Citation Nr: 20028857 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-48 862 DATE: April 24, 2020 REMANDED The following issues are remanded for further development: (1) entitlement to service connection for a left knee condition; (2) entitlement to service connection for a right knee condition; (3) entitlement to service connection for a left shoulder condition; (4) entitlement to service connection for a right shoulder condition; (5) entitlement to service connection for a left foot condition; (6) entitlement to service connection for a right foot condition; (7) entitlement to service connection for a left hand condition; (8) entitlement to service connection for a low back condition; and (9) service connection for fibromyalgia. REASONS FOR REMAND The Veteran served on active duty from November 2012 to August 2014 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the Newark, New Jersey RO. Service Connection After reviewing the evidence of record, the Board finds that the issues of service connection for knee, shoulder, feet, left hand, and low back conditions must be remanded so that the Veteran may be afforded VA examinations. Specifically, the Board notes that the Veteran has reported experiencing pain in each of these areas during the pendency of the claim. Recently, in Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit held that pain alone, when causing functional impairment, may constitute a “disability” for VA compensation purposes, even if the pain is not with an accompanying diagnosis. 886 F.3d 1356, 1368 (2018). Accordingly, the Veteran’s reports of joint pain may qualify as disabilities for compensation purposes, even if they are not accompanied by a diagnosis. Next, the Board notes that, in a report of medical history accompanying his military separation examination, the Veteran stated that he experienced the following symptoms: painful shoulder, elbow, or wrists; recurrent back pain or a back problem; numbness or tingling; foot trouble; swollen or painful joints; knee trouble; and broken bones. In a related April 2014 medical assessment, the Veteran stated that he broke his finger in service. A physician elaborated in May 2014 that the Veteran reported breaking a finger in February 2014 on his squad automatic weapon (SAW) with the feed tray. From these notations in his service treatment records (STRs), the Board finds that the evidence of record has satisfied the in-service incurrence requirement to obtain VA medical examinations. As the Veteran has yet to be afforded an examination with respect to any of the issues on appeal, remand is warranted. Relatedly, in April 2020, the Veteran’s representative noted that the Veteran had been diagnosed with fibromyalgia and that his complaints of pain in multiple joints was related to this diagnosis. Further, the representative stated service connection for fibromyalgia should be granted either (1) on a direct basis due to in-service onset, or (2) on a secondary basis as it could be caused or aggravated by the Veteran’s service-connected posttraumatic stress disorder (PTSD). Accordingly, the Board has added service connection for fibromyalgia to the Veteran’s appeal as it is within scope of the Veteran’s claim. Thus, on remand, a medical opinion addressing fibromyalgia should also be obtained. Lastly, a February 2017 VA primary care note indicated that the Veteran had been receiving medical treatment from a physician at Premier but had not been seen for over a year. As these outstanding non-VA treatment records may be relevant to the Veteran’s service connection claims, the Agency of Original Jurisdiction (AOJ) should attempt to obtain them on remand. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since July 2017. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. Ask the Veteran to identify any non-VA providers who provided him medical treatment, including Premier. For every provider identified, ask him to complete a VA Form 21-4142. Make two requests for the authorized records from the identified facilities unless it is clear after the first request that a second request would be futile 3. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of any shoulder disability.  The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify all current shoulder disabilities by diagnosis.  For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service.  (c.) If and only if a diagnosable shoulder condition IS NOT identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral shoulder pain is a symptom of fibromyalgia. (d.) If and only if a response provided to part (c) indicates that the Veteran’s pain IS NOT a symptom of fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral shoulder pain had its onset in, was caused by, or is otherwise related to service.  In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of any knee disability.  The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify all knee disabilities by diagnosis.  For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service.  (c.) If and only if a diagnosable knee condition IS NOT identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee pain is a symptom of fibromyalgia. (d.) If and only if a response provided to part (c) indicates that the Veteran’s pain IS NOT a symptom of fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee pain had its onset in, was caused by, or is otherwise related to service.  In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of any foot disability.  The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify all foot disabilities by diagnosis.  For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service.  (c.) If and only if a diagnosable foot condition IS NOT identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral foot pain is a symptom of fibromyalgia. (d.) If and only if a response provided to part (c) indicates that the Veteran’s pain IS NOT a symptom of fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s foot pain had its onset in, was caused by, or is otherwise related to service.  In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of any left hand disability.  The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify all current left hand disabilities by diagnosis.  For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service.  (c.) If and only if a diagnosable left hand condition IS NOT identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left hand pain is a symptom of fibromyalgia. (d.) If and only if a response provided to part (c) indicates that the Veteran’s pain IS NOT a symptom of fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left hand pain had its onset in, was caused by, or is otherwise related to service.  In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 7. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of any low back disability.  The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify all current low back disabilities by diagnosis.  For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service.  (c.) If and only if a diagnosable low back condition IS NOT identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s low back pain is a symptom of fibromyalgia. (d.) If and only if a response provided to part (c) indicates that the Veteran’s pain IS NOT a symptom of fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s low back pain had its onset in, was caused by, or is otherwise related to service.  In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 8. After Items (1) – (2) have been completed to the extent possible, forward the Veteran’s claims file to an appropriate VA clinician for a medical opinion regarding the Veteran’s claim for service connection for fibromyalgia.  The entire claims file, including a copy of this remand, must be made available to and must be reviewed by the clinician. If the clinician determines that an examination is necessary, one should be scheduled. Thereafter, the clinician should address the following: (a.) Does the Veteran currently have fibromyalgia? For VA purposes, “current” means occurring at any time during the pendency of the Veteran’s claim—i.e., from May 2016.  (b.) If the Veteran currently has fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service. (c.) If the Veteran currently has fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s fibromyalgia was proximately caused by his service-connected PTSD. (d.) If the Veteran currently has fibromyalgia, please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s fibromyalgia was aggravated (worsened beyond natural progression) by his service-connected PTSD. In providing responses to parts (c) and (d), please explicitly address the Veteran’s representative’s April 2020 Written Brief Presentation. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim.  The examiner must provide a complete rationale for any opinion rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.