Citation Nr: 21070467
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 16-05 008
DATE: November 24, 2021

REMANDED

Entitlement to an initial rating in excess of 40 percent for fibromyalgia with irritable bowel syndrome; bilateral shoulder, bilateral elbow, right hip, bilateral ankle, and chest pain; costochondritis; paresthesias bilateral hands; migraines; and hypothyroidism, is remanded.

REASONS FOR REMAND

This matter was most recently before the Board of Veterans' Appeals (Board) in June 2021, when it was remanded for further development.  Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a new opinion addressing whether the Veteran's hypothyroidism has manifest as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion) and mental disturbance (including, but not limited to dementia, slowing of thought and depression)) at any point in the appeal period, i.e., since February 2014, and, if so, the approximate date of onset and crisis stabilization, if not found presently  in efforts to determine whether hypothyroidism should be rated separately from fibromyalgia.  The Board further directed that, if the selected examiner determined myxedema and/or mental disturbance was not manifest during the applicable appeal period, he or she must explicitly address a March 2020 VA examiner's opinion in this regard and explain whether the prior conclusion was in error or whether the condition has since resolved with an estimated date of resolution to the extent possible.  The AOJ obtained the requested opinion in September 2021.  The September 2021 VA examiner opined the Veteran has never manifest myxedema, explaining there is no evidence she was ever hospitalized for a thyroid-related crisis; however, the Veteran submitted a new opinion from a private physician, A.M.G., M.D., in October 2021 that adequately explains the Veteran's hypothyroidism is a separate and distinct condition from fibromyalgia that manifest through myxedema based on treatment records from 2006 and 2007.  While the Board finds the October 2021 private opinion is sufficient to support a finding that the Veteran's hypothyroidism at least as likely as not manifest through myxedema at some point since the initial onset of the condition in 2006, the October 2021 private opinion does not adequately address the material issue of whether myxedema has been present during the applicable rating period, i.e., since February 2014, which is of critical importance because the provisions of 38C.F.R. §4.119, Diagnostic Code 7903, include a six-month temporal element that must be considered in the context of the Veteran's appeal.  In this scenario, VA's duty to assist requires efforts to clarify the private opinion.  See Savage v. Shinseki, 24 Vet. App. 259, 268-69 (2011) (authorizing the Board to seek clarifying information from private medical examiners).

The matter is REMANDED for the following action:

Make efforts to clarify the October 2021 private opinion provided by A.M.G., M.D.  Specifically, A.M.G., M.D., should be asked to address whether it is at least as likely as not (50 percent probability or greater) myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion) and mental disturbance (including, but not limited to dementia, slowing of thought and depression)) have been present at any point in the appeal period, i.e., since February 2014, and, if so, the approximate date of onset and crisis stabilization, if not found presently, with a full rationale to support the conclusion reached in this regard.

All efforts to obtain clarification from A.M.G., M.D., must be documented in the claims file.  If clarification cannot be obtained from A.M.G., M.D., an opinion should be obtained from a VA examiner addressing whether the symptoms noted by A.M.G., M.D., which she explained support a finding of "advanced thyroid disease (temperature intolerance and cardiovascular involvement)" have at least as likely as not (50 percent probability or greater) been present at any point in the appeal period, i.e., since February 2014, and, if so, the approximate date of onset and cessation, if not found presently, with a full rationale to support the conclusion reached in this regard.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.