Citation Nr: 1323508 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-33 610 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service connected disability. 3. Entitlement to service connection for a disability cluster manifested by fibromyalgia with depression and rheumatoid arthritis, to include as secondary to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2007 rating decision by the RO that denied claims for service connection for sinusitis, a bilateral hip disability, and a disability cluster manifested by fibromyalgia with depression and rheumatoid arthritis. In July 2008, a notice of disagreement (NOD) was filed with the denial of these climes. A statement of the case (SOC) was issued in October 2008 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in October 2008. Supplemental SOCs were completed in October 2009 and November 2012. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on her part, is required. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claims on appeal is warranted. In the Veteran's original claim for service connection for the disabilities at issue filed in October 2000 and an accompanying statement [the adjudication of these claims has been delayed due to other appeals to the Board that were not finally resolved until a November 2010 decision by the Board], she raised the matters of entitlement to service connection for a bilateral hip disability and a disability cluster manifested by fibromyalgia with depression and rheumatoid arthritis as secondary to the Veteran's service-connected back and gynecological (endometriosis, status post total abdominal hysterectomy with bilateral salpingo-oopherectomy) conditions. The Veteran has also, including by way of argument presented in her October 2008 substantive appeal, asserted entitlement to service connection for the disabilities at issue on a direct basis. The Board is required to consider all theories of entitlement raised by the appellant, or raised n the record, in adjudicating these claims. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). With respect to direct service connection, the service treatment reports (STRs), to include the report of the April 1978 separation examination and medical history collected at that time, do not reflect any evidence of a hip disability. The STRs do reflect evidence of psychiatric disability and that the Veteran was prescribed with valium (See eg. August 14, 1975, mental hygiene clinic report referencing anxiety and depression ; December 3, 1976, STR reflecting situational stress; and February 2, 1977, STR reflecting an assessment of anxiety syndrome.) The medical history collected in conjunction with the April 1978 separation examination reflects the Veteran reporting psychiatric problems. While sinusitis was not specifically diagnosed during service, multiple STRs reflect treatment for upper respiratory complaints and symptoms. Pertinent post service evidence includes VA outpatient treatment reports dated from 1994 reflecting treatment for psychiatric problems and such reports dated from 1997 documenting treatment for fibromyalgia, fatigue, and related symptoms. A November 1997 VA outpatient report reflects treatment for sinusitis. Also of record is a June 2001 statement from a private physician noting that the Veteran had a "complicated medical history" with generalized weakness, fatigue, fibromyalgia, and depression. A December 2001 private treatment report noted that the Veteran had been unable to perform her job since May 2001 due to rheumatoid arthritis that had caused muscle pain and severe fatigue. As for more current evidence of pertinent disability, recent medical problem lists, to include as reflected on a May 21, 2009, VA clinical report physically of record, reflect fibromyalgia, depression, and arthralgia in the hip with pain on rotation and in the groin. Records contained in the Virtual VA file (VA's electronic data storage system) include one dated January 26, 2012, (and other recent occasions), reflecting complaints of diffuse burning hip pain. The Virtual VA file also includes recent evidence of sinusitis, to include a report from an outpatient visit on April 11, 2011, noting that that the Veteran had been receiving treatment for acute sinusitis and had undergone a September 2010 septoplasty for a nasal obstruction. The Virtual File contains numerous references to fibromyalgia, most recently a November 19, 2012, report noting that the Veteran took daily medication, duloxetine, for depression and fibromyalgia. Also contained in the Virtual File is a November 26, 2012, psychotherapy report indicating that the Veteran continues to suffer from depression. Given the contentions and relevant in-service and post service of record, some of which has been set forth above, the Board finds that VA examinations that include an opinion as to whether the Veteran has sinusitis that is etiologically related to service and opinions as to whether she has a hip disability or disability cluster manifested by fibromyalgia with depression and rheumatoid arthritis that is etiologically related to service or the service connected back and gynecological conditions was are necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to arranging for the Veteran to undergo VA examination, the RO should obtain any additional relevant VA records which may be available and provide her with another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the expanded claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the matters on appeal. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examinations for evaluation of his sinusitis, and bilateral hip disabilities, by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented medical history and assertions. Following a physical examination of the Veteran, and review of the claims file, the appropriate physician should provide an opinion as follows: (a) Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a sinusitis disability shown at any point since the Veteran filed her claim in October 2000 had its onset during service or is/was otherwise medically related to service. (b) Whether it is at least as likely as not that a bilateral hip disability shown at any point since the Veteran filed her claim in October 2000: (i) Had its onset during service, or is/was otherwise medically related to service; or, if not (ii) Was caused or is aggravated (worsened beyond natural progression) by the service-connected back and/or gynecological disorder(s). If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. (c) Whether is at least as likely as not that a disability cluster manifested by fibromyalgia with depression and rheumatoid arthritis shown at any point since the Veteran filed her claim in October 2000: (i) Had its onset during service, or is/was otherwise medically related to service; or, if not (ii) Was caused or is aggravated (worsened beyond natural progression) by the service connected back and/or gynecological disorder(s). If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. Each examiner should set forth the complete rationale for the conclusion(s) reached in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 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). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include any added to the record since the last adjudication of the claims) and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).