Citation Nr: 20045294 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 04-32 868 DATE: July 8, 2020 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (DDD), claimed as a low back disability, is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that a lumbar spine DDD is attributable to the Veteran’s service. CONCLUSION OF LAW Resolving all reasonable doubts in the Veteran’s favor, the criteria for entitlement to service connection for DDD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from May 1975 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at a Board hearing in July 2007. In January 2016 the Board notified the Veteran that the Veterans Law Judge who conducted that hearing was no longer employed by the Board and that if the Veteran did not respond to a request for a new hearing within 30 days, the Board would assume that she did not want another hearing and proceed with this matter. The Veteran did not respond to the letter and it is presumed that she does not desire a new hearing. This case has previously been before the Board in September 2007, March 2010, March 2016, June 2017 and February 2018. In a February 2020 rating decision, the RO granted service connection for arthritis. This is considered a full grant of the benefit on appeal and, as such, is no longer before the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38. C.F.R. §3.310(b). 1. Entitlement to service connection for DDD The Veteran contends that she has DDD due to her service. Specifically, she reports that such is due to a fall off a bus in March 1976 or, in the alternative, due to walking with a limp for several months because of her service-connected left ankle disability. See March 2002 Veteran Statement; see also July 2007 Hearing Testimony at p. 25. A diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) was confirmed upon VA examination in October 2016. The Veteran is competent to relate the details of her experiences in service. The first and second criteria of service connection have been met. The remaining inquiry is whether the diagnosis was due to service. See 38 C.F.R. § 3.310. A review of the available service treatment records show not treatment for a back injury. The Veteran submitted multiple statements from individuals who served with her on Midway Island and discussed their recollections which relate to her galley duties and injuries in service. They also report that she was sent from Midway Island to Tripler Hospital in Hawaii as she was unable to recover from her injuries. A May 2001 private treatment note and x-ray, diagnosed DDD. A January 2002 letter from a private treatment provider encouraged the Veteran to apply for VA disability. The provider discussed treating the Veteran for several disabilities, including DDD, since February 1995 and detailed the Veteran had reported being injured in a fall in service and “has had continuous problems with her ankles, knees and spine since that time”. A February 2004 letter from a private treatment provider linked the Veteran’s low back complaints to her service-connected ankle disabilities. Specifically, the letter states the Veteran “[a]long with her low back complaints I have also been periodically treating her ankles … discussed with me the hx. and chronic discomfort which she states to have had in her ankles since 1975/76. Low back complaints many times are due to factors other than the obvious vertebral misalignment or regional muscular pathology”. A February 2009 VA examination diagnosed lumbar spine disc disease and opined that it is at least as likely as not related to the right ankle disability. The examiner detailed the injury of the ankle as reported by the Veteran and from statements given by fellow sailors, and discussed the absence of medical records documenting injuries, but detailed the complaints of pain continuing from the Navy. The examiner also briefly discussed a motor vehicle accident after service. A January 2012 VA examination diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine. The examiner opined that the Veteran’s lumbosacral spine condition was not caused by injury during active military service and not secondary to altered gait due to her ankle condition. The examiner further opined that her back condition is most likely secondary to injuries in multiple motor vehicle accidents but failed to provide a rationale for these opinions. When examined by VA in October 2016, the Veteran was found to have degenerative arthritis of the spine and IVDS. The examiner recorded the Veteran's report of an onset of symptoms in 1976 after the Veteran fell, provided a positive nexus opinion but failed to address the significance of the Veteran's post-service motor vehicle accidents which have been documented in the record. The RO sought an addendum opinion to obtain clarification of the examiner's rationale, but the examiner was not available at the time to fulfill the request. Another examiner reviewed the record and opined that it is less likely than not that the Veteran's lumbosacral degenerative disc disease and degenerative joint disease were cause by or related to or permanently aggravated beyond the normal progression by any event that occurred during military service including a fall from a bus. The examiner stated "[t]he telling finding is that there is no chronicity of care for any back complaints from the time of military service until a quarter of a century later and after the last motor vehicle accident in 2001, and the Veteran has had consistent care since that time.” The examiner also stated that although the Veteran might have experienced low back pain at various times in her life including while on active duty, she did not sustain a chronic and disabling back injury until the motor vehicle accident in 2001. This opinion was also rejected because if failed to consider the Veteran’s statements of continuous care since the in-service accident. In June 2017, the Board remanded for additional opinions, noting the deficiencies in the October 2016 examiner's rationale, and the January 2017 examiner’s failure to provide an opinion on whether the Veteran's low back disability was caused or aggravated by her service-connected ankles disabilities. Upon VA examination in August 2017, the Veteran reported her 1976 fall, stating that she stepped out of a bus on Midway Island, twisted her left ankle and fell to the ground injuring her low back. She went on to work in the galley, where she had to bend over while washing dishes and serving food. She believes this influenced her back condition. The Veteran also discussed the January 1980 motor vehicle accident in which she injured her low back, and that the pain improved following the event. The examiner noted degenerative disc disease as her only thoracolumbar spine condition; cited medical records from 1998 through 2007; and noted low back pain on the Veteran's VA problem list, but that she was not receiving VA treatment from June 2013 through the present. Of record are at least two VA examinations that provide a positive nexus opinion that identify the Veteran’s back disability as due to her service and/or her service-connected ankle disability. See February 2009 VA examination and November 2016 VA examination. Moreover, the Veteran provided a private opinion that opined “these types of problems are prone to falls, instability and spinal complaints”, tying the Veteran’s back disability to her service-connected ankle disability. See February 2004 Medical Treatment Record. The Board previously rejected the February 2009 opinion for lack of a rationale but failed to mention or discuss the February 2004 opinion. Moreover, the Board relied on the February 2009 examination and opinion to grant service-connection for a left knee disability. She has testified to continuous low back pain and problems since her inservice injury, despite the later motor vehicle accidents. The Board finds that the medical evidence is at least in equipoise that the Veteran’s DDD is proximately due to her service. Resolving all reasonable doubts in the Veteran’s favor, service connection for the Veteran’s low back disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran contends that her currently diagnosed fibromyalgia is due to service. Specifically, she believes her symptoms began shortly after she arrived at her duty station on Midway Island in January 1976. She states she felt like she had the flu but had no fever, had severe muscle pain, fatigue, insomnia, urinary frequency, difficulty remembering instructions, concentrating, jaw pain and severe headaches. See May 2016 Veteran Statement. A June 2013 VA treatment note documents an assessment for “[p]olyarthralgia/[f]ibromyalgia: [n]eck, back, knees and ankles pain 3-5/10”, which seemingly ties several service-connected disabilities to the Veteran’s diagnosed fibromyalgia. The Board has remanded the Veteran's claim in order for the Veteran to undergo an adequate examination noting "the medical evidence indicates that the Veteran was diagnosed with fibromyalgia in 1989, and had symptomatology associated with fibromyalgia since that time" and "in correspondence dated May 2016, the Veteran stated she believed her fibromyalgia started in January 1976 shortly after she arrived on Midway Island. Although she is not competent to provide a diagnosis of her condition at that time, the Veteran did describe symptomatology during that time. Neither the 2016 or 2017 examiners considered her claimed symptomatology, nor did the examiners note the earlier diagnosis of fibromyalgia. The Veteran underwent a VA fibromyalgia examination in August 2017. The examiner noted the Veteran was diagnosed with fibromyalgia in 2004. The examiner opined "It is less likely than not that the Veteran's fibromyalgia is etiologically related to active service. The available service treatment records are silent for treatment of, diagnosis of, or complaints consistent with a much later diagnosis of fibromyalgia. As stated previously it is understood that the STRs are incomplete. The available medical records post service document that the veteran initially was diagnosed with a chronic pain syndrome a.k.a. fibromyalgia in 2004. The available records support that the veteran developed symptoms that were diagnosed as fibromyalgia in the early 2000s, many years after discharge from the service. There are no records found showing that the Veteran had symptoms consistent with fibromyalgia prior to that time." The August 2017 examiner noted the reported 1989 diagnosis and continuous symptoms reported by the Veteran since 1976 when recording the Veteran's history. However, there is no indication in the rationale provided that the examiner considered these statements, as the examiner's rationale explicitly relies on "available medical records". Although a medical examiner need not discuss all the potentially favorable evidence of record to render an adequate opinion, the examiner's opinion must still be based on consideration of the relevant medical history, which may be conveyed via lay statements. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[T]here is no reasons-or-bases requirement imposed on examiners."); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). Furthermore, an opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App.23, 39-40 (2007) (finding a VA opinion inadequate where the examiner did not comment on the Veteran's report of injury in service and relied on lack of evidence in the service treatment records to provide a negative opinion). The Board notes that Veteran reported to a physical therapist in July 2005, that she was diagnosed with fibromyalgia in 1989. See July 2005 Private Treatment Note. Similarly, a December 2001 letter from a private treatment provider further supports a possible diagnosis of fibromyalgia prior to 2004, as the letter states "[d]iagnoses brought forward to this office include but are not limited to: degenerative disk disease, arthropathy, fibromyalgia, chondromalacia, and carpal tunnel." See December 27, 2001 Private Treatment Letter. While the November 2019 VA examination noted the Veteran’s reported onset of symptoms, she claimed were due to service, there was no detailed discussion as to her reported symptoms, nor was there mention of the reported earlier diagnosis. This information is confirmed by statements made by fellow service people and of record. Moreover, the examiner relied on the previous opinions, and as with the previous opinions provided, the examiner relied explicitly on the available medical records. In making this determination, the Board is cognizant that these matters stem from a January 2003 rating decision and have been the subject of multiple prior Board remands. However, VA has a duty to assist Veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2016). Accordingly, when VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the medical examination is inadequate, the Board cannot proceed with the merits of this claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). The matter is REMANDED for the following actions: 1. Update the record for any VA or private treatment records. The most recent VA treatment records date to December 2019. 2. Obtain an addendum opinion on whether the Veteran’s fibromyalgia is at least as likely as not (50 percent probability or greater) that the currently diagnosed disability had its onset in or is otherwise related to any incident of his service, to include as secondary to her service-connected disabilities. The need for an in-person examination is left the discretion of the examiner. The June 2013 VA treatment note linking fibromyalgia to several service-connected disabilities should be specifically addressed. 3. Specifically, the examiner should address the Veteran’s May 2016 statement detailing her symptoms in January 1976 of flu-like symptoms with no fever, severe muscle pain, fatigue, insomnia, urinary frequency, difficulty remembering instructions, concentrating, jaw pain and severe headaches. The examiner should also address the competent and credible testimony of a diagnosis in 1989, and continuous symptoms from service. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. 4. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any evidence of a diagnosis of a chronic pain disability in the Veteran’s service treatment records or immediately thereafter. In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelsey Love, 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.