Citation Nr: 21002683 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-16 320 DATE: January 14, 2021 REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to an effective date prior to April 18, 2018 for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 70 percent PTSD (except for a period of temporary total disability over 21 days during which a temporary 100 percent evaluation was assigned) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Navy from March 1984 to August 1985. These matters are on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO awarded service connection for PTSD effective April 18, 2018 and denied the Veteran’s claims of entitlement to service connection for migraines, fibromyalgia, and a low back disability. In a January 2020 rating decision, the RO increased the disability rating assigned for the Veteran’s service-connected PTSD. The Board notes that the issue of entitlement to a total disability rating based on unemployability (TDIU) is part and parcel of an increased rating claim where, as here, a claimant asserts that her service-connected disabilities prevent her from working. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the RO has already inferred a claim of entitlement to TDIU and adjudicated that issue in an October 2020 rating decision. As the appeal period for that decision has not expired, the decision is not yet final, and the Board will therefore not address that issue herein. Regrettably, for the reasons discussed below, the Veteran’s claims must be remanded for additional development before the Board may proceed with adjudication. At the outset, the Board notes that VA treatment records are available only for the months of November 2017 and December 2019. The Veteran submitted VA treatment records covering the period from October to December 2019. The Veteran also submitted an April 2019 letter from the VA psychologist and member of the PTSD Clinical Team in VA’s Behavioral Health service, who treats the Veteran for PTSD. The letter indicates the Veteran has received VA medical treatment for PTSD and other disabilities throughout the period on appeal and suggests that there are VA treatment records that have not yet been associated with the claims file. Therefore, remand is warranted to obtain these additional treatment records. The record also indicates the Veteran has undergone back surgery twice. The August 2018 VA back conditions disability benefits questionnaire (DBQ) indicates the Veteran underwent surgery for a herniated disc in 2010 and for spinal fusion in 2012. Unfortunately, as records associated with these surgeries are unavailable, it is unclear whether they happened through VA or through a private provider. The RO should attempt to obtain these records on remand. Additionally, the record indicates the Veteran is in receipt of Social Security disability benefits due to her PTSD and possibly her back disability. However, there are currently no Social Security records associated with the Veteran’s claims file. As these records may provide additional information concerning the nature and severity of the disabilities on appeal, remand is also necessary to obtain any Social Security disability determinations and the medical reports relied upon in making such determinations. Regarding the claim of entitlement to service connection for fibromyalgia, the Board notes that available VA treatment records suggest the Veteran may have been diagnosed with fibromyalgia during the period on appeal. In an October 2020 brief in support of the Veteran’s appeal, the Veteran’s attorney seemed to suggest the Veteran’s claimed fibromyalgia was related to her service-connected PTSD. The attorney noted that the Veteran’s August 2018 PTSD examination documented issues such as fatigue, sleep, memory, and mood issues, which are also considered symptoms of fibromyalgia. To date, the Veteran has not been afforded a VA examination in connection with her claim. Therefore, remand is warranted to schedule the Veteran for a VA examination to determine the nature and etiology of her claimed fibromyalgia. Finally, the record indicates the Veteran’s PTSD has worsened since her last VA examination in August 2018. Specifically, VA treatment records show the Veteran was hospitalized for her disability from October to December 2019. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Therefore, on remand, the Veteran should be afforded another VA PTSD examination to determine the severity of her disability. Accordingly, the matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA medical treatment records, including records of inpatient and outpatient mental/behavioral health treatment. 2. Obtain a copy of any Social Security decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such Social Security disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by the Social Security Administration for the Veteran. All requests for records and their responses should be associated with the claims file. Any records obtained should be associated with the claims file. All attempts to obtain these records should be documented in the claims file. 3. With any necessary assistance from the Veteran, attempt to obtain records associated with the Veteran’s 2010 and 2012 back surgeries. All attempts to obtain these records should be documented in the claims file. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed fibromyalgia. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s fibromyalgia disability is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran’s fibromyalgia disability is caused or aggravated by her service-connected PTSD. The VA examiner must provide separate findings and rationales relating to causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. All opinions expressed by the examiner must be accompanied by a complete rationale. 5. Schedule the Veteran for a VA psychiatric examination to determine the current symptoms and severity of her service-connected PTSD using the most recent DBQ examination form. The Veteran’s electronic claim file should be made available to the examiner, and the examiner is requested to review the claims file and indicate that such was accomplished in the examination report. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran’s current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. The examiner is asked to specifically address the Veteran’s hospitalization from October to December 2019. (Continued on the next page)   6. After completing the requested actions, as well as any additional action deemed warranted, readjudicate the Veteran’s claims. If the benefits sought on appeal remain denied, the Veteran and her attorney should be furnished a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate consideration. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.