Citation Nr: 21066513 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-40 597 DATE: November 1, 2021 REMANDED Entitlement to service connection for fibromyalgia, also claimed as joint pain due to Gulf War illness, is remanded. Entitlement to service connection for an ulcer disability, to include as secondary to service-connected depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1990 to September 1991, to include service in Southwest Asia from November 1990 to May 1991. He also had service in the Army National Guard, to include a period of active duty for training from August 1987 to December 1987. These matters come to the Board of Veterans' Appeals (Board) on appeal from November 2007 and November 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. The issues on appeal were previously before the Board in June 2015 and March 2020. In June 2015, the Board remanded the issues to the agency of original jurisdiction for additional development. Thereafter, in a March 2020 decision, the Board denied the claims. The Veteran appealed the Board's March 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matters for readjudication. 1. Entitlement to service connection for fibromyalgia, also claimed as joint pain due to Gulf War illness, is remanded. 2. Entitlement to service connection for an ulcer disability, to include as secondary to service-connected depressive disorder, is remanded. The parties to the JMR filed with the Court agreed that the Board erred in failing to ensure that VA had satisfied its duty to assist the Veteran in obtaining private treatment records from E.A. Conway Hospital for the period from August 15, 2005 to August 17, 2005. The parties noted that the Veteran had provided a release for such records in March 2009, and although other records from that facility were obtained, no records for the period specified were in the claims file. The parties agreed that, pursuant to 38 C.F.R. § 3.159(e)(2), VA was required to inform the Veteran that those records were outstanding and to request that he complete the necessary form(s) authorizing VA to obtain the records on his behalf. As to the fibromyalgia claim, the parties further agreed that the Board had provided inadequate reasons and bases as to the adequacy of a March 2017 VA medical opinion. The parties noted that although the examiner concluded that the Veteran's joint pain was due to degenerative joint disease rather than fibromyalgia, the Veteran had reported widespread joint pain prior to degenerative changes being noted on X-ray studies. The parties specifically noted that X-rays of both feet, the right thumb, lumbar spine, and both hands undertaken as part of a December 1997 VA examination did not reveal any significant degenerative changes. It was further noted that there were no significant findings on X-rays of the lumbar spine in February 2009 and January 2012. The parties to the JMR further noted while the Board found in its March 2020 decision that the medical evidence established that the Veteran did not have and never had fibromyalgia, the Board did adequately address a September 2007 prison medical record which listed that condition. The parties also agreed that the Board had not adequately addressed whether the Veteran's joint pain constituted a medically unexplained chronic multi-symptom illness because it did not address whether the pathophysiology of his joint pain was at least "'partially understood" as required by Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018) and 38 C.F.R. § 3.317(a)(2)(ii). Regarding the ulcer claim, the parties agreed that a March 2017 VA medical opinion did not adequately address the Veteran's claim of secondary service connection pursuant to 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995). The parties agreed that although the examiner opined that the Veteran's pyloric ulcer was less likely than not caused or aggravated by the Veteran's service-connected major depressive disorder, the examiner did not clearly provide an opinion as to secondary aggravation because the examiner did "not rule out the possibility that [Appellant's ulcer condition] was also aggravated to some degree by his" service-connected disabilities. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In light of that deficiency, the parties agreed that a new or addendum medical opinion was required that expressly addressed whether the Veteran's ulcer condition has been aggravated beyond its natural progression by his service-connected disabilities (and if so, to what degree). Pursuant to the terms of the JMR, as noted, additional development is required. These matters are REMANDED for the following action: 1. Ask the Veteran to provide a release for records of the treatment he received at E.A. Conway Hospital for the period from August 15, 2005 to August 17, 2005, as well as for any other private care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination pertaining to fibromyalgia and joint pain. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should prepare a report addressing each of the following questions: a. Is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran has had fibromyalgia at any time since October 2006 (when he filed his claim for service connection)? In answering this question, the examiner should comment on the significance, if any, of a September 11, 2007 prison treatment record noting fibromyalgia. The examiner should also consider that the Veteran reported widespread joint pain prior to degenerative changes being noted on X-ray studies. For example, X-rays of both feet, the right thumb, lumbar spine, and both hands undertaken as part of a December 1997 VA examination do not appear to have revealed any significant degenerative changes. Further, there do not appear to have been any significant findings on X-rays of the lumbar spine in February 2009 and January 2012. b. If it is the examiner's conclusion that it is unlikely that the Veteran has had fibromyalgia at any time since October 2006, are the signs and symptoms associated with Veteran's joint pain most consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? c. If it is the examiner's conclusion that the Veteran's disability pattern with respect to the signs and symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not that any such illness or disability is related to service, to include environmental exposures experienced by the Veteran during service in Southwest Asia. A complete rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran scheduled for an examination in connection with his ulcer claim. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should prepare a report addressing each of the following questions: a. Is the Veteran's ulcer disability most consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? b. If the examiner concludes that the Veteran's disability pattern with respect to the signs and symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the illness or disability is related to service, to include environmental exposures experienced by the Veteran during service in Southwest Asia. c. If the examiner concludes that it is unlikely that the Veteran's ulcer is directly related to service, then he or she should express an opinion as to whether it is at least as likely as not that the ulcer (a) was caused or (b) has been aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected disabilities, to include his service-connected depressive disorder. If aggravation is found, the examiner should indicate to what degree the ulcer disability has been aggravated. A complete rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.