Citation Nr: 21003742 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-41 137A DATE: January 22, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a right shoulder injury is remanded. Entitlement to service connection for a left hip condition, including as secondary to a lower back condition, is remanded. Entitlement to service connection for a right hip condition, including as secondary to a lower back condition, is remanded. Entitlement to service connection for vision deterioration is remanded. REASONS FOR REMAND The Veteran served active duty from February 1981 to February 2001. The issues were previously before the Board of Veterans’ Appeals (Board) in May 2019 at which time the Board issued a decision that reopened the Veteran’s claims for entitlement to service connection for a low back condition, bilateral hip conditions, and vision deterioration. The Board denied the Veteran’s claim for a lower back condition and remanded his claims for entitlement to service connection for fibromyalgia, a right shoulder injury, bilateral hip conditions, and vision deterioration. Following the Board’s decision, the Veteran timely appealed the Board’s denial of service connection for a lower back condition to the U.S. Court of Appeals for Veterans Claims (CAVC or the Court). In August 2020, the Court granted an Order for a partial remand consistent with the terms set forth in a Joint Motion for Partial Remand (JMPR). The July 2020 JMPR vacated the issue of entitlement to service connection for a lower back condition, but noted that the Board’s decision that granted petitions to reopen claims for entitlement to service connection for a lower back condition, bilateral hip conditions, and vision deterioration were not disturbed. The Court also noted that the issues of entitlement to service connection for fibromyalgia, right shoulder injury, bilateral hip conditions, and vision deterioration were remanded by the Bord in May 2019 and the Court did not have jurisdiction over these claims. The Court added that the decision denying the Veteran’s claim for an increased rating for his service-connected sinusitis was not challenged by the Veteran and his appeal of that part of the Board’s decision should be dismissed. 1. Entitlement to service connection for a lower back condition The Veteran contends that he suffers from a lower back condition as a result of his service. In the July 2020 JMPR, the parties agreed that the Board erred by failing to ensure compliance with VA’s duty to assist and failed to provide an adequate statement of reasons and bases. The parties agreed that the October 2015 VA examination report was factually inaccurate as the VA examiner opined that the Veteran’s service treatment records “do not indicate a chronic lower back condition,” and the evidence of record indicated chronic low back pain while in service. The parties also agreed that the examiner did not address the Veteran’s statements and other lay statements of record that he “toughed it out” while in service and did not seek treatment for his medical issues. The parties also agreed that the Board did not include a discussion of sections §§ 3.303(b) or 3.309(a), the service treatment records, and the lay evidence of continuity of symptomatology. The parties agreed that upon remand the Board should obtain a new medical opinion that properly addresses the evidence. The Veteran’s service treatment records show that he complained of low back pain in April 1998. In July 2000, the Veteran reported low back pain and was diagnosed with a muscle strain in his low back. In an August 2000 report of medical assessment, the Veteran reported continued back pains and stated that while performing duties in the post office, he hurt his back. On his August 2000 retirement exam, the Veteran was noted to have an abnormal spine with a notation indicating stiff and slight tenderness in his low back. In August 2000, he was noted to have a history of chronic low back pain and was diagnosed with a lumbar strain. The Veteran’s post-service treatment records include a June 2002 VA examination noting recurrent back pain for seven years and noting a diagnosis for muscular back pain. The evidence of record includes written statements submitted in June 2014 and September 2015 from the Veteran’s wife, cousin, and fellow servicemembers that describe the Veteran’s manual labor while working in the post office in service, his reluctance to seek treatment in service, and his continuing low back symptoms since service. In an October 2015 VA back conditions examination, the Veteran reported developing lower back pain in 1992. He was diagnosed with spinal stenosis and L5-S1 disc degeneration. The VA examiner opined that the Veteran’s lumbar disc disease was less likely than not due to his service because he “was seen on one occasion for a lumbar strain of 3 days duration in 7/2000 and was again noted on separation physical in 8/2000.” The examiner noted that the “most remote medical record in 2004 notes low back pain possibly related to lifting at the post office.” He added that the Veteran “developed lumbar disc degeneration in 2010,” and that this “is a common age-related development due to disc dehydration.” The Board finds that an addendum medical opinion is required prior to adjudication of this issue. The opinion should address the Veteran’s and other lay statements of record indicating that the Veteran’s work in the post office caused his current low back condition, his reluctance to seek treatment in service, and his continuing symptoms since service. The opinion should also address the Veteran’s service treatment records showing complaints of low back pain in April 1998, July 2000, and August 2000, to include the notation indicating a history of chronic low back pain. 2. Entitlement to service connection for fibromyalgia, a right shoulder condition, a left hip condition, a right hip condition, and vision deterioration The Veteran contends that he suffers from fibromyalgia, a right shoulder condition, bilateral hip conditions, and vision deterioration as a result of his service. The Veteran also claims that his bilateral hip condition is related to his back disability. See March 2017 VA Form-9. As such, the Board finds that a secondary theory of entitlement has been raised by the record and the issue has been amended accordingly. The issues of entitlement to service connection for fibromyalgia, a right shoulder condition, bilateral hip conditions, and vision deterioration were remanded by the Board in May 2019 in order to obtain VA examinations that addressed the nature and etiology of the conditions, to include in light of Saunders v. Wilkie, 888 F.3d, 1356 (Fed. Cir. 2018). In a September 2019 Report of General Information, it was noted that the Veteran called to notify the VA that he works overseas and that he would like to have the VA examinations mentioned above scheduled before October 17, 2019. The evidence of record indicates that the Veteran was scheduled for such examinations on November 1, 2019, and that the examinations were subsequently cancelled. On November 10, 2020, the Veteran called the VA to reschedule his appointments, stating that he missed the examinations because he was out of the country. The Veteran reported that he has returned and requested to reschedule his examinations. As the Veteran notified the VA that he works overseas prior to his examinations having been scheduled in November 2019, and since he has indicated that he is now back in the country, the Board finds that the Veteran’s examinations should be rescheduled and he should be provided adequate notice of such examination to his most recent address of record. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding the following: a) Is it at least as likely as not that the Veteran has a lower back condition that is related to any in-service disease, injury, or event? In so opining, the examiner must consider and discuss the following: i) The Veteran’s service treatment records indicating complaints of low back pain in April 1998, July 2000, and August 2000, to include a notation that he had a history of chronic low back pain. ii) Lay statements from the Veteran’s wife, cousin, and fellow servicemembers submitted in June 2014 and September 2015 indicating that the Veteran’s work in the post office was labor intensive, he was reluctant to seek treatment in service, and he has had continuing symptoms since service. The examiner is advised that the Veteran as a lay person is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for a VA medical examination to address the nature and etiology of any diagnosed fibromyalgia, right shoulder, left hip, and right hip disorders. Obtain an opinion regarding the following: a) Is it at least as likely as not that the Veteran has any diagnosed fibromyalgia, right shoulder, left hip, or right hip condition that is related to any in-service disease, injury, or event? b) If service connection is warranted for a lower back condition, is it at least as likely as not (50 percent probability or greater) that the Veteran’s left or right hip condition is (1) proximately due to or (2) aggravated beyond its natural progression by the Veteran’s lower back condition? The examiner must also specifically discuss whether the Veteran’s pain for any of the above listed issues reaches the level of a functional impairment of earning capacity. The examiner is advised that the Veteran as a lay person is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 4. Schedule the Veteran for a VA medical examination to address the nature and etiology of any diagnosed vision deterioration. Obtain an opinion regarding the following: a) Is it at least as likely as not that the Veteran has any diagnosed vision deterioration that is related to any in-service disease, injury, or event? The examiner is advised that the Veteran as a lay person is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.