Citation Nr: 21000518 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-44 832 DATE: January 5, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1988 to March 1993. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), of which the Veteran was sent notice in September 2013. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via Travel Board hearing. A copy of the hearing transcript is of record and has been reviewed. This matter was previously before the Board in March 2019. The Board reopened the service connection claims for fibromyalgia, CFS, a respiratory disability, and an acquired psychiatric disorder and remanded the claims for further development. These claims have now been returned to the Board. Additionally, while on remand, the RO granted service connection for cervical and thoracolumbar spine disabilities (also claimed as polyarthralgia), which is a full grant of the benefit sought on appeal. These claims are no longer before the Board. For clarity, the Board has separated the service connection claims for CFS and fibromyalgia to reflect that the Veteran has recently been found to have both separately diagnosed disabilities. See August 2020 VA examination report. 1. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded; and 2. Entitlement to service connection for fibromyalgia is remanded. The Veteran was afforded a VA examination to determine the nature and etiology of the CFS and fibromyalgia in August 2020. The examiner, a physician, concluded it was less likely than not that the fibromyalgia and CFS were related to service because there was insufficient diagnostic information during service to opine on causality. The examiner also noted that to opine without objective measures would render an opinion based on mere speculation. In the corresponding August 2020 disabilities benefit questionnaire (DBQ), the examiner also noted that the fibromyalgia was diagnosed around 2008 per the Veteran, which was after “she was already out of service.” The August 2020 VA etiology opinion is inadequate in its current form. When an examiner is asked to render an opinion and determines that he or she cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety, including the examination and the opinion itself, shows that “the examiner [did] not invoke the phrase ‘without resort to mere speculation’ as a substitute for the full consideration of all pertinent and available medical facts.” Jones v. Shinseki, 23 Vet. App. 382 (2010). Furthermore, “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). Service connection is not prohibited solely because the disability is not diagnosed until after discharge from service. Thus, these claims must be remanded to obtain an adequate addendum etiology opinion as to the currently diagnosed CFS and Fibromyalgia. 3. Entitlement to service connection for an acquired psychiatric disability is remanded. The service connection claim for an acquired psychiatric disability is remanded to obtain an addendum etiology opinion for the separately diagnosed unspecified anxiety and insomnia disorders, rendered in December 2012 under the Diagnostics and Statistics Manual IV (DSM-IV). The Veteran was afforded a VA psychiatric examination in August 2020. The examiner, a psychologist, concluded the Veteran did not meet the diagnostic criteria for PTSD but met the diagnostic criteria for major depressive disorder (MDD). At the time of the VA examination, under the Diagnostics and Statistics Manual 5 (DSM 5), the examiner explained that the Veteran’s anxiety and insomnia symptoms did not warrant separate diagnoses from the MDD. Nevertheless, during the appellate period, the Veteran was diagnosed with three separate Axis-I psychiatric disabilities under the DSM-IV, including MDD, unspecified anxiety disorder, and unspecified insomnia disorder. Although the August 2020 VA examiner found that, under the DSM-5, the anxiety and insomnia symptoms did not warrant a separate diagnosis from the MDD, the examiner did not address the December 2012 Axis-I diagnoses of anxiety and insomnia disorders. With any service connection claim, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, service connection may be warranted if there was a disability present at any point during the claim period, even if it is not present at the time of the VA examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, on remand, an addendum opinion should be obtained to address whether the December 2012 independent diagnoses of unspecified anxiety and insomnia disorders were valid, and if so, to obtain an etiology opinion to determine if either the anxiety or the insomnia had onset during or is otherwise related to service. 4. Entitlement to service connection for a respiratory condition is remanded. The Veteran was afforded a VA examination in August 2020 for a respiratory disability. The examiner, a physician, found that the Veteran did not meet the diagnostic criteria for a respiratory disability at the time of the examination. The examiner noted that the Veteran was only diagnosed with acute bronchitis in service, which had resolved, and the Veteran had not yet been officially diagnosed with chronic obstructive pulmonary disease (COPD), asthma, or any ongoing respiratory condition. Nevertheless, in November 2016, the Veteran was treated at the VA emergency room for pleuritic chest pain and dry cough. She was diagnosed with community acquired pneumonia with questionable etiology and was admitted for treatment. A March 2018 VA treatment record also indicated the Veteran had a history of bronchial asthma, although she denied being previously diagnosed with asthma in the August 2018 Board hearing. With any service connection claim, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, service connection may be warranted if there was a disability present at any point during the claim period, even if it is not present at the time of the VA examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Despite these conditions either being diagnosed, in the case of the pneumonia, or noted on the Veteran’s medical history, in the case of the past medical history of bronchial asthma, the VA examiner did not address these conditions in the August 2020 medical opinion. On remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the fibromyalgia and chronic fatigue syndrome. Whether an additional physical examination is necessary is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should provide an opinion as to whether the currently diagnosed fibromyalgia and chronic fatigue syndrome had onset during or are otherwise related to service. *The examiner is reminded that all procurable and ascertainable data must be considered when rendering an etiology opinion. If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a thorough rationale for this conclusion. 3. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the two separate DSM-IV diagnoses of unspecified anxiety disorder and unspecified insomnia rendered in December 2012. Whether an additional physical examination is necessary is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the diagnoses of unspecified anxiety disorder or unspecified insomnia disorder were valid as separate diagnoses from the MDD under the DSM-IV, as diagnosed in a December 2012 VA treatment record; b) If the December 2012 diagnoses of unspecified anxiety or insomnia disorders were valid as separate disabilities from the MDD under the DSM-IV, provide an opinion as to whether either had onset during or are otherwise related to service. 4. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of each currently diagnosed respiratory disability during the appellate period, to include community acquired pneumonia with questionable etiology, which was diagnosed in November 2016. Whether an additional physical examination is necessary is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether each currently diagnosed respiratory disability during the appellate period, whether that respiratory disability was diagnosed on physical examination by the examiner or in the treatment records. See e.g., November 2016 VA treatment record which reported a diagnosis of community acquired pneumonia. b) Provide an opinion as to whether the Veteran has ever had a diagnosis of chronic bronchial asthma during the appellate period as noted in a March 2018 VA treatment past medical history. (Continued on the next page)   *Complete rationales must be provided. 5. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.