Citation Nr: 18143478 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-21 709 DATE: October 19, 2018 ORDER Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for lumbar degenerative disc disease is remanded. Entitlement to an initial disability rating in excess of 10 percent for right ulnar neuropathy is remanded. Entitlement to service connection for a left upper extremity disability, claimed as nerve damage, is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a gastrointestinal disability, claimed as acid reflux, is remanded. FINDING OF FACT It is at least as likely as not the Veteran’s fibromyalgia became manifest during active duty service in the Persian Gulf. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In the December 2012 claim, the Veteran stated he seeks service connection for nerve damage to his left shoulder/arm/hand and acid reflux. Subsequent statements from the Veteran and his representative indicate the Veteran seeks service connection for a disability of the left upper extremity manifested by pain and weakness, however diagnosed. An April 2013 VA examination report includes diagnoses of gastroesophageal reflux disease (GERD) and hiatal hernia. The Board has recharacterized the issues as entitlement to service connection for a left upper extremity disability and for a gastrointestinal disability to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for fibromyalgia Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). First, the Veteran’s DD Form 214 indicates the Veteran served in Iraq from August 2006 to August 2007. Accordingly, the Board finds the Veteran is a Persian Gulf Veteran who served in the Southwest Asia theater of operations. 38 C.F.R. § 3.317(e). Next, an April 2013 VA examiner diagnosed fibromyalgia. Finally, in a September 2007 Post-Deployment Health Assessment, the Veteran reported experiencing muscle aches during his deployment in Iraq. During the April 2013 VA examination, the Veteran reported his fibromyalgia began in February 2007. Accordingly, the Board will afford the Veteran the benefit of reasonable doubt, and finds it is at least as likely as not the Veteran’s current fibromyalgia first manifested during his service in Iraq. Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds the medical evidence of record shows a diagnosis of fibromyalgia that became manifest during the Veteran’s active duty service in the Southwest Asia theater of operations. Accordingly, the Board finds that a grant of service connection is warranted for fibromyalgia. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar degenerative disc disease is remanded. The Veteran was last afforded a VA examination of his back in April 2013. However, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not ascertain adequate information from the record regarding how factors such as pain, weakness, and/or fatigability limit the Veteran’s functional ability of the lumbar spine during flare-ups and/or following repetitive use over time. On remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected back disability. 2. Entitlement to an initial disability rating in excess of 10 percent for right ulnar neuropathy is remanded. The evidence of record indicates the Veteran’s right ulnar neuropathy has increased in severity since the Veteran was last examined in April 2013, as the Veteran now reports that he experiences a loss of grip strength and will drop objects. See December 2013 notice of disagreement. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right ulnar neuropathy. 3. Entitlement to service connection for a left upper extremity disability is remanded. An April 2013 VA peripheral nerves examiner indicated the Veteran did not have a current diagnosis of a nerve disability of the left upper extremity. However, the Veteran’s left upper extremity pain may constitute a disability when such pain results in functional impairment or functional limitations. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Upon April 2013 VA examination, the examiner noted mild intermittent pain and numbness in the Veteran’s left upper extremity. In the December 2013 notice of disagreement, the Veteran’s representative indicated the Veteran experiences weakness and loss of strength including dropping objects due to losing his strength to grasp, and that any kind of overhead work causes increased arm and hand pain and numbness. Therefore, the evidence of record indicates the Veteran’s left upper extremity symptoms, including pain, result in functional impairment. Accordingly, the Board finds a remand is necessary to obtain a medical opinion as to whether the Veteran’s left upper extremity disability is related to his left upper extremity complaints during active duty service. 4. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends his current neck disability is related to his active duty service, to include stress and strain from carrying heavy loads, frequent jarring and twisting forces, frequently being thrown around during rough rides in Humvees, and due to a jolt to his head/neck from the explosion of an improvised explosive device (IED). See August 2016 representative statement; December 2013 notice of disagreement; April 2013 VA neck examination report; December 2012 claim; see also January 2008 Post-Deployment Health Reassessment (reporting a blow or jolt to the head during combat). However, the April 2013 VA examiner did not provide a nexus opinion. Accordingly, the Board finds a remand is necessary to obtain a medical opinion as to whether the Veteran’s current cervical spine disability is related to his active duty service. 5. Entitlement to service connection for a gastrointestinal disability is remanded. The Veteran contends his current gastrointestinal disability began during his active duty service. See December 2013 notice of disagreement; December 2012 claim. In an October 2013 opinion, a VA examiner opined the Veteran’s current GERD with hiatal hernia has a clear and specific etiology and diagnosis, but did not opine whether the current disability is related to the Veteran’s active duty service. See also October 2013 Request for Physical Examination. Further, a medical opinion has not been obtained to address the theory of secondary service connection. The Veteran’s representative contends the current gastrointestinal disability may be related to the Veteran’s use of pain medications for his service-connected back disability. See August 2016 representative statement. The Veteran also contends his current gastrointestinal disability may be related to stress associated with his service-connected mental condition. See December 2013 notice of disagreement; December 2012 claim. Accordingly, the Board finds a remand is necessary to obtain a medical opinion as to whether the Veteran’s current gastrointestinal disability is related to his active duty service or a service connected disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from September 2015 to the present. 2. Schedule the Veteran for examinations of the current severity of his lumbar spine disability and his right ulnar neuropathy. The examiners should provide full descriptions of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiners must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiners should identify any symptoms and functional impairments due to the lumbar spine disability alone, and the right ulnar neuropathy alone, and discuss the effects of the Veteran’s lumbar spine disability and right ulnar neuropathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Obtain an opinion from appropriate clinician to determine the nature and etiology of the Veteran’s current left upper extremity disability. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the evidentiary record, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current left upper extremity disability is related to his active duty service? The clinician should specifically address the Veteran’s repeated complaints and treatment during service for pain and weakness in the left shoulder and arm. The clinician should also address the Veteran’s contention that his left upper extremity was injured during combat training, reinjured while deployed, and that the condition has stayed the same, with sporadic flare-ups, since service. b) If the clinician determines the Veteran’s current left upper extremity disability is an organic disease of the nervous system, the clinician should opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current cervical spine disability. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the evidentiary record, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiry: For each current cervical spine disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability is related to his active duty service? The clinician should specifically address the Veteran’s contentions that his current cervical spine disability is related to stress and strain from carrying heavy loads, frequent jarring and twisting forces, frequently being thrown around during rough rides in Humvees, and/or due to a jolt to his head/neck from the explosion of an IED during service. 5. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current gastrointestinal disability, to include GERD and hiatal hernia. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the evidentiary record, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) the Veteran’s current disability is related to an in-service injury, event, or disease, including exposures to Gulf War environmental hazards? The clinician should address the Veteran’s contention that he had a lot of acid reflux during active duty service, including since he came back from combat, which increased after his separation from service. b) For each gastrointestinal disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability was caused by his service-connected back disability, to include pain medication, and/or his service-connected PTSD, alone or in combination? The clinician should address the Veteran’s contentions that the pain medication he takes for his back disability has caused his stomach problems including acid reflux and GERD. The clinician should also address the Veteran’s contention he has had acid reflux since he came back from combat due to the stress he feels. c) For each gastrointestinal disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current disability is aggravated by his service-connected back disability, to include pain medication, and/or his service-connected PTSD, alone or in combination? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel