Citation Nr: 1330258 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-33 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from November 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In August 2013, the Veteran indicated that he was unable to attend a scheduled video conference hearing and that he did not wish to reschedule the hearing. In August 2013, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated in August 2013 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2013). 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 The Board has reviewed the medical and lay evidence of record and finds that additional development is required before deciding the claim on appeal. The Veteran contends that he has fibromyalgia due to "bodily trauma" during military service. In particular, he asserts that carrying 200 pounds on his back during service caused his claimed fibromyalgia and his service-connected disabilities of the cervical, thoracic, and lumbar spine. The claim for fibromyalgia was denied in an October 2011 rating decision because service treatment records were silent for complaints and/or treatment for fibromyalgia, and while a June 2011 post-service VA treatment record showed a probable diagnosis of fibromyalgia, VA treatment records dated in January and February 2011 documented no features of fibromyalgia found at that time. The RO determined that the diagnosis of probable fibromyalgia, which was made seven years after discharge from military service, was not shown to be linked to his military service. In a January 2004 airborne report of medical history, the Veteran denied currently or ever having swollen or painful joints, arthritis or rheumatism, or recurrent back pain or any back problem. On examination, clinical evaluation of the upper and lower extremities and spine was normal. A July 2004 chiropractic clinic note reflects the Veteran's complaints of neck pain, mid back pain, left rib pain, and low back pain. He denied any major trauma, but reported "rucking" with 200 pounds during training for Special Forces. The diagnosis was "739.1/2/4 segmental dysfunction cervical, thoracic, [sacroiliac]" and "729.1 myofascitis." During an August 2004 chiropractic visit, he reported mid back pain, neck pain, low back pain, and sharp pain in the right teres major. The assessment was "739.2/4/0" and "729.1." The Board notes that the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM) identifies 729.1 as "myalgia and myositis, unspecified." His DD214 lists the reason for separation as personality disorder. Post-service treatment records reflect that the Veteran's VA primary care physician recommended a rheumatology consultation in September 2010. The Veteran received contracted VA rheumatology evaluation twice in January 2011. On both visits, there were no clinical features of fibromyalgia. The VA primary care physician noted the rheumatologist's findings in subsequent progress notes. However, a May 2011 VA treatment record reflects that the Veteran's primary care physician assessed probable fibromyalgia and follow-up notes document treatment for fibromyalgia. VA treatment records also reflect the Veteran's reports that he feigned a personality disorder to a military psychiatrist for a separation from service. In his December 2012 substantive appeal, the Veteran stated that he had been suffering from fibromyalgia for many years and that "the same symptoms that [he] filed in [his] initial claim [for his back] (which was successful) are the same." An August 2013 letter addressed to the Veteran from his VA primary care physician responds to his "request for an opinion regarding the possible service connection of [his] chronic musculoskeletal condition as it relates to fibromyalgia." The physician stated that [a]lthough there was no specific related injury, repeated microtrauma to the tissues, secondary to the wear and tear of active service duty, carrying equipment, the heavy loads required as part of your daily activities, certainly could lead to chronic musculoskeletal problems. The fact that it involves multiple areas including your neck, upper and lower back, and lower extremities could also be consistent with this service connection. I believe it would be as likely as not that there is a service-related connection to this musculoskeletal condition. In summary, there is conflicting medical evidence as to whether the Veteran has fibromyalgia. The January 2011 rheumatologist concluded that there were no clinical features of fibromyalgia, but the Veteran's VA primary care physician later concluded that he had probable fibromyalgia. In addition, because the Veteran reports that his claimed fibromyalgia symptoms are the same as those he reported when claiming service connection for a spine disability, the Board finds that a VA examination and medical opinion is required to determine whether any such fibromyalgia is distinct from his service-connected degenerative disease of the lumbar spine with strain of the thoracic spine (rated as 20 percent disabling) and for muscle strain of the cervical spine (rated as 10 percent disabling), and whether any current fibromyalgia disability was incurred in or is medically related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). Therefore, the AMC/RO should arrange for a VA examination and medical opinion. Prior to arranging for a VA examination, the AMC/RO should request and associate with the claims file ongoing treatment records from the Fort Harrison VA Medical Center (VAMC) and Missoula VA Community Based Outpatient Clinic (CBOC) pertinent to the claim for fibromyalgia dated from May 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should attempt to obtain and associate with the claims file treatment records pertinent to the claim for fibromyalgia from the Fort Harrison VAMC and Missoula VA CBOC dated from May 2012 to the present. 2. Thereafter, the RO should schedule the Veteran for a VA examination to determine whether the Veteran has a current fibromyalgia disability. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests should be accomplished and the reports associated with the examination report. The examiner should consider the Veteran's contentions that he has fibromyalgia from carrying heavy weight on his back during military service. If fibromyalgia is diagnosed, the examiner should indicate whether it as likely as not (50 percent probability or greater) had its clinical onset in service or is otherwise related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should also discuss whether any signs and symptoms of fibromyalgia and any diagnosed fibromyalgia are distinct from the Veteran's service-connected degenerative disease of the lumbar spine with strain of the thoracic spine and muscle strain of the cervical spine. 3. After undertaking any other development deemed appropriate and ensuring that the requested actions are completed, the RO or AMC should readjudicate the claim of service connection for fibromyalgia. If the benefit sought is not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).