Citation Nr: 21069032 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 09-05 493 DATE: November 17, 2021 REMANDED Entitlement to service connection for a bilateral arm disability, to include as a chronic qualifying disability, is remanded. Entitlement to service connection for a bilateral leg disability, to include as a chronic qualifying disability or as secondary to service-connected lumbar myositis, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to January 1980, from May 2002 to May 2004, and from October 2005 to October 2006. He served in Southwest Asia from November 20, 2005 to September 25, 2006. He had additional service with the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that these issues were previously part of an appeal that included several other issues, including claims for increased evaluations for major depressive disorder, a gastrointestinal disorder, entitlement to a total disability rating based on individual unemployability, and a claim for an earlier effective date for special monthly compensation at the housebound rate. Those appellate issues were addressed by other Board decisions and are not addressed herein. See BVA Decision (January 2021); BVA Decision (February 2021). This appeal has a lengthy procedural history. In pertinent part, a May 2014 Board decision denied the claims of service connection for a bilateral arm disability and a bilateral leg disability. See BVA Decision (May 2014). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which in December 2014 set aside the Board's May 2014 decision, in part, and remanded the case for readjudication in compliance with a Joint Motion (JMR). See CAVC Decision (December 2014). The JMR noted that the issues should be remanded for consideration of service connection under 38 U.S.C. § 1117 as a chronic qualifying disability. See CAVC Decision (December 2014). The Board remanded those, and other, issues in June 2016. See BVA Decision (June 2016). Thereafter, in March 2020 the Board, in part, denied service connection for a bilateral arm disability and a bilateral leg disability. See BVA Decision (March 2020). The Veteran again appealed the Board's decision to the Court. In April 2021, the Court set aside the March 2020 decision and remanded the case for readjudication in compliance with a JMR. See CAVC Decision (April 2021). The JMR found error because the Board had not provided the Veteran with evidence in the claims file that the Veteran had requested and "by not addressing whether Appellant waived his right for the Agency of Original Jurisdiction (AOJ) to review his additional evidence." See CAVC Decision (April 2021). That same month, the Board notified the Veteran that he had 90 days within which to submit additional evidence and how to waive RO consideration of that evidence. See Appeal Notification Letter (April 2021). In July 2021, the Veteran's attorney requested additional time within which to submit additional evidence. See Third Party Correspondence (August 2021). The Board granted the request. See BVA Letter (August 2021). In September 2021, the Veteran's attorney submitted additional evidence in support of the Veteran's claims on appeal. See Medical Treatment Record NonGovernment Facility (September 2021). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a bilateral arm disability, to include as a chronic qualifying disability, is remanded. 2. Entitlement to service connection for a bilateral leg disability, to include as a chronic qualifying disability or as secondary to service-connected lumbar myositis, is remanded. The Veteran contends his bilateral upper and lower extremity disorders are part of a chronic multisymptom illness, and/or are fibromyalgia. See Medical Treatment Record NonGovernment Facility (September 2021). The Veteran also asserts that his arms and legs began bothering him in service. See Correspondence (June 2020). Finally, the Veteran has asserted that his lower extremity symptoms may also be due to his service-connected lumbar spine disability. See Third Party Correspondence (November 2018) First, remand is required for RO consideration of newly submitted evidence. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative. 38 C.F.R. § 20.1305(c). In a September 2021 submission, the Veteran's attorney stated specifically that they did not "not waive initial Regional Office consideration of the newly submitted evidence." See Medical Treatment Record NonGovernment Facility (September 2021). Accordingly, remand is required for RO consideration of this evidence. Second, remand is required for examination and opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Where pain causes functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In addition, service connection is granted for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i). VA medical records and examinations mostly indicate that there are no upper or lower extremity diagnoses, fibromyalgia, or other chronic multisymptom illness. A November 2007 VA examination report, the Veteran denied radicular pain into his legs. See VA Examination (November 2007). In a 2011 VA examination report, the examiner found there was no clinical evidence of lumbar radiculopathy in the lower extremities. See VA Examination (January 2011). In another 2011 VA joints examination, the examiner found there was no UE or LE disability pattern or condition. Motor, sensory, deep tendon reflexes, and muscle strength examination of the upper and lower extremities were normal. There was normal joint stability. See VA Examination (October 2011). A September 2011 VA record noted that the Veteran's symptoms described were compatible with radiculopathy, but noted adequate leg strength and normal deep tendon reflexes. See CAPRI (February 2018). April 2018 VA examinations of the Shoulder/Arm, Knee/Leg, and back were conducted. See C&P Exam (April 2018). The VA examiner opined that there were no diagnoses of the shoulders or knees, and thus they are not aggravated by back problems or are not secondary to back problems. See C&P Exam (April 2018). The examiner found that the Veteran's actual pain could be or is most likely due to aging and not due to any specific traumas related to service. There was no fibromyalgia present. See C&P Exam (April 2018). Also of record are two private opinions. In a March 2015 report, Dr. Ali, Board Certified in Internal Medicine and in Pain and Palliative Care/Hospice, stated that the Veteran's case was "medically complex." See Correspondence (April 2015). They noted that he had had a diagnosis of lumbar degenerative disc disease (DDD) in 2007, less than a year after discharge from his last period of active service, and that in 2011 he was noted to have radicular symptoms. Dr. Ali stated that the DDD now manifested as back pain with radicular symptoms to his lower extremities. Also, they opined that his complaints of diffuse musculoskeletal pain in his back, arms, and legs were consistent with fibromyalgia. Further, his depression was "layered with his medical illnesses" noting that those with fibromyalgia also had fatigue and mood issues. Dr. Ali concluded that he had "a medically unexplained chronic multi-system illness that [was] defined by a cluster of signs or symptoms, including widespread musculoskeletal pain fibromyalgia, memory loss, depression, a respiratory illness and a functional gastrointestinal disorder irritable bowel disorder. It cannot be emphasized enough that these multi-system illnesses are interrelated and layered." See Correspondence (April 2015). In an August 2021 report, Dr. Ali stated that they had reviewed the in-service and post-service records in the claims file. See Medical Treatment Record NonGovernment Facility (September 2021). It was their opinion that lumbar radiculopathy was due to the Veteran's service-connected lumbar disease and, citing to medical literature, that they "disagree[d] with the conclusion that because there was no evidence of radiculopathy on the VA exams that radiculopathy cannot exist based solely on the veteran's complaints of symptoms consistent with radiculopathy." In support of this Dr. Ali cited information simply identified as being "From John Hopkins" which, in part, states that "it's also possible that [patients] don't experience any symptoms or [] go through periodic flare-ups of symptoms." See Medical Treatment Record NonGovernment Facility (September 2021). Dr. Ali also opined that the Veteran's complaints of diffuse musculoskeletal pain in his back, arms, and legs were consistent with fibromyalgia and that there was not depression in isolation but that it was more likely than not that depression was layered with the medical illnesses. See Medical Treatment Record NonGovernment Facility (September 2021). Dr. Ali also stated in her August 2021 report that prior VA examinations had taken each complaint separately and given them individual diagnosis, but have failed to see the picture as a whole and that looking at the Veteran's symptoms as a whole he suffers from degenerative disc disease and a chronic multi-system illness that includes widespread musculoskeletal pain fibromyalgia, memory loss, depression, a respiratory illness and a functional gastrointestinal disorder -irritable bowel disorder and that "these multi-system illnesses are interrelated and layered." See Medical Treatment Record NonGovernment Facility (September 2021). The Board finds that the medical evidence of record as it stands is unclear and does not adequately support a positive or negative nexus. Here, Dr. Ali diagnosed fibromyalgia without examining the Veteran; the medical records do not contain such a diagnosis. However, the 2018 VA examiner found that there was no fibromyalgia present, but did not provide any explanation supporting that conclusion. Additionally, not all necessary opinions for the Veteran's theories on appeal and complaints of pain have been obtained. Given the above, to ensure that VA has met its duty to assist and afforded due process of law, remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the Present. 2. Schedule the Veteran for a VA examination for his alleged bilateral upper and lower extremity disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the asserted disorders. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide the following opinions with supporting rationale: a) Are there any bilateral diagnoses of the upper or lower extremities? If not, is there pain of the upper or lower extremity that causes functional impairment of earning capacity? b) If so, provide an opinion regarding those diagnoses or pain that causes functional impairment and whether it is at least as likely as not that they (1) had onset in service, or (2) are otherwise related to an in-service injury, event, or disease. Consider the Veteran's statements that arm and leg pain began during service, and whether that pain at least as likely as not represent the onset of the relevant diagnoses in service and indicate whether such symptoms are more likely than not due to other causesexplain. c) If not, provide an opinion regarding those diagnoses or pain that causes functional impairment and whether it is at least as likely as not that they are part of service-connected lumbar myositis, or are caused or aggravated by service-connected lumbar myositis? d) If not, provide an opinion regarding whether there is fibromyalgia? e) If not, provide an opinion regarding if there is an undiagnosed illness; or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. f) In addition to any evidence deemed relevant to the examiner, the following evidence shall be considered: i) the March 2015 private medical opinion; ii) the August 2021 private medical opinion; iii) the 2018 VA examinations and medical opinions; iv) STRs showing May 1990 right knee injury; and v) an October 2007 private treatment record noting left elbow lateral epicondylitis. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 3. Ensure that the medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.