Citation Nr: 1216745 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 08-09 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for fibromyalgia, to include as secondary to service-connected anxiety neurosis with depressive features. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from November 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge at the RO in Muskogee, Oklahoma in June 2009. A written transcript of this hearing has been prepared and incorporated into the evidence of record. This claim was previously denied by the Board in September 2009. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2010, the Court granted a joint motion to remand agreed upon by the Veteran and the Secretary of VA. The September 2009 Board decision was vacated, and the claim was remanded back to the Board. In November 2010, the Board remanded this matter for additional evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Board is cognizant of the fact that the Veteran's case has been in adjudicative status since 2008, and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. The Veteran asserts that his currently diagnosed fibromyalgia is proximately due to or, in the alternative, was aggravated by, his service-connected anxiety neurosis with depressive features. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). For the showing of 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. See 38 C.F.R. § 3.303(b) (2011). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. See 38 C.F.R. § 3.310(a) (2011). Establishing service-connection on a secondary basis requires evidence sufficient to show: (1) that a current disorder exists and, (2) that the current disorder was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2011); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). When aggravation of a veteran's nonservice-connected disorder is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen, supra. The Board notes that the Veteran's service treatment records are completely negative for any complaints of or treatment for fibromyalgia. However, during his June 2009 Travel Board hearing, the Veteran asserted that his VA physician had informed him that fibromyalgia was generally related to depression and events such as his in-service motorcycle accident. To the extent that the Veteran invites the Board to draw the conclusion, based on no medical evidence that his current disability is due to or secondary to an injury in service, the Board declines to do so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Accordingly, a VA examination must be obtained in order to determine the nature and etiology of the Veteran's currently diagnosed fibromyalgia. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC is requested to obtain any outstanding VA treatment records for the Veteran, dated from August 2009 to the present. Any correspondence received in response to this request should be memorialized in the Veteran's VA claims file. 2. The RO/AMC is also requested to contact the Veteran to determine if any outstanding private treatment records exist regarding his currently diagnosed fibromyalgia. If so, all procedures must be followed to obtain such records. Any correspondence received in response to this request should be memorialized in the Veteran's VA claims file. 3. After obtaining any available outstanding medical evidence, the RO/AMC is requested to schedule the Veteran for an appropriate VA examination with an appropriate expert, to determine the nature and etiology of the currently diagnosed fibromyalgia. The VA examiner should thoroughly review the Veteran's VA claims file, as well as a complete copy of this Remand, in conjunction with the examination, and note that this has been accomplished in the examination report. The VA examiner should specifically address the following: (a) State whether the Veteran has a current diagnosis of fibromyalgia. (b) If diagnosed with fibromyalgia, the VA examiner should state whether it is at least as likely as not that the Veteran currently suffers from this disorder as a result of his active duty service. It would be helpful if the VA examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion 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 provide a complete rationale for any opinion provided. (c) Thereafter, the VA examiner should state whether the Veteran's fibromyalgia was "caused by" or "due to" his service-connected anxiety neurosis with depressive features. The VA examiner should provide a complete rationale for any opinion provided. (d) The VA examiner should also state whether the Veteran's fibromyalgia is "aggravated by" (i.e., aggravated beyond the natural progression of the disease) his service-connected anxiety neurosis with depressive features. The VA examiner should provide a complete rationale for any opinion provided. 4. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2011). _________________________________________________ K. A. KENNERLY Acting 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. See 38 C.F.R. § 20.1100(b) (2011).