Citation Nr: 21072749 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 12-11 569A DATE: December 6, 2021 REMANDED The claim of entitlement to service connection for an upper back disability, to include as secondary to a service-connected disability, is remanded. The claim of entitlement to service connection for a left leg strain, to include as secondary to a service-connected disability, is remanded. The claim of entitlement to service connection for a right leg strain, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active military service from March 1988 to July 1988 and from March 2003 to May 2004. This matter is before the Board of Veterans' Affairs (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) This case was previously before the Board in December 2017, March 2020, and March 2021, at which times the above issues were remanded for additional development. The case has now been returned to the Board for appellate review. The claims of entitlement to service connection for an upper back disability, left leg strain, and right leg strain, to include as secondary to a service-connected disability, are remanded. The Veteran contends that an upper back disability and bilateral leg strains are related to her military service. Specifically, she contends that she began experiencing upper back and bilateral leg pain during service which has continued since her discharge from service. Notably, the Veteran is presently service-connected for fibromyalgia, which contemplates generalized joint pain. As such, the Board will also consider whether the Veteran has a separate disability of the upper back and/or legs that are related to her military service, to include as secondary to the Veteran's service-connected fibromyalgia. The Veteran's service treatment records do show complaints of upper back pain associated with a left shoulder strain in March 2004 but are negative for complaints regarding the legs. Also, a post-service September 2006 National Guard retention examination shows a normal spine as well as normal lower extremities and, in a report of medical history, the Veteran specifically denied "back pain or any back problems," "painful shoulder," "impaired use of legs," "painful or swollen joints," and "knee trouble." Post-service treatment records are negative for complaints of upper back pain until a September 2009 claim for service connection and are negative for complaints regarding the legs until February 2007 when a February 2007 VA treatment record shows complaints of right leg pain which starts in the thigh and runs down to the ankle but no diagnosis is given other than pain in limb. The Veteran submitted an initial claim for service connection for an upper back disability and bilateral leg strains in September 2009. In support of her claim, she submitted a July 2010 private medical record wherein Dr. W.M. opined that the Veteran's upper back strain and bilateral leg strains are most likely caused by or the result of her active service in Iraq. Unfortunately, as was noted in the December 2017 Board remand, this opinion is inadequate and it does not contain any rationale. As such, the above issues were remanded for a VA examination and medical opinion. Pursuant to the December 2017 Board remand, the Veteran was afforded VA back and leg examinations in July 2018. Significantly, these examination reports reveal symptoms of "pain" in the upper back and bilateral legs as well as functional loss due to pain. In its March 2020 remand, the Board noted that the record also includes a diagnosis of fibromyalgia with reports of chronic musculoskeletal pain and remanded the claim again for another VA examination to determine whether the Veteran's symptoms of joint pain and other symptoms are attributed to known clinical diagnoses, to include fibromyalgia, bilateral leg disability, and/or upper back disability. If not, the examiner was directed to indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The March 2020 Board remand also directed the examiner to provide an opinion as to whether it is at least as likely as not that the Veteran's symptoms of musculoskeletal joint pain and/or fibromyalgia represent a "medically unexplained chronic multi-symptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Pursuant to the March 2020 Board remand, the Veteran was afforded additional VA examinations in September 2020. Notably, a September 2020 VA spine examination shows diagnoses of lumbosacral strain and degenerative arthritis of the spine and the examiner opined that the Veteran's upper back condition was less likely than not related to her period of active service. As rationale for this opinion, the examiner noted the lack of complaints and treatment for an upper back condition after discharge from service. A September 2020 VA leg examination shows diagnoses of degenerative arthritis of the bilateral legs and the examiner opined that the Veteran's left and right leg conditions are less likely than not related to her period of active service. As rationale for this opinion, the examiner noted review of x-ray images of the bilateral knees, which are consistent with the general effects of aging. Subsequently, in a September 2020 VA addendum opinion, the same examiner indicated that the Veteran's fibromyalgia amplifies pain sensations, to include pain from the Veteran's upper back and bilateral leg conditions. However, as was noted in the March 2021 remand, the Board is unable to discern whether the September 2020 addendum opinion is indicating that the Veteran's since service-connected fibromyalgia is aggravating her upper back and bilateral leg conditions, or that the Veteran's upper back and bilateral leg is entirely attributable to her fibromyalgia. As such, the claims were remanded, once again, for an addendum opinion regarding whether the Veteran's upper back and bilateral leg conditions are aggravated by her service-connected fibromyalgia. Pursuant to the March 2021 Board remand, an addendum medical opinion was obtained in May 2021. Significantly, the May 2021 VA examiner opined that it was less likely than not that the Veteran's upper back disability, left leg strain, and right leg strain were proximately due to or aggravated by a service-connected disability, to include fibromyalgia. Unfortunately, the examiner failed to provide a rationale for the conclusion Veteran's claimed disabilities were not proximately due to or aggravated by fibromyalgia. The examiner also failed to discuss any potential nexus with the Veteran's claims and his other service-connected disabilities. As such, the Board finds that the development conducted does not adequately comply with the March 2021 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional medical opinion must be obtained to determine whether the Veteran's upper back, left leg and right leg disabilities were proximately due to or aggravated by a service-connected disability, to include fibromyalgia. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, forward the claims file to a qualified examiner who has not previously examined the Veteran or provided an opinion in the appeal, to provide an addendum medical opinion. The examiner must review the claims file, and note that review in the report. Based on a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's upper back disability, left leg strain, and right leg strain are either proximately due to or aggravated by a service-connected disability, to include fibromyalgia. In providing this opinion, the examiner is directed to specifically consider a September 2020 VA opinion wherein the examiner indicated that the Veteran's fibromyalgia amplifies pain sensations, to include pain from the Veteran's upper back and bilateral leg conditions. See VBMS, document labeled C&P Exam, receipt date 9/25/2020, page 8. The rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if determined to be necessary by the examiner providing the requested medical opinion. (Continued on the next page) 3. Confirm that all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.