Citation Nr: 1328213 Decision Date: 09/04/13 Archive Date: 09/10/13 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 Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Williams, 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, which, in pertinent part, denied the Veteran's claim of entitlement to service connection for fibromyalgia. The Veteran submitted a Notice of Disagreement with this determination in November 2007, and timely perfected his appeal in March 2008. In June 2009, the Veteran testified before the undersigned Acting Veterans Law Judge at the RO in Muskogee, Oklahoma. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The claim of entitlement to service connection for fibromyalgia was denied by the Board in a September 2009 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2010 Order, the Court vacated the September 2009 Board decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand. The matter was returned to the Board in November 2010, May 2012, and February 2013, and was remanded on those occasions for additional development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Board is acutely aware that the Veteran's claim has been remanded on multiple occasions. Regrettably, yet another remand is necessary to ensure that he is afforded due process and that there is a complete record upon which to decide the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's claim was previously remanded by the Board in February 2013 so that an opinion regarding aggravation could be provided. Although the VA examiner proffered an opinion regarding aggravation, the VA examiner did not provide the additional opinion requested by the Board in February 2013. Specifically, the Board requested that the VA examiner offer an opinion as to whether the Veteran's fibromyalgia is aggravated by his service-connected anxiety neurosis with depressive features. The examiner offered an opinion regarding aggravation by service; however, no opinion was provided regarding aggravation by the service-connected disability. As such, additional 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 and addendum 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 and the February 2013 addendum, the examiner should prepare another 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) his service-connected anxiety neurosis with depressive features. The VA examiner must provide a complete rationale for all opinions offered. 2. The RO/AMC 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 RO/AMC should return the case to the examiner for completion of the inquiry. 3. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the RO/AMC should provide the Veteran with 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 Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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).