Citation Nr: 1332612 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-22 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for vertigo. 2. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 1993 to November 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2008, a statement of the case was issued in April 2010, and a substantive appeal was received in May 2010. The Veteran presented testimony at a Board hearing in October 2012, and a transcript of the hearing is associated with his claims folder. At the hearing, the record was held open for an additional 60 days to permit the Veteran an opportunity to obtain and submit additional evidence. However, this period has expired without additional evidence being submitted to the record. 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 Vertigo Regarding the claim for service connection for vertigo, service treatment records show treatment for dizziness on 2 consecutive days in service in December 1997. The assessment was probable acute vestibular problem which was felt to be probably viral in nature. In April 1998, the Veteran noted intermittent vertigo. She was examined, but it was unclear what the etiology of her vertigo was. On VA evaluation in November 2007, the Veteran reported that she had problems with severe motion sickness. Vertigo seemed to be progressing, she felt, and one amusement park ride would cause dizziness to last a whole day. On VA audiology referral for a vestibular evaluation in January 2008, it was noted that the Veteran had reported episodes of dizziness and vertigo since 1997, with the dizziness sometimes being triggered by movements. The audiologist conducted electronystagmography (ENG) and a vestibular evoked myogenic potential (VEMP) test, which were normal and inconsistent with peripheral or central vestibular involvement. The Veteran claimed service connection for vertigo in February 2008. On VA examination in May 2008, the Veteran's medical history was reviewed and thereafter, the examiner indicated that he could not resolve the issue of whether the Veteran's current vertigo was related to service without resort to mere speculation. He stated that he was unable to make a direct connection and that the vertigo in service occurred initially while the Veteran was sitting at a desk. More recently, the Veteran had reported motion sickness symptoms. It is unclear, based on this report, why the examiner could not render the medical opinion without resorting to mere speculation. Accordingly, that examination report is inadequate to adjudicate the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, since that time, a VA physician indicated in October 2012 that an April 2011 ENG (which is not of record and should be obtained) had been consistent with a right compensated vestibulopathy. Furthermore, a VA vestibular evaluation in November 2012 revealed a 68 percent right caloric weakness consistent with a right vestibulopathy. This information might enable a VA examiner to render a more definitive nexus opinion than was rendered in May 2008. During the Veteran's hearing before the undersigned in October 2012, the representative argued that the Veteran's dizziness is an ongoing disorder caused by chronic sinusitis, and the Veteran mentioned that she has sinuses which clog up. The Veteran had complained of mild nasal congestion on service evaluation on December 4, 1997. Given the October 2012 hearing testimony, the Board finds that the matter of service connection for chronic sinusitis has been raised and should be developed, as the claim for service connection for vertigo secondary to it is inextricably intertwined with it at this point. The Board further notes that a VA ear, nose, and throat physician was consulted for hearing loss and vertigo in November 2012, and indicated that the Veteran's dizziness was of central origin and likely secondary to migraines. The ear, nose, and throat physician indicated that the Veteran did not likely have Meniere's, as she had symptoms since 1997 and her hearing remains within normal limits. The VA ear, nose, and throat physician gave the Veteran the name of a private neurologist to see. Those records should be obtained to assist the Veteran with her claim pursuant to 38 C.F.R. § 3.159. Since the VA ear, nose, and throat physician indicated that the Veteran's dizziness is likely secondary to migraines, the Board finds that the matter of service connection for migraines has been raised, and that the claim for service connection for vertigo as secondary to it is inextricably intertwined with it at this point. Accordingly, the migraines claim should be developed and adjudicated, and the matter of whether the Veteran's current vertigo is secondary to it should also be developed. Fibromyalgia Regarding the claim for service connection for fibromyalgia, the Veteran was treated for a number of symptoms in service, without fibromyalgia being diagnosed. These included symptoms treated in November 1994 (skin), March 1996 (shoulder), April 1998 (ear), July 1998 (wrist/hand), August 1998 (possible radicular pain or other problem), September 1998 (possible "carpalitis"), and October 1998 (ear). On VA evaluation in April 2001, a history of pain and numbness in the hands and extensor arms for 3-4 years was reported. Nerve conduction studies for the ulnar and median nerves were normal. The Veteran was found to have multiple tender points in her upper back, and trigger points in her lateral epicondyle bilaterally. Several days later, tennis elbow was assessed. The tender and trigger points found in April 2001 were found again in June 2001. On April 2007 VA evaluation, the Veteran complained of increasing neck and shoulder pain, and of 2nd finger sharp pain when typing. She had mild thickening of the 2nd metacarpophalangeal joints bilaterally. Myofascial pain syndrome and tendinitis of the hands and fingers were assessed. In February 2008, the Veteran was seen for upper extremity and back pain. She described pain in her upper arms radiating to the elbow, and reported that her hand often becomes numb, related to the position of her desk, computer set-up, and chair. She stated that the symptoms would start within 1 hour of working at her desk, where she did a lot of typing and computer work. On examination, there were significant trigger points in the levator scapula and trapezius region, and the biceps insertions were tender. Tinel's was negative. The impression was myofascial pain; tendinitis; and cervical and shoulder strain. In April 2008, a private physician noted that the Veteran had a longstanding history of arthralgias and myalgias, as well as back pain at times, and numbness and tingling of both arms. The Veteran described fatigue. Physical examination was unremarkable except for multiple fibrositic tender points. The impression was symptoms suggestive of fibromyalgia, and paresthesias probably related to fibromyalgia. In March 2009, she again had trigger points, and the assessment was fibromyalgia. In June 2010, VA physician F. indicated that since the Veteran was first seen in 2006, she continued to complain of chronic pain in her neck, shoulder, and upper extremities. She also complained of chronic headaches. She had had extensive neurologic, rheumatologic, and orthopedic evaluations, and had undergone extensive physical therapy, numerous medications, massage therapy, and yoga, in an effort to relieve some of her symptoms. She was diagnosed with fibromyalgia by several clinicians. VA Physician F. noted that the Veteran had several medical visits in service in 1994 through 1996 for similar symptoms including left arm pain, shoulder pain, and headaches. Symptoms at that time were consistent with her current symptomatology. Hence, VA physician F. felt that it was as likely as not that the Veteran had signs and symptoms consistent with fibromyalgia dating back to service and that the condition went undiagnosed while she was in service. On VA examination in March 2012, the Veteran was found to have widespread musculoskeletal pain. The impression was arthralgias/myalgia consistent with fibromyalgia; and headaches combination of migraine and muscle tension. A negative medical nexus opinion was provided, with consideration of Dr. F.'s June 2010 letter. VA physician F. indicated in October 2012 that the Veteran had had several visits in service for pain in the upper extremity involving the shoulders, wrists, and hands. She also had some visits for headaches, chest pain, and gastrointestinal complaints, without definitive diagnostic findings. She stated that all of these findings may have been related to fibromyalgia. She questioned the accuracy of the diagnosis of carpal tunnel syndrome in service. Electromyogram and nerve conduction studies had been negative at the time. Subsequent studies failed to show any evidence of carpal tunnel syndrome or cervical radiculopathy. Dr. F. strongly suspected that the Veteran's symptoms of upper extremity pain in service were more likely due to fibromyalgia or some other myofascial pain syndrome than to carpal tunnel syndrome diagnosed in service. It was Dr. F.'s opinion that more likely than not, the Veteran's current fibromyalgia is a progression of the medical conditions she was treated for in service and that she likely was having symptoms of fibromyalgia in service. No VA examination has considered this report, and one should, as a VA examination is to be a fully informed one and should take into consideration countervailing opinions. During the Veteran's October 2012 hearing, many in-service symptoms were mentioned, with the Veteran indicating that she believed her fibromyalgia started in about 1994, and apparently felt that in-service symptoms were representative of it. The RO has not considered the matter of secondary service connection for fibromyalgia. However, this matter appears to have been raised. In May 2010, the Veteran indicated that her fibromyalgia is a direct result of the medical issue that is service-connected. By this, she appears to mean that it was caused by her service-connected right and left tennis elbow with carpal tunnel syndrome, and her left shoulder impingement. Accordingly, the case is REMANDED for the following action: 1. Develop the claims for service connection for migraines and chronic sinusitis, including by giving the Veteran VCAA notice concerning them. Also, provide the Veteran with secondary service connection VCAA notice concerning her claims for service connection for vertigo and fibromyalgia. 2. Make arrangements to obtain all additional relevant medical records of treatment the Veteran has received, including the April 2011 ENG test report, any additional VA medical records, and all private medical records of treatment the Veteran has received, including for headaches and/or dizziness by a private neurologist in or after November 2012. 3. After the above development has been completed, schedule the Veteran for an appropriate VA examination(s) to address the nature and etiology of the current vertigo and fibromyalgia disabilities. It is imperative that the claims file, all medical records on Virtual VA, and a copy of this remand be made available to the examiner for review in connection with the examination. Any medically indicated tests should be performed. Based upon the examination results and a review of the claims folder and any relevant records in Virtual VA, the examiner respond to the following: a) Is it at least as likely as not (a 50 percent or more probability) that any current vertigo or fibromyalgia disability had its onset during active service? b) Is it at least as likely as not (a 50 percent or more probability) that any current vertigo disability is proximately due to or caused by a chronic sinus disorder, and if so, did such chronic sinus disorder at least as likely as not have its onset in service? c) Is it at least as likely as not (a 50 percent or more probability) that any current vertigo disorder has been aggravated by a chronic sinus disorder, and if so, did such chronic sinus disorder have its onset in service? d) Is it at least as likely as not (a 50 percent or more probability) that any current vertigo disability is proximately due to or caused by a migraine disorder, and if so, did such migraine disorder at least as likely as not have its onset in service? e) Is it at least as likely as not (a 50 percent or more probability) that any current vertigo disorder has been aggravated by a migraine disorder, and if so, did such migraine disorder have its onset in service? f) Is it at least as likely as not (a 50 percent or more probability) that any current fibromyalgia disability is proximately due to or caused by the service-connected tennis elbow, carpal tunnel syndrome, or left shoulder impingement? g) Is it at least as likely as not (a 50 percent or more probability) that any current fibromyalgia disorder has been aggravated by the service-connected tennis elbow, carpal tunnel syndrome, or left shoulder impingement? The examiner should provide rationales for all opinions, with discussion, as appropriate, of the significance of the medical findings. Reasons, citing facts where appropriate, for any disagreement with any of Dr. F.'s June 2010 or October 2012 opinions should be discussed in detail. If the examiner is unable to render any of the medical opinions requested without resorting to mere speculation, a detailed explanation for the reasons for this must be provided. 4. In the interest of avoiding further remand, the RO should review the examination report(s) to ensure that it is responsive to all of the questions posed above. 5. The RO should then adjudicate the claims for service connection for sinusitis and migraines and notify the Veteran of its decisions and of her right to appeal them. If she perfects appeals of them, those issues should be brought to the Board for appellate review, along with the other issues on appeal, if they have not been granted to her satisfaction. 6. The RO should also readjudicate the Veteran's currently pending claims for service connection for vertigo and fibromyalgia in light of the expanded the record. The Veteran and her representative should be furnished a supplemental statement of the case on those issues and given the opportunity to respond thereto. The case should then be returned to the Board for appellate 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). _________________________________________________ ALAN S. PEEVY 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).