Citation Nr: 1327253 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-31-593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities. 3. Entitlement to service connection for bilateral and central polyradiculopathy L4-L5-S1 of the lower extremities, claimed as right and left lower extremity radiculopathy and also claimed as sural nerve prolongation bilateral (peroneal neuropathy). 4. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, also claimed as psychological effects, mental condition, as secondary to service-connected disabilities. 5. Entitlement to an increased disability evaluation for cervical myositis, currently rated as 20 percent disabling. 6. Entitlement to an increased disability evaluation for lumbar paravertebral myositis, currently rated as 20 percent disabling. 7. Entitlement to an increased disability evaluation for abductors left hip myositis, currently rated as 10 percent disabling. 8. Entitlement to an increased disability evaluation for laceration of the left forearm, currently rated as 10 percent disabling. 9. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from October 1979 to June 1984. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, Puerto Rico. In December 2006, the Board denied service connection for fibromyalgia, and the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In a June 2010 Joint Motion for Partial Remand, the parties requested that the Court issue an order vacating and remanding the portion of the December 2006 Board decision that denied the claims of entitlement to service connection. In a June 2010 order, the Court ordered that the motion for remand be granted and that part of the decision that denied entitlement to service connection for fibromyalgia be remanded pursuant to 38 U.S.C. § 7252(a) for compliance with the instructions in the joint remand that were incorporated therein by reference. In decisions issued in December 2011, the Board again denied service connection for fibromyalgia, denied service connection for bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities, and remanded the remaining issues listed above. The Veteran appealed the determinations denying service connection to the Court. In an August 2012 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court issue an order vacating and remanding the portions of the December 2011 Board decisions that denied the claims of entitlement to service connection for fibromyalgia and bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities. In an August 2012 order, the Court ordered that the motion for remand be granted and that the part of the December 2011 Board decisions that denied entitlement to service connection for fibromyalgia be remanded for actions consistent with the terms of the Joint Motion. An oversight was noted by the Board in the above action and the case was returned to the Court for rectification. In an August 2013 order, the Court granted the Secretary of VA's motion to withdraw judgment and recall the August 2012 order, and revoked that order. In its stead, the Court ordered that the August 2012 Joint Motion for remand be granted, and that those parts of the December 2011 Board decisions that denied entitlement to service connection for both fibromyalgia and bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities be remanded for actions consistent with the terms of the Joint Motion. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Regarding the Veteran's claim for fibromyalgia, in the August 2012 Joint Motion, the Parties observed that, in denying the Veteran's claim, the Board found that the most probative medical evidence supported the finding that he did not have fibromyalgia, pointing to July 2001 and May 2002 VA examinations during which each respective examiner concluded that the Veteran did not fulfill the criteria for a diagnosis of fibromyalgia. The Parties further observed that, on review, it appeared that neither of these examiners provided an adequate rationale for the examiner's opinion, and in particular, neither examiner explained the criteria for a diagnosis of fibromyalgia or why the Veteran did not meet such criteria. The Parties concluded that, because the opinions on which the Board relied were inadequate, the Board's reason and bases for denying the Veteran's claim were inadequate. Under these circumstances, the Veteran should be provided an examination and opinion addressing whether he has fibromyalgia, and, if so, whether such disability is related to his period of service or any service-connected disability or disabilities. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, in the August 2012 Joint Motion, the Parties noted that the Veteran's attorney indicated in an April 2011 letter that additional VA treatment records were available that demonstrated treatment for fibromyalgia, and that, on remand, the Board should obtain any current VA medical records relevant to the Veteran's treatment for fibromyalgia. The most recent VA treatment records associated with the claims file are dated in August 2008. Thus, on remand, any such subsequent VA treatment records should be obtained. In this regard, it would be of great assistance to the Board if the Veteran and/or his attorney themselves obtain these records and submit them to expedite this case. If they assist they should clearly indicate that all penitent medical records have been obtained (in writing) to avoid further delay in this case. Regarding the Veteran's claim for bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities, in the August 2012 Joint Motion, the Parties observed that, in denying the Veteran's claim, the Board relied on a November 2008 VA examiner's opinion that the Veteran's bilateral upper extremity radiculopathy was less likely than not secondary to his service-connected cervical myositis and more likely related to cervical discogenic disease with degenerate joint disease (DJD). The Parties concluded, however, that the Board did not make a determination as to whether the Veteran was entitled to service connection for the underlying cervical discogenic disease with DJD, and "[b]ecause evidence revealed that his radiculopathy is due to cervical discogenic disease and DJD because the cervical nerve is compressed by those two pathological conditions," remand was necessary for the Board to determine whether Veteran's cervical discogenic disease and DJD are related to service. The Parties further noted that that on September 2010 VA examination, the examiner diagnosed cervical degenerative disc disease (DDD) with DJD and cervical neuropathy by history, and opined that the Veteran's currently diagnosed cervical conditions were not at least as likely as not related to either in-service injury or his service-connected cervical myositis, with the rationale that cervical DDD and DJD started between 2007 and 2008. The Parties stated that lacking from both the November 2008 and August 2010 VA examiners' opinions was any explanation as to why the dates the Veteran's DDD and DJD were initially diagnosed were relevant to whether the disabilities were related to his in-service back injury, and that the examiners should have explained why the nature of the Veteran's in-service back injury rendered it unlikely to have led to long-term degenerative conditions, specifically cervical DDD and DJD. Service treatment records reflect that the Veteran was treated in service in October 1981 after a motor vehicle accident for complaints including neck tenderness, and between May 1983 and May 1984, following a May 1983 motor vehicle accident, for complaints including neck and back pain. Under these circumstances, the RO should obtain an opinion addressing whether bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities is related to either service or the Veteran's service-connected cervical myositis. The report of such examination should address whether DDD or DJD is related either to service, to include the Veteran's in-service motor vehicle accidents and resulting treatment for neck and back pain, or to the Veteran's service-connected cervical myositis. Id. Finally, as noted in the introduction above, the remaining issues on appeal were remanded by the Board in December 2011. It is unclear from the record whether such remanded claims are being developed by the RO, or if appellate adjudication has prevented such remanded issues from further development (the claims file may have been with the Court). Therefore, if the Board's December 2011 remand instructions have not already been implemented, the RO should implement such instructions on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records related to the Veteran's fibromyalgia, dated from August 2008 to the present, to specifically include records from the San Juan VA Medical Center. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the existence and etiology of any fibromyalgia. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine: (a) Whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran has now, or has had at any time from the February 14, 2000, date of his service connection claim to the present, fibromyalgia. In doing so, the examiner should discuss the criteria for a diagnosis of fibromyalgia, and how the Veteran has or has not met such criteria. A review of the August 2012 Joint Motion for Partial Remand may assist the examiner in understanding the Court's concerns regarding the prior medical opinions. (b) If, and only if, such fibromyalgia is diagnosed, whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability is either related to service or has been caused or aggravated (permanently worsened) by any service-connected disability or disabilities. In making these determinations, the examiner should specifically consider: the April 1999 private treatment note indicating an assessment of signs and symptoms suggestive of fibromyalgia; the February 2001 private treatment note indicating a diagnosis of fibromyalgia and suggesting that such fibromyalgia had existed since a 1984 motor vehicle accident; and the July 2001 and May 2002 VA examination reports indicating that the Veteran did not meet the criteria for a diagnosis of fibromyalgia. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine: (a) Whether any bilateral cervical radiculopathy at C5-C6-C8 levels of the upper extremities is at least as likely as not (i.e. a 50 percent probability or more) related to service or has been caused or aggravated (permanently worsened) by the Veteran's service-connected cervical myositis. (b) Whether any cervical DJD or DDD is at least as likely as not (i.e. a 50 percent probability or more) related to service, to specifically include the Veteran's October 1981 and May 1983 motor vehicle accidents, for which he was subsequently treated for complaints of neck and back pain, or has been caused or aggravated (permanently worsened) by the Veteran's service-connected cervical myositis. If the dates that the Veteran's cervical DDD and DJD were initially diagnosed are relevant to the examiner's determination, the examiner should explain why in detail. The examiner should also specifically consider the November 2008 and September 2010 VA examination reports and opinions therein. A complete rationale for all opinions must be provided. 4. If not already performed: If available, return the claims file to the examiner who performed the May 2007 VA psychiatric examination. Following a review of the claims folder, the examiner should render an opinion as to whether it was at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder, if found, is related to the Veteran's period of active service. If not, is it at least as likely as not that the Veteran's service-connected disorders caused or aggravated (permanently worsened) any current acquired psychiatric disorder? The examiner should provide rationales for these opinions. If the examiner is not available, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any current psychiatric disorder, with the examiner, following a review of the claims folder, rendering the above requested opinion with rationale to support the opinions. 5. If not already performed: If available, return the claims folder to the examiner who performed the November 2008 VA spine examination. Following a review of the claims folder, the examiner must render an opinion as to whether it was at least as likely as not (50 percent probability or greater) that any bilateral and central polyradiculopathy L4-L5-S1 is related to the Veteran's period of active service. If not, is it at least as likely as not that the Veteran's service-connected disorders caused or aggravated (permanently worsened) any current bilateral and central polyradiculopathy L4-L5-S1? If the examiner cannot render such opinion without resort to speculation he should provide detailed rationale for such a conclusion. The examiner should provide rationales for all opinions. If the examiner is not available, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any bilateral and central polyradiculopathy L4-L5-S1, with the examiner, following a review of the claims folder, rendering the above requested opinion with rationale to support the opinions. 6. Review the claims file. If any development is incomplete, take corrective action before readjudication. 38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268 (1998). 7. The Board understands that this is a complex case. The RO should undergo a detailed review of the record to insure all of the concerns of the Veterans Court have been met. 8. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. 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). _________________________________________________ JOHN J. CROWLEY 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).