Citation Nr: 1802259 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-39 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for osteoarthritis. 3. Entitlement to service connection for osteoporosis. 4. Entitlement to service connection for cervical spondylosis. 5. Entitlement to service connection for lumbosacral spine with osteopenia and degenerative joint disease, also claimed as lumbar spondylosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to October 1954 and was awarded the Army of Occupation Medal (Germany) and National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran raised a motion to advance on docket due to his age in a July 2017 statement. The undersigned is granting that motion and advancing the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claims are decided. The Veteran contends that service connection for fibromyalgia, osteoarthritis, osteoporosis, cervical spondylosis, and lumbar spondylosis is warranted as a result of his duties in service. Post-service treatment records document complaints, treatment for, and diagnoses of chronic pain, lumbago, lumbar degenerative disc disease and spondylolisthesis, osteoarthritis, cervical degenerative disc disease and spondylolisthesis, and fibromyalgia. January 2011 and October 3013 statements from the Veteran's private physician relate the Veteran's conditions to service. The Veteran submitted copies of service records in his possession that document his active duty service. He indicated that he served in the 26th Infantry Division during basic training in Breckenridge, Kentucky and then was stationed overseas in Bamberg, Germany with the 101st Infantry Division. Unfortunately, the Veteran's service treatment records are unavailable for review and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973. See July 2004 and June 2005 Response from the NPRC (reflecting that the veteran's complete medical/dental record is "fire-related"); February 2011NA 13055 Request for Information Needed to Reconstruct Medical Data. See also VBA Manual M21-1, III.iii.2.E.1 (Records Destroyed by Fire at the NPRC). In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has not yet been afforded a VA examination in connection with his service connection claims. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board further notes that "a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Given the Veteran's contentions that his disabilities are related to service, his current diagnoses, and VA's heightened duty to assist, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the etiology of his fibromyalgia, osteoarthritis, osteoporosis, cervical spondylosis, and lumbar spondylosis. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should address the following: a. With respect to each diagnosed disability of fibromyalgia, cervical spine condition, lumbar spine condition, osteoarthritis, and osteoporosis, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the Veteran's in-service duties as part of the 26th Infantry Regiment. Please note that a medical opinion which concludes that a disease is not related to service solely because there is absence of medical records is inadequate. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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). _________________________________________________ S.C. KREMBS 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. 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).