection for asthma that had been requested in the Board's January 2010 remand is completed. Thereafter, re-adjudicate the appellant's claims on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted. The SSOC must provide reasons and bases for the decisions reached. The appellant and his representative should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the appellant until he receives further notice. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. 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 case 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. 2010). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).