Citation Nr: 20049969 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 18-50 120A DATE: July 28, 2020 ORDER Service connection for headaches as secondary to the service-connected fibromyalgia disability is granted. Service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is granted. An effective date prior to January 3, 2017 for the grant of service connection for chronic fatigue syndrome (CFS) is denied. An effective date prior to January 3, 2017 for the grant of service connection for a gastrointestinal disorder is denied. An effective date prior to January 3, 2017 for the grant of service connection for bilateral upper extremity numbness is denied. An effective date prior to January 3, 2017 for the grant of service connection for bilateral lower extremity numbness is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than anxiety disorder, is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected left knee disability is remanded. Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a compensable rating for a gastrointestinal disorder is remanded. Entitlement to a compensable rating for chronic fatigue syndrome (CFS) is remanded. Entitlement to a compensable rating for numbness of the bilateral upper extremities is remanded. Entitlement to a compensable rating for numbness of the bilateral lower extremities is remanded. Entitlement to an effective date prior to January 3, 2017 for the grant of a 10 percent rating for the left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s headaches and anxiety have been attributed, at least in part, to his service-connected fibromyalgia disability. 2. The grant of service connection for the Veteran’s claims for CFS, gastrointestinal disorder, and bilateral upper and lower extremity numbness have been awarded since January 3, 2017, the date of the Veteran’s initial claim for service connection for these disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310 (2019). 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310 (2019). 3. The criteria for an effective date prior to January 3, 2017, for the grant of service connection for CFS are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 4. The criteria for an effective date prior to January 3, 2017, for the grant of service connection for a gastrointestinal disorder are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 5. The criteria for an effective date prior to January 3, 2017, for the grant of service connection for bilateral upper extremity numbness are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 6. The criteria for an effective date prior to January 3, 2017, for the grant of service connection for bilateral lower extremity numbness are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Headaches and Anxiety Disorder The Veteran has been awarded service connection for fibromyalgia. See November 2017 rating decision. During a November 2017 VA fibromyalgia examination report, the Veteran indicated that he was diagnosed with tension headaches in 2017, which the Veteran reported started in approximately 1995. The examiner further indicated that the Veteran had been diagnosed with anxiety disorder in a September 2017 VA psychiatric examination. During the evaluation, the examiner specifically indicated that the Veteran’s headaches and anxiety were “signs or symptoms attributable to fibromyalgia.” As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s headaches and anxiety are, at least in part, secondary to the service-connected fibromyalgia disability. Resolving reasonable doubt in the Veteran’s favor, service connection is warranted. Earlier Effective Date Claims—Laws and Analysis Although the narrative accompanied with the VA Form 9 indicates that the Veteran is satisfied with the effective dates assigned for his CFS, gastrointestinal disorder, and bilateral upper and lower extremity numbness disabilities, the Veteran checked the box on the VA Form 9 that indicates that he wanted to appeal all issues listed in the SOC and any subsequent SSOC. As the evidence is not clear that the Veteran wishes to withdraw the earlier effective date claims from the appeal, the Board will proceed with adjudication. The Veteran is challenging the effective dates assigned for his CFS, gastrointestinal disorder, and bilateral upper and lower extremity numbness disabilities. An October 2017 rating decision granted service connection for the abovementioned disabilities and assigned an effective date of January 3, 2017, the date VA received the Veteran’s claims for service connection. The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a) (2019). See 38 C.F.R. § 3.400. On review, the Board finds that an earlier effective date is not warranted. The Veteran has been awarded service connection for his CFS, gastrointestinal disorder, and bilateral upper and lower extremity numbness disabilities for the entire initial rating period. Accordingly, the claims for an earlier effective date prior to January 3, 2017 for the grant of service connection for CFS, gastrointestinal disorder, and bilateral upper and lower extremity numbness is denied as VA has granted the earliest date allowed under the facts and law of this case. REASONS FOR REMAND Outstanding Federal Records The evidence of record shows that the Veteran has been incarcerated since approximately 2011 at the Federal Prison Camp in Florence, Colorado. The Board notes that the September 2017 VA examiner (psychiatric examination report) indicated that he had reviewed the State of Colorado Department of Corrections records; however, these records do not appear to have been associated with the claims file. Given the Veteran’s long period of incarceration, the Board finds that treatment records from the Federal Prison Camp in Florence, Colorado, may prove relevant to the Veteran’s claims on appeal. As such, these records should be obtained on remand. Hearing Loss The Veteran’s claim for service connection for hearing loss was denied by the Agency of Original Jurisdiction (AOJ) because the Veteran was not found to have a hearing loss disability for VA compensation purposes. Due to the Veteran’s incarceration, he was not afforded a VA examination to assess the nature and severity of his hearing loss. However, VA treatment records include an October 14, 2010 audiology consultation note. At that time, the Veteran was found to have a speech discrimination score of 92 percent in the right ear, which appears to meet the criteria for a hearing loss disability for VA compensation purposes. Moreover, the October 2010 VA treatment note indicated that an audiogram was available “under CPRS Tools Audio display option.” It does not appear that this audiogram has been associated with the claims file. As such, a remand is required. Moreover, given that there is evidence of a hearing loss disability, the AOJ should obtain a medical opinion which properly addresses the etiology of the Veteran’s hearing loss, to include whether it is related to the already service-connected tinnitus disability. Psychiatric Disorder Pursuant to the Board’s decision herein, the Veteran has been granted service connection for anxiety disorder as secondary to his service-connected fibromyalgia disability. During a September 2017 VA psychiatric examination, the examiner diagnosed the Veteran with bipolar disorder and anxiety disorder. It was specifically indicated that the Veteran’s symptoms could be differentiated. Moreover, during the evaluation, the examiner indicated that the Veteran had been prescribed BuSpar when he arrived at the Florence Prison Camp. It was further indicated that the Veteran had been diagnosed by Dr. Oba in 2016 (prison records) with PTSD. As noted above, attempts to obtain the Veteran’s prison treatment records and psychiatric records should be made. Further, a medical opinion should be obtained as to whether the Veteran’s other psychiatric disorders are secondary to the service-connected fibromyalgia disability and/or to the now service-connected anxiety disorder. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for treatment records during his period of incarceration at the Federal Prison Camp in Florence, Colorado. 2. Take appropriate steps to obtain complete treatment and psychiatric records from the Federal Prison Camp in Florence, Colorado, responsible for the Veteran’s incarceration and care since approximately 2011. If such records do not exist or cannot otherwise be obtained, such must be certified in writing, and the Veteran must be properly notified. 3. Associate with the claims file the complete test results from the October 14, 2010 VA audiological evaluation conducted by the Southern Nevada, HCS (Las Vegas HCS). The CPRS Tools Audio Display Option is not accessible to the Board. 4. Then, obtain a VA medical opinion to assist in determining the nature and etiology of the Veteran’s hearing loss. **Given the circumstances surrounding the recent COVID-19 pandemic, refer the case to a VA audiologist for a thorough review of the record and medical opinion. The examiner is asked to address the following: (a.) Indicate whether the Veteran has a hearing loss disability for VA purposes. *VA treatment records include an October 14, 2010 audiology consult note. At that time, the Veteran was found to have a speech discrimination score of 92 percent in the right ear. (b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss was incurred in service or is otherwise related to service. (c.) If the Veteran’s hearing loss is not found to be related to service, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss is either caused or aggravated by the service-connected tinnitus disability. (d.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 5. Obtain a VA medical opinion to assist in determining the nature and etiology of the Veteran’s psychiatric disorders, other than anxiety disorder. **Given the circumstances surrounding the recent COVID-19 pandemic, refer the case to a VA psychologist or psychiatrist for a thorough review of the record and medical opinion. The examiner is asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disorders (other than anxiety disorder) was incurred in service or is otherwise related to service. (b.) If the Veteran’s psychiatric disorder(s) is not found to be related to service, state whether it is at least as likely as not (50 percent or greater probability) either caused or aggravated by the service-connected fibromyalgia disability and/or the now service-connected anxiety disorder disability. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. (Continued on the next page)   6. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.