Citation Nr: 21066967 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-52 318 DATE: November 3, 2021 REMANDED Entitlement to service connection for lumbar spine arthritis is remanded. Entitlement to service connection for cervical spine degenerative disc disease is remanded. Entitlement to service connection for fibromyalgia is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2015 and April 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to service connection for lumbar spine arthritis is remanded. 2. Entitlement to service connection for cervical spine degenerative disc disease is remanded. 3. Entitlement to service connection for fibromyalgia is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of these claims for service connection. The Veteran contends that the currently diagnosed disabilities are the result of or exacerbated by the physical nature of being in service, with constant marching, running, walking, and other strenuous activity in extreme weather conditions. In the alternative, the Veteran also asserts that the disabilities are secondary to herbicide agent exposure. Herbicide agent exposure has been conceded by VA based on service in Vietnam. Post-service treatment records show that the Veteran has been diagnosed with degenerative arthritis of the lumbar spine, cervical spine, and fibromyalgia. Prior to Agency of Original Jurisdiction adjudication in January 2015 and April 2015, the record shows diagnoses, and alleged potential causative events in service. However, the Veteran has not been provided a VA examination which addresses any relationship between the claimed disabilities and service. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between the claimed disabilities and active service should be scheduled. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Then, schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of the claimed disabilities. The examiner must review the claims file, including this Remand and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should diagnose all back and neck disabilities found or shown in the record during the pendency of the claim, to include pain resulting in a functional loss of the cervical or lumbar spine. (A) For any diagnosed disability that is found at entrance to service, or clearly and unmistakably preexisted entrance to service, the examiner should opine whether it is clear and unmistakable that the disability was not aggravated (worsened beyond the natural progress of the disease) during service. In this regard, the examiner should reference the Veteran's March 1968 entrance examination which states the Veteran had a neck injury in an automobile accident prior to service. (B) For each diagnosed cervical and lumbar spine disability that is found to not have clearly and unmistakably preexisted entrance to active service, to include any pain resulting in functional loss, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each cervical and lumbar spine disability is etiologically related to active service or any event, disease, or injury during service, including whether any disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by conceded herbicide agent exposure, (4) manifested as arthritis within one year after separation from service, (5) was caused by any service-connected disability or treatment for any service-connected disability, or (6) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability. Please cite to any evidence to support a finding of neck or back arthritis within one year following separation from service. The examiner is explicitly asked to discuss any significance, of the physical nature of being in service on the claimed disabilities. A clearly stated rationale for each opinion should be provided and must not be based on the lack of an in-service record of the claimed disability. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of fibromyalgia. The examiner must review the claims file, including this remand, and should indicate that review in the report. The Board notes that a current diagnosis of fibromyalgia has been conceded by VA. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that currently diagnosed fibromyalgia is etiologically related to active service or any event, disease, or injury during service, including whether the disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) is related to conceded exposure to herbicide agents, (4) was caused by any service-connected disability or treatment for any service-connected disability, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability. The examiner is explicitly asked to discuss any significance of the physical nature of being in service on the Veteran's currently diagnosed fibromyalgia. The examiner is advised that the Veteran is competent to report symptoms and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss any lay statements of record and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.