Citation Nr: 1752511 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-20 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for fibromyalgia, claimed as painful and swelling joints. 2. Entitlement to service connection for an acquired psychiatric disability, claimed as depression, anger problems, memory loss, and posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a sleep disorder. 4. Entitlement to service connection for disability manifested by discomfort during cold weather. 5. Entitlement to service connection for a skin disability, claimed as blisters on the ear lobes. (The issues of entitlement to a temporary total evaluation for hospitalization over 21 days; and, service connection for cystitis, hydronephrosis, gingivitis, erectile dysfunction, hypertension, dyslipidemia, and actinic keratosis of the face will be the subject of a later decision, if in order.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1983 to July 1985 and from September 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision. The Veteran appeared at a September 2016 hearing before the undersigned Veterans Law Judge at the regional office (RO). A transcript is in the record. The issues of entitlement to a temporary total evaluation for hospitalization over 21 days; and service connection for cystitis, hydronephrosis, gingivitis, erectile dysfunction, hypertension, dyslipidemia, and actinic keratosis of the face were perfected when the Veteran submitted a timely VA Form 9, Appeal to Board of Veterans' Appeals (Board) in January 2017, and the issues were certified to the Board in August 2017. However, the Veteran also requested a hearing for these issues, which has not yet been conducted. They will therefore be the subject of a separate decision once the hearing has been concluded. In August 2017, the Veteran was also issued separate Statements of the Case for the issues of entitlement to service connection for arthritis of the knees and service connection for PTSD. The Veteran has not submitted a substantive appeal for either issue. However, the issues of entitlement to service connection for depression and service connection for a disability manifested by anger problems were considered, denied, and appealed to the Board as two separate issues. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board will assume jurisdiction of the claim of service connection for PTSD, and will characterize the Veteran's claims of service connection for various psychiatric symptoms into a single issue in order to comply with the Court's holding. The issues of an entitlement to service connection for an acquired psychiatric disability claimed as depression, anger problems, and PTSD; service connection for a sleep disorder; service connection for disability manifested by discomfort during cold weather; and service connection for a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a current diagnosis of fibromyalgia, which has been related to active service by uncontroverted VA medical opinion, and is presumed to be the result of service in the Persian Gulf region. CONCLUSION OF LAW The criteria for service connection for fibromyalgia, claimed as painful and swelling joints, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303(a), 3.317(a)(2)(i)(B) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board finds that the duty to notify and duty to assist have been met for the issue of service connection for fibromyalgia, claimed as painful and swelling joints. Furthermore, given the favorable outcome of this claim, any failure in the duty to notify or assist was harmless error. Service Connection The Veteran contends that he developed a disability manifested by painful joints soon after he returned from service in the Persian Gulf region. He has continued to experience pain ever since that time, and receives ongoing treatment from VA for his pain. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. For a Persian Gulf Veteran, service connection may also be given for medically unexplained chronic multisymptom illness, including chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, provided the illness became manifest during active service or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(2)(i)(B). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran's service treatment records are negative for treatment or complaints pertaining to systematic joint pain or other pain in his limbs. However, VA treatment records show treatment for various joint complaints dating from 2010, with frequent diagnoses of polyarthralgia. VA records dated prior to 2010 are not currently in the claims file. A June 2012 VA rheumatology note shows that the Veteran was consulted for polyarthralgias. His pain was chronic and not thought due to joints when previously assessed. The Veteran reported joint pain in the knees, ankles, and hands that had begun in 1991. The pain was initially present only during winters but was now constant. The Veteran had also experienced sleep problems and depression since returning from the Gulf War. At the conclusion of the examination, the assessment was chronic pain in multiple body sites, not all related to joints. There was a component of fibromyalgia, depression and poor sleep. 7/11/2012 Legacy Content Manager Documents (LCMD), Capri, p. 1. The Veteran was afforded a VA fibromyalgia examination in June 2016. The claims file was reviewed by the examiner. The Veteran was found to have a current diagnosis of fibromyalgia, and the examiner stated that he had been given this diagnosis by rheumatology in 2012. He continued to have symptoms attributable to fibromyalgia, including widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, and depression. The pain was constant or near constant, and trigger points were found at several locations. Significant diagnostic testing such as elevated ESR and C Reactive Protein were said to have been shown on previous examinations. The examiner concluded that the Veteran has a diagnosis of fibromyalgia, and that because fibromyalgia is medically related to Gulf War exposure it was as likely as not related to such service. 6/9/2016 VBMS, C&P Exam, p. 3. The evidence shows that the Veteran had service in the Persian Gulf from 1990 to 1991. It also clearly shows that he has a current diagnosis of fibromyalgia. By regulation, fibromyalgia is deemed to be the result of Persian Gulf service; furthermore, it has been related to his Gulf service by competent VA medical opinion. There is no opinion to the contrary in the record. For these reasons, the Board concludes that entitlement to service connection for fibromyalgia is established. ORDER Entitlement to service connection for fibromyalgia, claimed as painful and swelling joints, is granted. REMAND The record includes a private physical examination and a private mental health evaluation dated September 2014 that were obtained in conjunction with the Veteran's claim for disability benefits from the Social Security Administration (SSA). 10/15/2014 VBMS, Medical Treatment Records - Furnished by SSA, p. 1; 10/9/2014 VBMS, Medical Treatment Records - Furnished by SSA, p. 1. The Board notes that over three years have passed since this indication that the Veteran was applying for SSA disability benefits. There has been no attempt to obtain a copy of the SSA decision regarding the Veteran's disability benefits, or to determine whether or not additional medical records were relied upon by this decision. The Courts have imposed a virtually absolute duty to obtain SSA decisions and underlying medical records. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Voerth v. West, 13 Vet. App. 117, 121 (1999); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Therefore, VA must attempt to obtain a copy of any SSA decision as well as a copy of the complete set of medical records relied on to reach that decision and associate them with the claims file. The September 2014 private mental evaluation includes a statement from the Veteran that he was seeing a psychiatrist named Jennifer Middleton. He added that he was being treated for PTSD. A review of the record fails to show any private or VA medical records from a provider named Jennifer Middleton. An attempt to obtain these records for the claims file must be made. The Veteran was afforded VA psychiatric examinations in July 2012, April 2013, and July 2015. On each occasion, the examiner determined that the Veteran failed to meet the criteria for a diagnosis of PTSD and/or any other psychiatric disability. In contrast, the September 2014 private examination includes a diagnosis of PTSD, and VA treatment records dating from at least 2015 include diagnoses of PTSD and major depressive disorder. He was hospitalized in a VA facility for treatment of PTSD in 2016. These constitute current diagnoses of those disabilities. McClain v. Nicholson, 21 Vet. App. 319 (2007). The records do not include an opinion relating any of the Veteran's diagnoses to active service, are contradictory as to whether or not the Veteran experienced a traumatic event during service, and discuss possible traumas unrelated to active service. Therefore, the Board finds that the Veteran should be scheduled for another VA psychiatric examination in order to determine whether or not he currently has a valid diagnosis of PTSD or any other psychiatric disability, whether or not any current disability was incurred due to service, and whether or not any of the diagnoses of PTSD and/or major depression found in the VA treatment records were due to service or service connected disabilities, even if these diagnoses are not verified on the current examination. Finally, it does not appear that the Veteran has been afforded a VA examination of his claimed sleep disability. The Board observes that sleep disturbance can be a symptom of fibromyalgia. 38 C.F.R. § 4.71a, Code 5025 (2017). The Veteran should be scheduled for an examination in order to determine whether or not his sleep problems are the result of fibromyalgia, or if they constitute a separate disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dating from discharge to 2010 and from February 2017 to the present and associate them with the claims folder. 2. Contact the Veteran and request that he indicate whether the psychiatrist Julie Middleton is a VA doctor or a private doctor. He should provide the approximate dates of his treatment with her. If Julie Middleton is a private doctor, the Veteran should be notified that VA will assist him in obtaining the records with his permission, but that it is ultimately his responsibility to see that they are received by VA. Then, after receiving any necessary permission from the Veteran, obtain these records and associate them with the claims file. 3. Contact the Social Security Administration and request a copy of the decision regarding the Veteran's claim for disability benefits. All medical records used to reach this decision must also be provided. Efforts to obtain these records should continue until it is certain that they either do not exist or that further efforts would be futile, in which case a memorandum to that effect should be placed in the claims file. 4. Schedule the Veteran for a VA psychiatric examination for his claimed PTSD, depression, anger problems and memory loss. All indicated tests and studies should be conducted. The claims file must be reviewed, and the examination report must state that it has been reviewed. At the conclusion of the examination and record review, the examiner should provide the following opinions: a) Does the Veteran have a current diagnosis of one or more acquired psychiatric disabilities? If yes, please list these disabilities. b) For every current psychiatric disability listed in (a), is it at least as likely as not that it was incurred in or due to active service? c) If the Veteran is determined not to have a current diagnosis of one or more psychiatric disabilities, is it as likely as not that the PTSD and/or major depressive disorder that is diagnosed in VA treatment records dating from 2014 to the present was incurred in or due to active service? If those earlier diagnoses are deemed not to be valid, the examiner must fully explain why this is so. d) If the Veteran's current symptoms include depression and/or sleep disturbances, please state whether or not these symptoms are the result of a psychiatric disability or are instead associated with fibromyalgia. The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 5. Schedule the Veteran for a VA examination of his claimed sleep disability. All indicated tests and studies should be conducted. The claims file must be reviewed, and the examination report must state that it has been reviewed. At the conclusion of the examination and record review, the examiner should provide the following opinions: a) Does the Veteran have a disability manifested by a sleep disorder? b) If the answer to (a) is yes, is this a symptom of the Veteran's service connected fibromyalgia or does it represent a separate and distinct disability? c) If the Veteran is found to have a sleep disability that is unrelated to his fibromyalgia and/or psychiatric disabilities, is it as likely as not that this disability was incurred in or due to active service? The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 6. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran 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 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs