Citation Nr: 1326408 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-20 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from May 1985 to May 1989 and from May 1998 to April 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled for a January 2012 Board hearing, but did not appear or indicate any desire to reschedule. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 A remand is required in this case to ensure that there is a complete record upon which to decide the issues of service connection for fibromyalgia so that the Veteran is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In this case, the claims file does not include a medical opinion addressing whether the Veteran's currently diagnosed fibromyalgia is related to service. In service connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to a current disability, the evidence shows that a VA doctor first diagnosed the Veteran with fibromyalgia in 2007, less than two years after her discharge from service. She was afforded a VA examination in March 2008, and the VA examiner also diagnosed fibromyalgia. The examiner noted that the Veteran has following symptoms of fibromyalgia: unexplained fatigue, sleep disturbance, constipation, abdominal bloating, depression, anxiety, difficulty concentrating, and musculoskeletal symptoms. The examiner noted the Veteran has tender points on her back, dorsal wrists, and medial ankles. Concerning the question of in-service disease or injury for fibromyalgia, service treatment records reflect the Veteran was in a car accident in May 2000. Several days after the accident she reported neck, back, and knee pain as well as headaches and difficulty sleeping. At a follow up appointment in June she reported continued low back and neck pain. The examiner noted back spasms with trigger points. The Veteran again sought treatment in September complaining of persistent neck pain and the examiner noted spasms and trigger points. She continued reporting neck pain, back pain, and headaches in October. In April 2001 the Veteran reported neck and shoulder pain, radicular symptoms, weakness, paresthesias, and depression, all since the car accident. Her complaints of back pain continued in 2002. In March 2004 she noted muscle aches. In April 2004 on her medical board examination, the Veteran reported she had a history of painful shoulder, elbow, or wrist; recurrent back pain; numbness or tingling; impaired use of arms, legs, hands, or feet; and knee trouble. She attributed her left shoulder pain and low back pain specifically to her car accident. The Veteran continued to report neck and back pain due to the 2000 car accident after service as well. With respect to the relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The Veteran stated in June 2008 that she felt fine before her 2000 car accident but since that time has had problems, including stiffness, pain, muscle fatigue, and fibromyalgia fog that have waxed and waned but never gone away. She argued that although her fibromyalgia began in service, she was simply not properly diagnosed until after service. The Veteran submitted two copies of patient reference materials on fibromyalgia she identified as coming from Medline Plus. The materials relate that symptoms of fibromyalgia include fatigue, sleep disturbances, headaches, and tender points, and that the condition may be caused by injury or physical trauma. Given the Veteran's contention that she has experienced fibromyalgia symptoms since her 2000 car accident in service and her medical records showing regular complaints of those symptoms since that time, the Board finds the evidence is sufficient to indicate there may be an association between her service and her fibromyalgia. However, no VA or private medical report is of record with an etiology opinion as to the Veteran's fibromyalgia and any relationship to service. Therefore, the Board finds this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Specifically, the question of the relationship, if any, between the Veteran's currently diagnosed fibromyalgia and her service, including the May 2000 car accident, must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA compensation examination to obtain an opinion as to the nature and etiology of fibromyalgia. The claims folder must be made available to the VA examiner for review. Based upon a review of all the record, including service treatment records, history of the Veteran, and clinical findings, the VA examiner is requested to offer the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that any current fibromyalgia began during service or is otherwise linked to some incident of active duty, to include the Veteran's May 2000 car accident? 2. When the development requested has been completed, and the RO/AMC has ensured compliance with the requested action, this case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ M. TENNER 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).