Citation Nr: 1806285 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-09 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for fibromyalgia. 2. Entitlement to service connection for chronic bronchitis, as due to exposure to environmental hazards. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, as due to exposure to environmental hazards. 4. Entitlement to service connection for peripheral neuropathy of the upper extremities, as due to exposure to environmental hazards. ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served in the Army from November 1979 to January 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In July 2017, the Board remanded the above-listed issues for further development and readjudication. As discussed below, the claims of entitlement to an increased rating for fibromyalgia and to service connection for peripheral neuropathy must be remanded again prior to a final determination on the merits. However, there has been substantial compliance with the remand instructions in regard to the bronchitis claim, so the Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The issues of entitlement to a higher initial rating for fibromyalgia and of entitlement to service connection for peripheral neuropathy of the upper and lower extremities 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 had chronic bronchitis during the appeal period and it is at least as likely as not related to his exposure to environmental hazards during service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for a chronic bronchitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The claim is being granted, so the Board need not discuss the duties to notify and assist. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's service in Southwest Asia as well as exposure to environmental hazards has previously been established. The Board previously remanded the matter to determine whether the Veteran had a current diagnosis of bronchitis and, if so, the etiology of the condition. Because the Veteran did not appear for the scheduled examination and has not provided good cause to reschedule the examination, the Board will resolve these factual issues on the current evidence of record. 38 C.F.R. § 3.655. With respect to a current disability, the Veteran has been diagnosed with bronchitis on multiple occasions during the appeal period. See August 2010 VA Examination ("The chronic bronchitis that does not appear to be associated with significant pulmonary function impairment is a diagnosable ailment associated with environmental hazard exposure."); March 2013 VA Examination ("The very minimal and stable chronic bronchitis is most likely due to SW Asia exposure."). While the August 2015 VA examiner opined that the Veteran did not have chronic bronchitis based, in significant part, on the results of pulmonary function tests, his statement that the Veteran "has never been diagnosed with chronic bronchitis" is factually inaccurate. Given two separate diagnoses of chronic bronchitis in the record which acknowledge the lack of "significant pulmonary function impairment", the Board finds the evidence is at least in equipoise regarding whether the Veteran has had chronic bronchitis during the appeal period. Both the August 2010 and March 2013 VA examiners concluded that the Veteran's bronchitis was due to environmental exposures. The opinions have sufficient rationales (discussing medical literature and the Veteran's medical history, including increased problems after exposure) to have probative value. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). There are no competent nexus opinions against the Veteran's claim. The evidence is at least in equipoise, so the claim of entitlement to service connection for chronic bronchitis will be granted. Gilbert v. Derwinski, 1 Vet.App. 49, 53-55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for chronic bronchitis is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND After the RO most recently adjudicated the issues of entitlement to an initial rating in excess of 10 percent disabling for service-connected fibromyalgia and entitlement to service connection for peripheral neuropathy of the upper and lower extremities, additional medical evidence has been added to the record including an October 2017 Disability Benefits Questionnaire documenting the results of an October 16, 2017 VA examination and providing medical opinions relevant to each of the issues (fibromyalgia and peripheral neuropathy). See October 13, 2017 Supplemental Statement of the Case; October 16, 2017 DBQ (discussing the etiology of the Veteran's symptoms claimed as peripheral neuropathy and including an opinion that some of the symptoms were properly attributable to the Veteran's fibromyalgia). The Veteran did not submit this evidence; it was developed by the RO in connection with an unrelated matter. Therefore, the claims must be remanded for readjudication and issuance of a Supplemental Statement of the Case (SSOC). Moreover, to avoid further delay of full adjudication of these claims, the Board notes that the October 2017 opinion requires further explanation. The examiner diagnosed peripheral neuropathy of both the upper and lower extremities, but provides inadequate and/or contradictory etiological opinions. Specifically, he opined that the Veteran's peripheral neuropathy is due to his diabetes and that the Veteran's peripheral neuropathy is at least as likely as not incurred in and/or caused by the Veteran's exposure to environmental hazards coincident with his service in Southwest Asia. See October 2017 VA Examination. The direct service connection opinion is inadequate because the rationale is that the Veteran's diabetes is related to in-service exposures and the peripheral neuropathy is related to diabetes. However, the Veteran is not service-connected for diabetes and, in fact, VA has denied service connection for diabetes. An adequate opinion is necessary to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic claims file any outstanding, relevant VA treatment records. 2. After conducting any additional development deemed necessary, the entire claims file should be reviewed by the examiner who examined the Veteran in October 2017 (or another medical professional if that person is no longer available) for the purpose of determining the etiology of the Veteran's peripheral neuropathy. A new examination is not required, unless it is deemed needed. After reviewing the record and performing any examination and/or testing of the Veteran deemed necessary, the examiner(s) should address the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy was incurred in or otherwise related to the Veteran's military service, to include his in-service exposure to environmental hazards coincident with his service in Southwest Asia? In answering this question, the examiner should focus on whether the peripheral neuropathy is etiologically related to the Veteran's active service, including in-service environmental exposures. If the peripheral neuropathy was caused by a nonservice-connected condition (e.g., diabetes), the examiner should provide a negative opinion. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 3. After conducting any additional development deemed necessary, readjudicate the claims of entitlement to (1) an initial rating in excess of 10 percent disabling for fibromyalgia; (2) service connection for peripheral neuropathy of the lower extremities; and (3) service connection for peripheral neuropathy of the upper extremities. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. The appellant 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs