Citation Nr: 20078954 Decision Date: 12/15/20 Archive Date: 12/15/20 DOCKET NO. 10-00 335 DATE: December 15, 2020 REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a chronic headache disability is remanded. Entitlement to a separate evaluation for fibromyalgia is remanded. Entitlement to an initial compensable evaluation for hepatitis C prior to October 23, 2012, and in excess of 10 percent thereafter is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 1980, with additional periods of active duty for training (ACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and February 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The matters were previously before the Board in September 2012, April 2014, October 2016, and September 2018, when they were remanded for further development. Regrettably, the Board finds that further development of the record is necessary. Where the remand orders of the Board are not substantially complied with, the Board, as a matter of law, errs when it fails to ensure substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). IBS, GERD, Headaches In the previous September 2018 remand, the Board found that the January 2017 VA opinion was inadequate, and a supplemental medical opinion was needed. The Board directed that an opinion be provided as to whether it is at least as likely as not that the Veteran’s GERD, IBS, and chronic headache disability was caused or aggravated (any increase in severity beyond the natural progress of the condition) by her service-connected hepatitis C or polyarthritis, to include medications taken for the conditions (The Veteran indicated at her April 2018 hearing that she takes Tramadol for treatment of her service-connected polyarthritis and her attorney indicated that side effects of this medication are headaches, joint pain, fatigue, IBS, and digestive problems). It was also directed that a rationale must be provided for all opinions and conclusions rendered and should address the particulars of this Veteran’s medical history, all medical literature submitted by the Veteran, her lay statements, any witness statements, and the relevant medical principles as applicable to this claim. A July 2019 VA examiner stated that she concurred with the medical opinions of November 2012 and January 2017 and indicated that there was no additional information. The examiner provided additional comment in October 2019, where she stated that the July 2019 opinion was not insufficient and continued to concur with the November 2012 and January 2017 opinions. The examiner stated that multiple opinions and clarifications had been offered and that referral to a more advanced, specialized provider was needed for the repeated requests. Another opinion was obtained in May 2020. The examiner opined that the Veteran’s GERD and IBS were less likely than not caused by or aggravated by her service-connected hepatitis C or polyarthritis, to include medications taken for the condition. The examiner indicated that the Veteran was infected with hepatitis C in 1983 and was diagnosed in 1990. She did not start developing GERD and IBS until 2003 or 2004, 20 to 21 years after infection and 13 to 14 years after diagnosis. The examiner opined that the time period was too long a latency for this association to be causal in nature. Also, polyarthritis did not cause GERD or IBS as treatment for arthritis began after 2004 to 2005, after the onset of GERD or IBS. The Veteran’s GERD and IBS were also not aggravated by her hepatitis C and polyarthritis as the Veteran reported that GERD and IBS remained about the same over the years, which suggested that it was not aggravated beyond the natural progression of the condition. However, the examiner did not provide any reasoning for the finding that the time period was too long a latency for this association to be causal in nature. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the examiner found that polyarthritis did not cause GERD or IBS as treatment for arthritis began after the onset of GERD or IBS; the fact that the Veteran did not begin treatment for arthritis does not by itself show that her polyarthritis, including Tramadol for treatment did not cause her GERD and IBS. Also, when providing the opinion that GERD and IBS were not aggravated by hepatitis C and polyarthritis as the Veteran reported that GERD and IBS remained about the same over the years, the examiner did not discuss the effect of the Veteran’s medications taken for hepatitis C and polyarthritis, including Tramadol. Accordingly, this matter is remanded to obtain supplemental medical opinions. Regarding a chronic headache disability, the examiner opined that the Veteran’s chronic headache disability was less likely than not caused by or aggravated by her service-connected hepatitis C or polyarthritis, to include medications taken for the condition. The examiner indicated that that the Veteran was infected with hepatitis C in 1983 and was diagnosed in 1990. She did not start developing headache disability until 2000, 17 years after infection and 10 years after diagnosis. The examiner opined that the time period was too long a latency for this association to be causal in nature. Also, polyarthritis did not cause a chronic headache disability as treatment for arthritis began after 2004 to 2005, after the onset of the Veteran’s chronic headache disability. The examiner also stated that the Veteran was cleared of hepatitis C since 2017 due to treatment with Harvoni, so it was unlikely that headaches were aggravated by hepatitis C “to date.” There were two records in December 2017 and June 2019 which indicated aggravation due to treatment with Harvoni in 2017, but they also indicated that there was improvement after time. This inconsistency in the reports suggest that the association was less likely than not. Harvoni would also not cause headaches for two years after completion. Also, since polyarthritis did not cause a headache disability, it was unlikely to aggravate it. The Veteran did not report aggravation with treatment, and the examiner did not find such indication in the medical records. However, the examiner did not provide any reasoning for the finding that the time period was too long a latency for this association to be causal in nature. Id. Also, when finding that polyarthritis did not cause a chronic headache disability, the examiner only indicated that treatment for arthritis began after the onset of the Veteran’s chronic headache disability. The fact that the Veteran did not begin treatment for arthritis does not by itself show that her polyarthritis, including Tramadol for treatment did not cause or aggravate her headache disability. Accordingly, this matter is remanded to obtain a supplemental medical opinion. Separate Evaluation for Fibromyalgia The September 2018 remand directed that the Veteran be scheduled for a VA examination to determine the nature, extent, and etiology of any fibromyalgia disability, to include fatigue/malaise (i.e., tiring easily) and joint pain found upon examination. The examiner was directed to provide opinions as whether the Veteran has a separately diagnosed fibromyalgia condition or are the fibromyalgia symptoms associated with her service-connected hepatitis C or polyarthritis. If the examiner found that any diagnosed fibromyalgia disability is separate from the service-connected hepatitis C or polyarthritis disabilities, then the examiner was to opine whether it is at least as likely as not that any currently diagnosed fibromyalgia was caused or aggravated by the Veteran’s service-connected hepatitis C. The Veteran underwent a VA examination in December 2019. The examiner noted that the Veteran’s current symptoms included headaches, constipation, diarrhea, stiffness, and sometimes swelling in her joints in the mornings. She also suffered from insomnia because her legs feel tight. However, the examiner indicated that the Veteran does not have fibromyalgia and has not ever been diagnosed with fibromyalgia. The examiner opined that the claimed condition was less likely than not related to the Veteran’s hepatitis C. The examiner stated that there was no evidence from the records of a diagnosis of fibromyalgia and the examination was not consistent with a diagnosis or history. There was no joint swelling, limited range of motion, or systemic trigger point tenderness. However, in finding that the Veteran does not have fibromyalgia and has not ever been diagnosed with fibromyalgia, the examiner did not reconcile that finding with the November 2012 VA general medical examination, which included a diagnosis of fibromyalgia, and VA treatment records, including from June 2020, which note fibromyalgia. In addition, the examiner did not address whether the Veteran’s current symptoms, which were noted in the examination report, were associated with the Veteran’s service-connected hepatitis C or polyarthritis. Accordingly, this matter is remanded to obtain a supplemental medical opinion which addresses the entire evidence of record. Hepatitis C As was indicated in the September 2018 remand, the claim for an increased rating for hepatitis C is inextricably intertwined with the claim of service connection for fibromyalgia being remanded, as there is a substantial likelihood that the requested evidentiary development will contain findings relevant to this claim. Therefore, consideration of this matter must be deferred pending resolution of the fibromyalgia claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). TDIU Also, because the Veteran has claimed that she is unable to work due to conditions including headaches and digestive problems, a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU. The issues are therefore inextricably intertwined and a remand of the claim for TDIU is required. See id. All Issues Finally, updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. After completing the above development, forward the claims file to the examiner who provided the May 2020 VA medical opinion regarding the Veteran’s GERD, IBS, and headache disabilities for a supplemental opinion. If the VA examiner who provided the May 2020 opinion is not available, then forward the Veteran’s claims file to another appropriate specialist(s) to obtain medical opinions regarding the Veteran’s claim for service connection for GERD, IBS, and a chronic headache disability. The Veteran should only be scheduled for another examination if it is deemed necessary by the clinician providing the opinion. Based on the review of the entire record and a copy of this Remand, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s GERD, IBS, and chronic headache disability was i) caused or ii) aggravated (any increase in severity beyond the natural progress of the condition) by her service-connected hepatitis C or polyarthritis, to include medications taken for the condition (including Tramadol for treatment of her service-connected polyarthritis). The examiner should consider that although the Veteran did not begin treatment until 2004 or 2005, it does not by itself show that her polyarthritis, including Tramadol for treatment did not cause or aggravate the Veteran’s GERD, IBS, and headache disability. A complete rationale for all opinions must be provided. The clinician is reminded that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completing the above development, forward the claims file to the examiner who provided the December 2019 VA fibromyalgia medical opinion for a supplemental opinion. If the VA examiner who provided the December 2019 opinion is not available, then forward the Veteran’s claims file to another appropriate specialist(s) to obtain medical opinions regarding the Veteran’s claim for a separate evaluation for fibromyalgia. The Veteran should only be scheduled for another examination if it is deemed necessary by the clinician providing the opinion. Based on the review of the entire record and a copy of this Remand, the examiner should answer the following questions: a) Does the Veteran have a separately diagnosed fibromyalgia condition or are the fibromyalgia symptoms associated with her service-connected hepatitis C or polyarthritis. In making this determination the examiner must discuss the November 2012 VA general medical examination, which included a diagnosis of fibromyalgia, and VA treatment records, including from June 2020, which note the Veteran having fibromyalgia. b) If any diagnosed fibromyalgia disability is separate from the service-connected hepatitis C or polyarthritis disabilities, is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed fibromyalgia was caused by the Veteran’s service-connected hepatitis C. c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed fibromyalgia disability was aggravated (any increase in severity beyond the natural progress of the condition) by the Veteran’s service-connected hepatitis C. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.