Citation Nr: 21068774 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-44 832 DATE: November 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, unspecified anxiety disorder, and unspecified insomnia disorder, is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current acquired psychiatric disability is etiologically related to her service-connected cervical and lumbar spine disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from August 1988 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In a March 2019 decision, the Board reopened the Veteran's claims for service connection for fibromyalgia, chronic fatigue syndrome, a respiratory disability, and an acquired psychiatric disability and remanded the claims for further development. The Board also remanded entitlement to service connection for polyarthralgia, cervical spine, and thoracolumbar spine disabilities. In a September 2020 rating decision, the RO granted service connection for a cervical spine disability and assigned a 20 percent rating, effective July 31, 2012. The RO also granted service connection for a lumbar spine disability and assigned ratings of 0 percent from July 31, 2012 and 10 percent from November 6, 2016. This is considered a full grant of the benefits sought for these claims; therefore, they are no longer before the Board for appellate consideration. In January 2021, the Board remanded the issues of service connection for fibromyalgia, chronic fatigue syndrome, a respiratory disability, and an acquired psychiatric disability for further development. In an August 2021 rating decision, the RO granted service connection for a respiratory disability and assigned a 10 percent rating, effective November 6, 2016. This is considered a full grant of the benefits sought for this claim; therefore, it is no longer before the Board for appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for an acquired psychiatric disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that service connection is warranted for an acquired psychiatric disability. The Board finds that the theory of secondary causation by the Veteran's service-connected cervical and lumbar spine disabilities has been raised by the record and will therefore be considered. See May 2013 VA mental disorders examination report. As an initial matter, the Board finds that the Veteran has a current psychiatric diagnosis of major depressive disorder. See VA examination reports dated May 2013 and August 2020. The Board further finds that the evidence is in relative equipoise as to whether the Veteran has additional diagnoses of unspecified anxiety and insomnia disorders. See December 2012 VA mental health H & P note; July 2021 VA medical opinions. Accordingly, a current acquired psychiatric disability is established. Next, as noted previously, the Veteran is service connected for cervical spine and lumbar spine disabilities. See September 2020 rating decision. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's service-connected cervical and lumbar spine disabilities and her current acquired psychiatric disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disability is etiologically related to her service-connected cervical and lumbar spine disabilities. In the May 2013 VA mental disorders examination report, the VA examiner wrote, "A January 2013 MH outpatient note read [that the Veteran had] 'been coping with myriad stressors including chronic pain, reports of chronic fatigue related to fibromyalgia, and underemployment.' The most recent MH note in her chart reads, 'strong psychosocial and pain issues contributing toward mood and anxiety symptoms.' She is diagnosed at VA Mental Health with fibromyalgia, depression, anxiety, and chronic pain. Today, the veteran told this examiner, 'between the physical, and the mental, it's just too much now.' She said that in 2009, she felt 'at the brink of insanity.' She was diagnosed with fibromyalgia in 2012, and that doctor also noted cervicolumbar intervertebral disc disease, and polyarthralgia." While the May 2013 VA examiner provided a negative opinion as to direct service connection, he also opined that the Veteran's acquired psychiatric disability was "most[] likely due to a combination of: 1) chronic pain and disability related to multiple medical conditions, including fibromyalgia and intervertebral disc disease; 2) underemployment; 3) being stalked by an ex-husband after her second divorce around 2006, such that she had to live a 'nomadic' life for a time; and 4) being forced to live with her parents due to all these issues, intermittently since 2006, including 2011-current..." (emphasis added). The Board finds the May 2013 VA medical opinion to be adequate and highly probative given the examiner's full consideration of the Veteran's medical history. Although the Veteran's service-connected cervical and lumbar spine disabilities were not the only causes of the Veteran's current acquired psychiatric disability, the May 2013 VA medical opinion establishes that they, at the very least, contributed to its development. The Board emphasizes that 38 C.F.R. § 3.310 does not require that a service-connected disability be the sole cause of the claimed disability for service connection to be granted. For these reasons, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted on a secondary basis. The appeal is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran asserts she is entitled to service connection for fibromyalgia. The Board finds that additional development is necessary prior to appellate review of this claim. In a February 2018 private treatment record, the Veteran was given discharge instructions that included a general handout about myofascial pain syndrome, also known as fibromyalgia. The handout stated that the Veteran's condition can be "due to emotional stress (such as problems on the job or in your personal life) ..." Given that the Veteran is now service connected for an acquired psychiatric disability, the Board finds that a medical opinion should be obtained as to whether the Veteran's fibromyalgia is proximately due to or aggravated by her service-connected acquired psychiatric disability. 2. Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran asserts she is entitled to service connection for chronic fatigue syndrome. The Board finds that additional development is necessary prior to appellate review of this claim. In July 2021, the Veteran was provided an additional VA examination to determine the nature and likely etiology of her chronic fatigue syndrome. The July 2021 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, in pertinent part, "Veteran states that her time of military service was [f]rom 1988 through 1993, and during those years she did not have the symptoms that relate to Chronic Fatigue Syndrome (CFS). She advises me that these symptoms did not start until 2010 when she had an acute episode of weakness with body aching that required her to stay in bed for 3 months. After a review of the records presented to me[,] I have not found evidence of CFS[-]like symptoms while she was performing her military service. Therefore[,] it is my opinion that the veteran's CFS is less likely than not incurred in or caused by her time in military service." However, the Board observes that in service treatment records (STRs) dated July 1989, the Veteran complained of tiredness, lethargy, and chronic fatigue for about 6 to 7 months prior. On remand, the VA examiner should specifically address these STRs when providing an etiology opinion. Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's fibromyalgia, preferably from the VA examiner who completed the July 2021 VA examination report, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran's fibromyalgia is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by her service-connected acquired psychiatric disability. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 2. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's chronic fatigue syndrome, preferably from the VA examiner who completed the July 2021 VA examination report, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran's chronic fatigue syndrome at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * Specifically, address the July 1989 service treatment records in which the Veteran complained of tiredness, lethargy, and chronic fatigue for about 6 to 7 months prior. (Continued on the next page) 3. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.