Citation Nr: 20004606 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-05 801 DATE: January 30, 2020 ORDER Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for floating spots in eyes is remanded. Entitlement to service connection for a disorder manifested by chronic tiredness, to include as secondary to the service-connected sleep apnea, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a facial twitch is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for right knee pain and clicking is remanded. Entitlement to service connection for left knee pain and clicking is remanded. Entitlement to service connection for right knee instability is remanded. Entitlement to service connection for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) residuals and microhemorrhage is remanded. FINDING OF FACT The Veteran’s fibromyalgia is related to service. CONCLUSION OF LAW The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2004 to December 2013, including service in the Southwest Asia theater of action during the Persian Gulf War. His decorations include the Purple Heart. He testified before the undersigned Veterans Law Judge during a December 2019 hearing. This matter is on appeal from March 2014, June 2014, July 2016 and December 2016 rating decisions. REFERRED The issue of an increased rating for lumbosacral strain was raised during the December 2019 hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to service connection for fibromyalgia The Veteran contends that he has fibromyalgia related to his service in the Southwest Asia theater of operations during the Persian Gulf War. September 2018 correspondence. The Board of Veterans’ Appeals (Board) Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. Id. For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). A June 2018 VA rheumatology consult shows the Veteran has a current diagnosis of fibromyalgia. The consult shows that medication was prescribed; a 10 percent rating for fibromyalgia is warranted when continuous medication is required. 38 C.F.R. § 4.71a, Diagnostic Code 5025. The evidence shows that the Veteran's disability has existed for at least six months and is therefore chronic. Upon review of the record, the Board finds the evidence to support a finding that the Veteran has a diagnosis of fibromyalgia, which is a chronic multi-symptom illness that has existed for at least six months and requires continuous medication for control. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for fibromyalgia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for floating spots in eyes is remanded. With regards this issue, and the remaining issues being remanded, evidence indicates that there may be outstanding relevant VA treatment records. During a December 2019 hearing, the Veteran reported that he was treated at a VA Medical Center in June 2019. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Further, in light of the Veteran's testimony of having floaters since service, a new VA examination to address his contentions is necessary. 2. Entitlement to service connection for a disorder manifested by chronic tiredness, to include as secondary to the service-connected sleep apnea, is remanded. As noted above, a remand is necessary to obtain outstanding VA treatment records. Additionally, in light of the Veteran's testimony regarding having a disorder manifested by chronic tiredness, obtaining a VA examination would be beneficial. 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder, because while no diagnosis was rendered at an April 2014 VA examination, the Veteran's 2019 testimony suggests that he may have a current disorder. Therefore, a new VA examination is necessary. 4. Entitlement to service connection for left ankle, left elbow, and right elbow disorders is remanded. The Board cannot make a fully-informed decision on the issues of service connection for left ankle, left elbow, and right elbow disorders, because while a VA examination was afforded to the Veteran in December 2013, no opinions were provided. Therefore, a new VA examination is necessary. 5. Entitlement to service connection for a facial twitch is remanded. As noted above, a remand is necessary to obtain outstanding VA treatment records. Further, in light of the Veteran’s testimony regarding having a disorder manifested by chronic tiredness, obtaining a VA examination would be beneficial. 6. Entitlement to service connection for a neck disorder and right and left knee pain and clicking is remanded. The Board cannot make a fully-informed decision on the issues of service connection for a neck disorder and right and left knee pain and clicking, because while no diagnoses were rendered at a VA examination in December 2013, pain may constitute a disability. Therefore, a new VA examination is necessary. 7. Entitlement to service connection for right and left knee instability is remanded. Since an examination for the remanded issues of service connection for right and left knee pain and clicking could contain findings relevant to the claimed instability, remand of the claims for service connection for right and left knee instability is required. 8. Entitlement to an initial rating in excess of 10 percent TBI residuals and microhemorrhage is remanded. As the Veteran's December 2019 testimony suggests that this disability may have increased in severity since he was last examined by VA in April 2014, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his TBI residuals and microhemorrhage. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed eye disorder, including floaters. The most up-to-date Disability Benefits Questionnaire (DBQ) should be utilized. For any eye disorder, including floaters, diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosis is related to the Veteran’s service, including his combat service. A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the Veteran's testimony of having floaters since service. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed disorder manifested by chronic tiredness. The most up-to-date DBQ should be utilized. For any disorder diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosis is related to the Veteran’s service, including his combat service or is caused is aggravated by his service-connected sleep apnea. (If a disorder manifested by chronic tiredness is found to have been aggravated by the service-connected sleep apnea, the examiner should quantify the approximate degree of aggravation.) A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the Veteran’s testimony of having chronic tiredness due to his service-connected sleep apnea. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed acquired psychiatric disorder. The most up-to-date DBQ should be utilized. For any acquired psychiatric disorder diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosis is related to the Veteran’s service, including his combat service or is caused is aggravated by his service-connected disabilities, as listed in a January 2019 rating decision. (If an acquired psychiatric disorder is found to have been aggravated by the service-connected disabilities, the examiner should quantify the approximate degree of aggravation.) A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the Veteran’s testimony of having anxiety due to his service-connected disabilities. 5. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed left ankle, left elbow, right elbow, neck, right knee, and left knee disorders. (Multiple examinations may instead be conducted; the Board leaves this to the discretion of the AOJ and the facility at which any examination is to be conducted.) The most up-to-date DBQ(s) should be utilized. For any left ankle, left elbow, right elbow, neck, right knee, and left knee disorders diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnoses are related to the Veteran’s service, including his combat service. A complete rationale should be given for all opinions and conclusions expressed. If no joint disorders are diagnosed, and if any reports of pain do not reach the level of a functional impairment of earning capacity, as defined in Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018), the examiner should so state. The examiner should consider the Veteran’s testimony of having left ankle, left elbow, right elbow, neck, right knee, and left knee problems since service. 6. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed facial twitch disorder. The most up-to-date DBQ should be utilized. For any facial twitch disorder diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosis is related to the Veteran’s service, including his combat service. The examiner should consider the Veteran’s testimony of having a facial twitch since service. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI residuals and microhemorrhage. The most up-to-date DBQ should be utilized. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.