Citation Nr: 1802057 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-01 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for fibromyalgia, to include whether separate ratings are warranted for irritable bowel syndrome, headaches, and non-rapid eye movement (REM) narcolepsy. 2. Entitlement to service connection for a neurological disorder, to include peripheral neuropathy of the extremities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1979 to August 1983, and from November 1990 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In her January 2012 substantive appeal, the Veteran requested a hearing before the Board. In July 2017, the Veteran withdrew her hearing request. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In October 2008, the Veteran filed claims for entitlement to service connection for fibromyalgia, irritable bowel syndrome, unexplained headaches, and non-REM narcolepsy. In January 2010 she was granted service connection for fibromyalgia and the RO determined that her symptoms of headaches, irritable bowel syndrome, paresthesias, and non-REM narcolepsy were part of her service-connected fibromyalgia. The Veteran is currently assigned a 40 percent rating for her fibromyalgia pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5025. Under Diagnostic Code 5025, ratings are assigned for widespread musculoskeletal pain and tender points "with or without" associated symptoms such as sleep disturbance, paresthesias, headache, irritable bowel symptoms, or Raynaud's-like symptoms. The VA Adjudication Procedure Manual explains that the criteria for evaluation of fibromyalgia under 38 C.F.R. § 4.71a, Diagnostic Code 5025 does not exclude the assignment of separate evaluations when disabilities are diagnosed secondary to fibromyalgia, and includes, but is not limited to, disability diagnoses for which symptoms are included in the evaluation criteria under Diagnostic Code 5025. See M21-1, Part III.iv.4.A.13.c. However, the same signs and symptoms cannot be used to evaluate both the primary and secondary conditions. See 38 C.F.R. § 4.14. If the signs and symptoms are not sufficient to warrant a diagnosis of a separate condition, then they are evaluated with the musculoskeletal and tender points under Diagnostic Code 5025. M21-1, Part III.iv.4.A.13.c. The Veteran asserts that she is entitled to increased ratings for her fibromyalgia, to include separate ratings for irritable bowel syndrome, headaches, and non-REM narcolepsy. She also contends that she developed irritable bowel syndrome, headaches, and non-REM narcolepsy independent of her service-connected fibromyalgia. The Veteran also claims that she is entitled to service connection for peripheral neuropathy of all extremities. Private treatment records dated in 2008 indicated that the Veteran's sleep problems and chronic insomnia were likely to participate in her fibromyalgia. July 2008 private treatment records indicated that the Veteran had severe excessive daytime sleepiness, not consistent with narcolepsy. August 2008 private treatment records noted that a comprehensive workup revealed essential hypersomnolence (non-REM narcolepsy), but no significant obstructive sleep apnea. In August 2009, the Veteran submitted various buddy statements from fellow soldiers describing the Veteran's in-service complaints of abdominal pain, intermittent bowel problems, unexplained headaches, dehydration, nausea, and diarrhea. January 2010 VA treatment records included an impression of mild obstructive sleep apnea. During a January 2009 VA examination, the examiner diagnosed tension headaches secondary to bipolar affective disorder with secondary sleep disorder, but also stated that her headaches started 27 years ago following unsuccessful surgery for pelvic inflammatory disease. February 2010 VA treatment records documented the Veteran's complaints of headaches caused by a fossa arachnoid cyst. During another January 2009 VA examination, it was noted that the Veteran's fibromyalgia symptoms included sleep disturbances, headaches, paresthesias, and gastrointestinal symptoms. The VA examiner also found that the Veteran developed chronic diarrhea and irritable bowel syndrome in service and that her headaches pre-existed her chronic fatigue symptoms. The VA examiner explained that sleep disturbances, migraine headaches, and irritable bowel syndrome are common in patients with fibromyalgia and that it may be impossible to distinguish between the disorders. The Veteran submitted a January 2011 buddy statement from J.A., D.O., who worked in the EVAC Hospital in Saudi Arabia during the Veteran's deployment. Dr. A. stated that the he frequently treated the Veteran for headaches, which were likely related to the environmental and emotional stressors that were prevalent in that location. Dr. A. stated that he recalled the Veteran being hospitalized at least twice for severe gastroenteritis with dehydration. During a March 2011 Decision Review Officer (DRO) hearing, the Veteran testified that she was frequently given pyridostigmine tablets and was exposed to burn pits and insect repellant during service. A May 2013 VA psychiatric examination indicated that the Veteran's service-connected psychiatric disorder symptoms included sleep impairment. A June 2016 VA examiner noted that the Veteran's fibromyalgia symptoms included sleep disturbances, paresthesias, headache, and irritable bowel syndrome. After a careful review of the record, the Board finds that the evidence of record is insufficient to evaluate fibromyalgia and to consider separate evaluations. Specifically, the Board finds that the Veteran must be afforded VA examinations to evaluate the manifestation or severity of her fibromyalgia, irritable bowel syndrome, sleep disorder, and neurological disorder. Moreover, as the Veteran also claims that she developed such disorders independent of her service-connected fibromyalgia, the VA examiners must opine as to whether the disorders are directly related to service, to include environmental hazards. Accordingly, the case is REMANDED for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent VA and private medical records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then the RO or AMC should afford the Veteran a VA examination (s) by an examiner with sufficient expertise to address the etiology of the Veteran's headaches, irritable bowel syndrome, sleep disorder, and neurological disorder, as well as the current severity of her fibromyalgia and any associated symptomatology. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to the following: (a) With respect to each disorder, whether the disorder is clinically distinct from the headaches, irritable bowel syndrome, sleep impairment, and neurological symptoms that are symptoms of her fibromyalgia. (b) If so, whether it is at least as likely as not that the disorder originated during her period of active service or is otherwise etiologically related to her active service, to include the environmental hazards in the Persian Gulf. (c) Whether the Veteran's headaches, sleep disorder, irritable bowel syndrome, and neurological impairment, that are symptoms of her service-connected fibromyalgia, result in separately diagnosed disorder(s). The examiner should specifically address the January 2011 buddy statement from Dr. A. showing that he treated the Veteran for headaches multiple times during service and that she was hospitalized twice during service for severe gastroenteritis with dehydration. The examiner must also consider and discuss the Veteran's statements that she frequently took pyridostigmine tablets and was exposed to burn pits and insect repellant. The rationale for the opinions must also be provided. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. In doing so, the RO must consider whether her headaches, irritable bowel syndrome, sleep disorder, or neurological disorder can be service-connected and/or evaluated separately from fibromyalgia under VA's rating schedule, and if so, whether the award of any separate rating(s) would require a reduction in the evaluation of service-connected fibromyalgia to avoid pyramiding under 38 C.F.R. § 4.14. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). _________________________________________________ LANA JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. The 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).