Citation Nr: 1304544 Decision Date: 02/07/13 Archive Date: 02/19/13 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 Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active 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 testified at 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), and in May 2010, the Court granted a joint motion to remand this issue back to the Board for further development. This claim was subsequently remanded by the Board in November 2010 and May 2012. 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 Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's claim was previously remanded by the Board in May 2012 so that he could be provided a VA examination in which an opinion regarding etiology was provided. While the Veteran was indeed afforded a VA examination, the examiner did not provide all of the opinions requested by the Board in May 2012. Specifically, the Board requested that the examiner offer an opinion as to "whether the Veteran's fibromyalgia is "aggravated by" his service-connected anxiety neurosis with depressive features. While the examiner did offer an opinion regarding direct service connection and secondary service connection, no opinion was provided regarding aggravation. As such, further remand is necessary so that the previously requested medical opinion can be provided. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file and a copy of this remand should be forwarded to the May 2012 VA examiner so that an addendum to her previous examination report can be prepared. If this examiner is no longer available, the Veteran's claims file and a copy of this remand must be forwarded to a physician or practitioner of similar qualification for the preparation of the requested addendum. A new examination of the Veteran is not necessary unless deemed to be by the assigned examiner. After reviewing the Veteran's claims file and the examination report of May 2012, the examiner should prepare an addendum to the May 2012 VA examination report answering the question regarding aggravation. Specifically, the examiner is asked to opine as to whether the Veteran's fibromyalgia has been aggravated by (i.e., aggravated beyond the natural progression of the disease) as a result of his service-connected anxiety neurosis with depressive features. The VA examiner must provide a complete rationale for all opinions offered. 2. The agency of original jurisdiction (AOJ) should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 3. The AOJ should then readjudicate the claim on appeal in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. 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. 2012). _________________________________________________ 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. 38 C.F.R. § 20.1100(b) (2012).