Citation Nr: 20023046 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 18-26 083 DATE: April 2, 2020 ORDER Entitlement to service connection for restless leg syndrome is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent for fibromyalgia is remanded. Entitlement to an initial evaluation in excess of 10 percent for a service-connected acquired psychiatric disorder is remanded. Entitlement to an initial evaluation in excess of 10 percent for a service-connected disability of the cervical spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected disability of the thoracolumbar spine is remanded. Entitlement to an initial evaluation in excess of 10 percent for hypothyroidism status post right hemithyroidectomy is remanded. FINDING OF FACT The Veteran’s restless leg syndrome began during active service. CONCLUSION OF LAW The criteria for service connection for restless leg syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1993 to August 1997, from June 1998 to November, 2000, and from December 2000 to May 2014. 1. Entitlement to Service Connection for Restless Leg Syndrome The Veteran contends that she is entitled to service connection for restless leg syndrome because onset occurred during active service. The Board agrees. First, through her representative, the Veteran competently and credibly reports that she is currently receiving pharmacological treatment for restless leg syndrome that ease her symptoms while sleeping. Second, the Veteran’s service treatment records document an in-service diagnosis of restless leg syndrome. Third, the Veteran’s restless leg syndrome clearly onset during her active service and has continued since then. Accordingly, the criteria for entitlement to service connection for restless leg syndrome are met. 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). An April 2015 VA examination noted no diagnosis for a peripheral nerve disorder. However, because they were uploaded to her claims file after the examination was performed the examiner did not have access to the Veteran’s service treatment records noting a diagnosis for restless leg syndrome. The examiner also failed to adequately consider the Veteran’s reports of in-service and post-service treatment for restless leg syndrome. Thus, the Board affords the examiner’s determination that the Veteran does not have a current diagnosis for restless leg syndrome no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In light of the foregoing, entitlement to service connection for restless leg syndrome is granted. REASONS FOR REMAND As an initial matter, the Board observes that the May 2015 rating decision noted “review of electronic medical records” from the North Florida, South Georgia VA Healthcare System. Those treatment records, however, are not included in the Veteran’s claims file. To facilitate the evaluation of the Veteran’s service-connected disabilities and to adjudicate the claims on appeal, those records must be associated with the Veteran’s claims file. See 38 U.S.C. § 5103A. 1. Entitlement to an Initial Evaluation in Excess of 10 Percent for an Acquired Psychiatric Disorder The Board concludes that the Veteran’s claim for an initial evaluation in excess of 10 percent for her service-connected acquired psychiatric disorder must be remanded for two reasons. First, the record indicates that there are outstanding private treatment records. In her April 2015 VA examination, the Veteran reported that she was receiving private mental health treatment and had been prescribed an antidepressant. The VA examiner noted in the examination report that the records for this private mental health treatment were not available. They should be requested and, if obtained, associated with the Veteran’s claim file. See 38 U.S.C. § 5103A. Second, the Veteran’s representative contends in a March 2020 statement that the April 2015 VA examination is inadequate because it did not consider the Veteran’s diagnosis for an eating disorder. Her representative notes that the Veteran’s in-service treatment for her depression and eating disorder documented symptoms warrant a rating in excess of 10 percent, to include memory difficulties, major depression, anxiety, flattened affect, and disturbances of motivation and mood. Her representative also highlighted that the Veteran’s eating disorder was the basis for an in-service medical board review. The Board agrees that the April 2015 VA examination is inadeaquate. Given the examiner’s inattention to the Veteran’s eating disorder and its impact on her psychiatric symptomatology, the Veteran should be afforded a new VA examination to assess the severity of her service-connected psychiatric disorder. 2. Entitlement to Initial Evaluations in Excess of 10 Percent for Service-Connected Disabilities of the Cervical Spine and Thoracolumbar Spine The Veteran’s claims for initial evaluations in excess of 10 percent for service-connected disabilities of the cervical spine and thoracolumbar spine must be remanded to afford the Veteran new VA examinations. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the U.S. Court of Appeals for Veterans Claims (the Court) addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion compliant with the Court’s opinion in DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. The April 2015 VA examinations noted the Veteran’s report of flare-ups. However, the examiner stated that functional ability during flare-ups for both service-connected disabilities of the spine could not be estimated without resorting to speculation because the Veteran was not examined during flare-ups. Based on the examination report, the examiner did not attempt to elicit from the Veteran information regarding the frequency, severity, or duration of any flare-ups. The examiner could have also asked the Veteran to describe any impact the flare-ups have on her functional ability. Accordingly, the Board concludes that the limitation identified by the examiner is personal to her rather than a limitation of knowledge in the medical community, and, therefore, the examination is not compliant with Sharp, 29 Vet. App. at 33. A remand for new VA examinations that satisfy the Sharp standards is required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159; 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to an Initial Evaluations in Excess of 10 Percent for Fibromyalgia and in Excess of 10 Percent for Hypothyroidism Status Post Right Hemithyroidectomy As noted above, the Veteran’s claims file does not include treatment records from the North Florida, South Georgia VA Healthcare System. Thus, the examiner responsible for the April 20, 2015 VA examinations for fibromyalgia and hypothyroidism post right hemithyroidectomy could not review them as part of the evaluation of the etiology and severity of those conditions for which the Veteran is now service connected. Moreover, the examiner responsible for the examinations noted that the Veteran’s most recent service treatment records were similarly unavailable at the time of the April 2015 VA examinations. Essentially, the records needed to evaluate the severity of the Veteran’s service-connected fibromyalgia and hypothyroidism were not available to the examiner as of the April 2015 examination. The Veteran’s service treatment records have since been obtained and included in the Veteran’s claims file. As noted above, there are outstanding VA treatment records that have not been obtained and associated with the Veteran’s claims file. The Veteran should be afforded new examinations for her service-connected fibromyalgia and hypothyroidism once all of her VA treatment records have been obtained and associated with her claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the North Florida, South Georgia VA Healthcare System. 2. Ask the Veteran to complete a VA Form 21-4142 for any mental health treatment providers. Make two requests for the authorized records from any mental health treatment providers unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected psychiatric disorder. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected psychiatric disorder alone. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected disability of the cervical and thoracolumbar spine. 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.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (b.) The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected fibromyalgia. 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. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected hypothyroidism post right hemithyroidectomy. 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. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, Associate 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.