Citation Nr: 1311999 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-45 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disability. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to an increased rating for degenerative disease of the lumbar spine, currently evaluated as 20 percent disabling. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The June 2009 rating decision on appeal granted the Veteran service connection and a noncompensable rating for radiculopathy of the left lower extremity. In November 2010 the RO granted the Veteran a 10 percent rating for his radiculopathy of the left lower extremity disability, effective from the date of service connection. The Veteran now seeks an initial rating in excess of 10 percent. A review of the Veteran's virtual VA folder reveals pertinent VA treatment records that have not yet been considered by the RO in adjudicating the Veteran's claims. As the foregoing decision does not deny any of the Veteran's claims, remand for initial RO review of this evidence with regard to the dismissed claims and with regard to the fibromyalgia claim is not required. The issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At a June 2011 hearing, the Veteran stated that he wished to withdraw his appeal with respect to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disability. 2. At the June 2011 hearing, the Veteran stated that he wished to withdraw his appeal with respect to the issue of entitlement to an increased rating for degenerative disease of the lumbar spine. 3. The Veteran developed fibromyalgia due to an injury in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the claim for whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disability. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal by the Veteran have been met with respect to the claim for entitlement to an increased rating for degenerative disease of the lumbar spine. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. Fibromyalgia was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Appeals must be withdrawn in writing except for appeals withdrawn on the record at a hearing. Id. At his June 2011 hearing before the Board, the appellant requested withdrawal of his appeal to reopen a claim for service connection for a left hip disability and requested withdrawal of his appeal for an increased rating for degenerative changes of the lumbar spine. Accordingly, the Board does not have jurisdiction to review the appeal for these issues, and the appeal to reopen a claim for service connection for a left hip disability, and the appeal for an increased rating for degenerative changes of the lumbar spine, are dismissed. II. Fibromyalgia In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Veteran's asserts that he is entitled to service connection for fibromyalgia as a result of an injury in 1983. He attributes his fibromyalgia to an in-service injury when he fell and injured his back in 1983. At his June 2011 hearing he reported that he went to a private doctor that specializes in treating fibromyalgia and that the doctor told him that his fibromyalgia had developed as a result of the injury in 1983. The service treatment records confirm that the Veteran injured his back when he fell down a ladder while on board ship in September 1983. The remaining service treatment records show frequent complaints and treatment for chronic low back pain. The Veteran was granted service connection for degenerative changes of the lumbar spine effective from discharge from service in May 1991. A September 2000 private medical record notes that the Veteran had arthralgias of the knees, elbows and shoulders. A May 2009 VA examination report states that the Veteran reported arthralgias throughout his body since 1990. The examiner noted that the Veteran saw a rheumatologist in February 2009 who stated that the Veteran's diffuse arthralgias are consistent with fibromyalgia. The VA examiner stated that from reviewing the service medical records, from the physical examination, from the Veteran's history, from reading the electronic progress notes of a VA physician and a rheumatologist, it was his opinion that the Veteran has fibromyalgia. On VA examination in October 2010, the examiner stated that the Veteran's symptoms and the physical findings are consistent with fibromyalgia. The examiner found point tenderness in the scapular areas bilaterally, the paraspinous areas and the thoracic and lumbar area, the proximal and distal arms posteriorly and anteriorly, as well as the calves and thighs posteriorly and anteriorly. The examiner opined that there was no evidence that the Veteran's fibromyalgia was due to an undetermined or undiagnosed illness. The examiner concluded it was likely that the muscular pain was related to the degenerative changes in the lumbar spine with radiculopathy. The Veteran submitted an October 2010 statement from a private physician. The examiner stated that the cause of fibromyalgia is not known. He related that it is possibly genetic, but can be exacerbated on a lifetime basis after an accident or injury. He indicated that the Veteran's history of exacerbation subsequent to the 1983 injury is consistent with that and the medical literature. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease process diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in In addition, because the Veteran has confirmed service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1) (2012). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) not limited to irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Objective indications of chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). A qualifying chronic disability shall be considered service connected unless there is affirmative evidence that the disability was not incurred during active service in the Southwest Asia theater of operations or if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of disability. 38 C.F.R. § 3.317(a)(ii)(7) (2012). In this case the Veteran has fibromyalgia for which he takes continuous medication to control the disorder. See 38 C.F.R. § 4.71a, Diagnostic Code 5025 (2012). In this regard, VA medical records show that he was on Lyrica and Flexeril but the pain still kept him from sleeping. See VA medical record dated in September 2010. Thus, the disability manifests to a degree of at least 10 percent. The service department confirmed that the Veteran served in Southwest Asia from August 30, 1990 to March 23, 1991. The DD Form 214 also shows the Veteran was awarded the Southwest Asia Defense Medal with 2 Bronze Stars. Again, the Veteran is diagnosed as having fibromyalgia which is a disorder covered by 38 C.F.R. § 3.317 (2012). However, a VA examiner and a private physician have instead attributed the fibromyalgia to the Veteran's back injury in service and the resulting lumbar spine degenerative disc disease, which also provides a basis upon which service connection can be granted. The Board recognizes that fibromyalgia was not diagnosed during service and for a number of years thereafter. However, the record clearly indicates that the Veteran experienced an injury during service serious enough to cause the Veteran chronic pain ever since. Both VA and private physicians have opined that the Veteran currently has fibromyalgia. Furthermore, a private physician has opined that the Veteran experienced lifetime exacerbation of fibromyalgia due to his in-service injury. The VA examiner in 2010 also attributed all of the muscular pain to the degenerative changes in the lumbar spine with radiculopathy. There is no medical opinion to the contrary. Consequently, the Board finds that the evidence is at least in equipoise that the Veteran's current fibromyalgia is due to service. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The appeal to reopen a claim for service connection for a left hip disability is dismissed. The appeal for an increased rating for degenerative changes of the lumbar spine is dismissed. Service connection for fibromyalgia is granted. REMAND The Veteran asserts that he is entitled to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. On VA examination in October 2010 the Veteran reported pain and decreased sensation of strength in his legs. At his June 2011 hearing the Veteran reported many additional symptoms he related to his left lower extremity radiculopathy. He reported a burning sensation in his left lower extremity and reported that his left leg goes numb from behind the knee all the way down to his foot. He also reported that the pain in his left lower extremity had become more constant. Additionally he reported weakness and falling down due to his left lower extremity radiculopathy. As the Veteran's testimony indicates that the severity of his left lower extremity disability may have increased since the most recent rating examination, an additional examination to determine the current severity is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran's virtual electronic file contains pertinent VA treatment records that were not considered by the most recent statement of the case. These records, as well as any additional new VA treatment records, should be considered by the RO on remand. Finally, a recent medical record from a private physician dated in December 2012 indicates that the Veteran planned to pursue Social Security Administration (SSA) disability benefits as an option. On remand, it should be clarified whether the Veteran has filed for SSA disability benefits and, if so, records should be obtained from that agency. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA medical records dated from November 1, 2010 to present. 2. Contact the Veteran and request that he identify any private medical records not already of record that are relevant to his claim and that he clarify whether or not he has filed for SSA disability benefits. Attempt to obtain any records identified by the Veteran provided that any necessary authorization forms for the release of private records are completed and returned to VA. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. When the above action has been accomplished, afford the Veteran a comprehensive VA neurological examination of his left lower extremity to determine the current extent and severity of the service-connected radiculopathy. The examiner should review all relevant evidence in the claims file, and the examination report should reflect consideration of the Veteran's documented, relevant medical history. All appropriate tests and studies should be conducted, and all clinical findings should be reported in detail. The examiner should make a finding as to whether the Veteran's left radiculopathy is manifested by complete or incomplete paralysis and identify the nerves or nerves involved. If the paralysis is incomplete, the examiner should indicate whether the condition is mild, moderate, moderately severe, or severe with marked muscular atrophy. If the paralysis is complete, the examiner should discuss the specific manifestations of the complete paralysis particular to the nerve or nerves affected, to include whether the foot dangles and drops, whether there is no active movement of muscles below the knee possible, or whether flexion of the knee is weakened or lost. A complete rationale for all opinions expressed must be provided. 4. Upon completion of the above requested development, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs