Citation Nr: 1801632 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-05 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for fibromyalgia, to include as secondary to a service-connected back disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1984 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia in which the RO, inter alia, denied service connection for fibromyalgia. The Veteran timely appealed the denial; specifically limiting his appeal to service connection for fibromyalgia. The appeal is remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has fibromyalgia is a result of service in the Persian Gulf during the Persian Gulf War. For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117 (2012) and 38 C.F.R. § 3.317 (2017). Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more. It is not clear whether the Veteran had service in the Southwest Asia Theater of operations. In a June 2011 statement, the Veteran stated that he deployed to the Gulf War area. The Veteran's DD 214 indicates foreign service. However, the military personnel records reflect that the Veteran's foreign service was in Korea from July 1987 to July 1988 and Germany in March 1990. The AOJ should take appropriate action to determine whether the Veteran served in the Southwest Asia Theater of operations from August 2, 1990 and thereafter. In certain circumstances, service connection may be presumed when a veteran meets the requirements of presumptions established by statute and regulation. Gutierrez v. Principi, 19 Vet. App. 1, 8 (2004). For Persian Gulf war veterans who exhibit objective manifestations of a qualifying chronic disability, 38 U.S.C. § 1117 provides for presumptive service connection when the disability manifests "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021, and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i), (ii). A "qualifying chronic disability" may be one that results from an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness." 38 U.S.C. § 1117(a)(2)(A), (B); 38 C.F.R. § 3.317(a)(2)(ii). The term "medically unexplained chronic multisymptom illness" means "a diagnosed illness without conclusive pathology or etiology that is characterized by overlapping symptoms and signs." 38 C.F.R. § 3.317(a)(2)(ii). Unlike other disability compensation claims, claims based on a qualifying chronic disability under section 1117 and § 3.317(a) do not require a nexus linking the condition to service; rather, they are presumptively service related when the requirements of the statute and the regulation are met. See Gutierrez, 19 Vet. App. at 8. The signs and symptoms that may be manifestations of a medically unexplained chronic multisymptom illness include, but are not limited to, muscle and joint pain. 38 U.S.C. § 1117(g)(4), (5); 38 C.F.R. § 3.317(b)(4), (5). The Veteran complains of constant pain located in the rear of his thighs, upper body, lower extremities, and feet. Private medical treatment notes from Optim Healthcare note that the Veteran had a history of fibromyalgia. The Board notes that the Veteran is currently service connected for a mood disorder, a back disorder, bilateral calcaneal heel spurs, residual scars, and varicose veins. However, the available evidence of record reflects additional symptomatology that may not be attributable to these disorders, and could be indicative of undiagnosed illness or medically unexplained chronic multisymptom illness (if the Veteran meets the other criteria of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, to include fibromyalgia, or some other disability. Accordingly, after the AOJ has determined whether the Veteran served in the Southwest Asia, the Veteran should be afforded a VA examination to determine whether these symptoms are due to fibromyalgia or another disability other than those for which the Veteran is already service connected, to include whether he has symptoms due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if he meets the other criteria of the statute and regulation. In the alternative, the Veteran has additionally asserted that he has fibromyalgia secondary to his service-connected back disorder, lumbar stenosis with claudication and superimposed, non-compressive lumbar disk herniation status post decompressive laminectomy LR-4, L4-5 with right sided foraminotomies. The medical evidence of record does not include an opinion as to whether the Veteran's fibromyalgia was caused or aggravated by his service-connected back disability. A remand for an appropriate VA examination as well as medical nexus opinion is warranted to decide the claim. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Thus, although the Board has characterized the claim as one for service connection for fibromyalgia, should a different disability be diagnosed based on the symptoms described by the Veteran, such should be considered in connection with the claim. Accordingly, the case is REMANDED for the following action: 1. Determine whether the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. Schedule a VA examination with an appropriate physician to determine the nature and etiology of the Veteran's constant pain located in the rear of his thighs, upper body, lower extremities, and feet. All indicated tests and studies should be performed. Access to the entire electronic claims file should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Thereafter, the examiner should address the following: a) Indicate all current disabilities which are manifested by the pain located in the rear of his thighs, upper body, lower extremities, and feet. Specifically indicate whether the Veteran has had fibromyalgia or at any time since approximately March 2011 when he filed the claim on appeal. b) Indicate whether there is any disability other than those for which the Veteran is already service connected that is causing these symptoms. c) As to any disability other than those for which the Veteran is service connected, did such disability have its onset in or is etiologically related to the Veteran's active duty service. d) As to any disability other than those for which the Veteran is service connected, is such disability either (a) caused or (b) aggravated by the Veteran's already service connected back disability. e) If the Veteran is determined to have service in Southwest Asia during the Persian Gulf war, indicate whether there are any symptoms that are due to an undiagnosed illness or medically unexplained chronic multisymptom illness. In providing the requested opinions, the physician should specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records. All finding results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. After the above development has been completed, readjudicate the claim for entitlement to service connection for fibromyalgia, to include as secondary to a service-connected back disorder. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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 (West 2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).