Citation Nr: 1801078 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-28 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for fibromyalgia/bone pain of body. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thyroid condition. 4. Entitlement to service connection for a thyroid condition, to include hypothyroidism. 5. Entitlement to a rating in excess of 10 percent for a back disability. 6. Entitlement to a rating in excess of 10 percent for a neck disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from August 1982 to October 1994, including verified service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The newly reopened issue of entitlement to service connection for a thyroid condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At an October 2016 Board hearing, the Veteran indicated that it was her intent to withdraw the appeal for entitlement to a rating in excess of 10 percent for a back disability. 2. At an October 2016 Board hearing, the Veteran indicated that it was her intent to withdraw the appeal for entitlement to a rating in excess of 10 percent for a neck disability. 3. In a final decision issued in April 1997, the RO denied the Veteran's claim of entitlement to service connection for a thyroid condition. She did not appeal the decision and it is final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim, and it is reopened. 4. The Veteran's complaints of bilateral shoulder pain have not been associated with any underlying diagnosis and are not otherwise accompanied by objective indications of a qualifying chronic disability. 5. The Veteran has qualifying service in Southwest Asia and her diagnosed fibromyalgia has manifested to a degree of 10 percent or more since her separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an increased rating for a back disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the claim of entitlement to an increased rating for a neck disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a thyroid condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 4. A bilateral shoulder disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 5. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Increased Rating Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, at the October 2016 videoconference hearing, the Veteran, indicated her intent to withdraw her appeal with regard to the issues of entitlement to increased ratings for back and neck disabilities, prior to promulgation of an appellate decision. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and her representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). The Board's own review does not reveal any prejudicial defects in VA's efforts to notify and assist in this appeal. New and Material Evidence The Veteran's claim to service connect a thyroid condition was previously denied. She did not appeal the decisions and they became final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claims, to include testimony and updated private treatment records. Therefore, the claim is reopened. Service Connection for Fibromyalgia 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 service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. Such disability or illness must become manifest either during active service or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317 (a)(1)(i). In this case, the Veteran DD-214 reflects that she had service in Southwest Asia as she is in receipt of the Southwest Asia Service Medal. As such, the Board finds that the Veteran has qualifying service in Southwest Asia for the purposes of the presumption in favor of Persian Gulf War veterans. A May 2010 VA wrist examination report indicates that the Veteran has a current diagnosis of fibromyalgia. Although the examination pertained to the Veteran's wrist, the examiner noted that the Veteran had fibromyalgia manifested by multiple areas of pain. Further, a January 2008 private treatment record notes the Veteran's fibromyalgia diagnosis. Based on this evidence, the Board finds that the Veteran has a current diagnosis of fibromyalgia and that the disability has manifested to a sufficient degree following the Veteran's separation from service. In this regard, the May 2010 VA examination noted that the Veteran was prescribed Lyrica for daily use. Therefore, service connection for fibromyalgia is warranted based on the presumption in favor of Persian Gulf War veterans. 38 C.F.R. § 3.317. Service Connection for a Bilateral Shoulder Disability During the October 2016 Board hearing, the Veteran testified that she has constant pain in her joints, to include her bilateral shoulders. The medical evidence does not show that the Veteran has a separate diagnosed bilateral shoulder disability; it shows that bilateral shoulder bilateral joint/muscle pain is attributed to fibromyalgia, which the Board is granting in this decision. Based on the evidence of record, service connection for a bilateral shoulder disability is not warranted. The preponderance of the evidence is against the claim for service connection for a bilateral shoulder disability and the issue is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990 ORDER The appeal as to the issue of entitlement to an increased rating for a back disability is dismissed. The appeal as to the issue of entitlement to an increased rating for a neck disability is dismissed. New and material evidence having been received, the claim to reopen service connection for a thyroid condition is granted. Service connection for fibromyalgia is granted. Service connection for a bilateral shoulder disability is denied. REMAND Remand is required for further development of the newly reopened claim of service connection for a thyroid condition, to include hypothyroidism. Although the Veteran was afforded a VA examination in October 2010, it is not adequate because it does not address the Veteran's reported symptoms, to include her thinning hair, constant feelings of being cold, constipation, exhaustion and weight gain. Moreover, during the October 2016 Board hearing, the Veteran testified that has experienced these symptoms since active service, and she has been taking medication for her thyroid since separation from service. As such, remand is warranted for an adequate VA examination and opinion regarding the etiology of her thyroid condition, to include hypothyroidism. In light of the remand, the Veteran should be given an opportunity to identify any VA or non-VA records relevant to the claim on appeal that have not been obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. 2. Upon completion of directive #1, the RO should schedule the Veteran for a VA examination to determine the nature and etiology of her thyroid condition. The claims file, to include a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of her disability upon her ordinary activities, if any. The VA examiner is asked to opine whether it is at least as likely as not (50 percent or greater) that the Veteran's current thyroid condition had onset in service in, or is otherwise etiologically related, to her military service. The examiner is asked to address the Veteran's contention that her reported thinning hair, constant feelings of being cold, constipation, exhaustion and weight gain (all of which she began to experience while in service), were symptoms of an underlying thyroid problem that developed during her active service. The examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of her disability. A complete rationale for all opinions offered should be provided. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs