Citation Nr: 1302200 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-03 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for temporomandibular joint dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had verified active duty service between February 25, 1991 and March 15, 1991, and active duty for training ("ACDUTRA") between October 22, 1982 and February 3, 1983. She also had numerous periods of additional ACDUTRA, as well as inactive duty for training ("INACDUTRA") between 1983 and 2004 as a member of the Air Force Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded this matter in October 2011 for additional development, which has been substantially completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran avers that she suffers an acquired psychiatric disorder, fibromyalgia, and temporomandibular joint dysfunction (TMJ), each as a result of active duty service. Alternatively, she contends that each of the disorders was aggravated by military service. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claims. First, the Board is unable to determine the onset of the Veteran's acquired psychiatric disorder. Buddy statements from fellow service personnel said they observed mood abnormalities in the 1980s and 1990s. Treatment records show she first complained of depression on March 15, 2000, during a period of ACDUTRA. Anxiety was diagnosed on March 19, 2004 while posttraumatic stress disorder, anxiety and depression were diagnosed on November 29, 2004. These diagnoses were not rendered during periods of ACDUTRA. On December 6, 2004, upon reporting for a period of ACDUTRA she was diagnosed with bipolar disorder. Because bipolar disorder symptoms can include anxiety, depression, and abnormal mood, the Board is unable to determine the date of onset without a medical opinion. Therefore, on remand, the Veteran should be scheduled for a VA examination to determine whether bipolar disorder or any other acquired psychiatric disorder had its onset during a period of active service, ACDUTRA, or INACDUTRA or if her condition was aggravated beyond the normal progression of the disease during any period of active duty, ACDUTRA or INACDUTRA. Second, treatment records are not clear whether she currently has fibromyalgia. Available treatment records do not show the initial diagnosis and the subsequent diagnosis appear to be based on the Veteran's report of fibromyalgia versus the objective evidence. However, since the Veteran is a nurse, the Board finds that her statements are enough to satisfy the low threshold in McLendon for requiring a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that a remand is necessary to schedule a VA examination to determine whether she has fibromyalgia, and if so, whether it had its onset during or was aggravated beyond the normal progression of the disease during any period of active duty, ACDUTRA or INACDUTRA. Finally, the Board finds that additional development is needed prior to adjudicating the claim for service connection for TMJ. The Veteran, a flight nurse, believes that her ACDUTRA flight time aggravated her TMJ condition. She submitted an article in support of her claim. Accordingly, the Board finds that a remand is necessary to schedule a VA examination to determine whether her periods of ACDUTRA aggravated her TMJ condition beyond the normal progression of the disability. Id. Accordingly, the case is REMANDED 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) (2012). Expedited handling is requested.) 1. Schedule the Veteran for an examination to determine the nature and etiology of any currently acquired psychiatric disorder. The claims file and a copy of this Remand must be provided to the examiner and the examiner must indicate review of the claims file in the examination report. The RO must inform the examiner of each period of active duty, ACDUTRA and INACDUTRA service. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should diagnose all current psychiatric disorders and provide the following: (a) Is there clear and unmistakable evidence that any psychiatric disorder pre-existed the Veteran's period of active service from February 25, 1991 and March 15, 1991? (b) If so, is it at least as likely as not (50 percent or more probability) that any preexisting psychiatric disorder underwent a permanent increase in severity during or as a result of her period of active service? The examiner should state whether any permanent increase in the underlying pathology was due to normal progression of the disorder. (c) If not, is it at least as likely as not that any current psychiatric disorder was incurred during or results from (is proximately due to) the Veteran's period of active service from February 25, 1991 and March 15, 1991 or a specific period of ACDUTRA or INACDUTRA? (d) Is it at least as likely as not that any psychiatric disorder was aggravated (permanently increased in severity beyond the natural progress of the disorder) during a specific period of ACDUTRA or INACDUTRA? The examiner must consider the Veteran's lay statements and give a complete rationale for all conclusions made. The rationale should be based on examination findings, historical records, and medical principles. If any requested opinion cannot be provided without resort to pure speculation, the examiner should state why. 2. Schedule the Veteran for an examination to determine the existence and etiology of her fibromyalgia. The claims file and a copy of this Remand must be provided to the examiner and the examiner must indicate review of the claims file in the examination report. The RO must inform the examiner of each period of active duty, ACDUTRA and INACDUTRA service. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. If fibromyalgia is diagnosed, the examiner should provide the following: (a) Is there clear and unmistakable evidence that fibromyalgia pre-existed the Veteran's period of active service from February 25, 1991 and March 15, 1991? (b) If so, is it at least as likely as not (50 percent or more probability) that the fibromyalgia underwent a permanent increase in severity during or as a result of her period of active service? The examiner should state whether any permanent increase in the underlying pathology was due to normal progression of the disorder. (c) If not, is it at least as likely as not that her fibromyalgia was incurred during or results from (is proximately due to) the Veteran's period of active service from February 25, 1991 and March 15, 1991 or a specific period of ACDUTRA or INACDUTRA? (d) Is it at least as likely as not that fibromyalgia was aggravated (permanently increased in severity beyond the natural progress of the disorder) during a specific period of ACDUTRA or INACDUTRA? The examiner must consider the Veteran's lay statements, including her assertions that prolonged sitting or sitting in one position for extended periods during ACDUTRA aggravated her condition. The physician must give a complete rationale for all conclusions made. The rationale should be based on examination findings, historical records, and medical principles. If any requested opinion cannot be provided without resort to pure speculation, the examiner should state why. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of her TMJ. The claims file and a copy of this Remand must be provided to the examiner and the examiner must indicate review of the claims file in the examination report. The RO must inform the examiner of each period of active duty, ACDUTRA and INACDUTRA service. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should provide the following: (a) Is there clear and unmistakable evidence that TMJ pre-existed the Veteran's period of active service from February 25, 1991 and March 15, 1991? (b) If so, is it at least as likely as not (50 percent or more probability) that TMJ underwent a permanent increase in severity during or as a result of her period of active service? The examiner should state whether any permanent increase in the underlying pathology was due to normal progression of the disorder. (c) If not, is it at least as likely as not (50 percent or more probability) that TMJ was incurred during or results from (is proximately due to) the Veteran's period of active service from February 25, 1991 and March 15, 1991 or a specific period of ACDUTRA or INACDUTRA? (d) Is it at least as likely as not that TMJ was aggravated (permanently increased in severity beyond the natural progress of the disorder) during a specific period of ACDUTRA or INACDUTRA? The examiner must consider the Veteran's lay statements, including her allegation that flight time aggravated her condition. The examiner must also address the article addressing the relationship between flying and occlusional mandibular dysfunction located in Volume 4 of the claims file. The physician must give a complete rationale for all conclusions made. The rationale should be based on examination findings, historical records, and medical principles. If any requested opinion cannot be provided without resort to pure speculation, the examiner should state why. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of her claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising her of the time, date, and location of the scheduled VA examinations must be included in the claims folder and must indicate that it was sent to her last known address of record. If she fails to report to the examinations, it must be noted in the claims folder whether the notification letter was returned as undeliverable. 5. Upon completion of the foregoing, readjudicate the claims on appeal. If a benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The Veteran 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 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. 2012). _________________________________________________ L.M. BARNARD 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. 38 C.F.R. § 20.1100(b) (2012).