Citation Nr: 1807204 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-14 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for bilateral foot calluses to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to a rating in excess of 40 percent for fibromyalgia. 4. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1979 to February 1983 and from November 1990 to June 1991 and this service included service in the Southwest Asia theater of operations from January 1991 to April 1991. The Veteran also had intervening as well as subsequent service with a Reserve Component. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board also finds that the TDIU issue is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As to all the issues on appeal, since February 2012 VA has been on notice that the Veteran was applying for disability benefits from the Social Security Administration (SSA). However, the Veteran's SSA records have not been associated with the claims file. Therefore, the Board finds that a remand to obtain these records is required. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). As to the claims of service connection for a low back disability and bilateral foot calluses, the Board finds that a remand to obtain adequate etiology opinions is also required in light of the outstanding records and the Veteran's Persian Gulf service. As to the claim for rating in excess of 40 percent for fibromyalgia, the Board finds that while the appeal is in remand status the Veteran should also be provided with a new VA examination to ascertain the current severity of his disability because his last examination in August 2011 does not take into account the additional medical records that have been added to the record. As to the claim for a TDIU, this issue is inextricably intertwined with the above claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Service connection is currently in effect for fibromyalgia, PTSD and for an undiagnosed condition of the musculoskeletal system, which are rated as 40 percent, 30 percent and 10 percent respectively, resulting in a combined 60 percent rating. Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. Associate with the claims file the Veteran's records from the SSA. 2. Associate with the claims file all of the Veteran's post-October 2016 treatment records from the Hampton VA Medical Center. 3. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 4. Provide the Veteran an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. 5. Notify the Veteran that he may submit lay statements from him-self and from other individuals who have first-hand knowledge of any in-service problems with his low back disability and foot calluses as well as any continued problems since that time. Also ask the Veteran to submit lay statements from himself and from other individuals who have first-hand knowledge of any current problems caused by his fibromyalgia, as well as his other service-connected disabilities, to specifically include his PTSD, on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 6. Provide the Veteran with an examination to obtain medical opinions as to the diagnosis and origins of any low back disability and disability manifested by bilateral foot calluses including under 38 C.F.R. § 3.317. The claims folder should be made available to and reviewed by the examiner. The examiner should respond to the following questions: (1) Provide a current diagnosis for any low back disability and disability manifested by bilateral foot calluses. If the Veteran does not now have, but previously had, any such disability, when did that condition resolve? (2) For each diagnosed disability, is it at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during his service including his documented service in the Southwest Asia theater of operations from January 1991 to April 1991? (3) If the Veteran's diagnosis includes arthritis in the low back, is it at least as likely as not that it manifested itself in the first post-service year following either of his periods of active duty? (4) For each diagnosed disability, is it at least as likely as not that it was caused by any already service-connected disability? (5) For each diagnosed disability, is it at least as likely as not that it was aggravated (i.e., permanently worsened) by any already service-connected disability? (6) If a nexus to his service or an already service connected disability cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. If, after reviewing the claims file, you determine that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations from January 1991 to April 1991. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing the requested opinions, the examiner should comment on the Veteran's competent lay reports. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his fibromyalgia. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. 8. Then readjudicate the appeal. If any benefit sought on appeal is not granted in full, provide the Veteran with a supplemental statement of the case (SSOC) that, among other things, provides notice of the laws and regulations governing TDIU and undiagnosed illness claims as well as notice of the evidence added to the claims file since the last SSOC. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).