Citation Nr: 21074723 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-12 154A DATE: December 16, 2021 REMANDED Entitlement to service connection for bilateral leg pain, claimed as fibromyalgia, is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1987 to August 1990. This matter originally came to the Board of Veterans' Appeal (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the claim of service connection for bilateral leg pain, claimed as fibromyalgia, in an October 2014 rating decision, the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for fibromyalgia. The Veteran, through his attorney, filed a Notice of Disagreement (NOD) in January 2015, claiming that the Veteran had pain and tingling in his legs which was either due to radiculopathy or fibromyalgia. The RO issued a Statement of the Case (SOC) in April 2015. Later that month, the Veteran, through his attorney, perfected an appeal via his submission of a VA Form 9. In an October 2017 decision, the Board denied reopening the claim of entitlement to service connection for fibromyalgia. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending before the Court, the Veteran's attorney and a representative of VA's General Counsel (the parties) filed a Joint Motion for Remand (JMR). In October 2018, the Court granted the motion, vacated the October 2017 Board decision, and remanded the matter for readjudication. In a June 2019 decision, the Board reopened the claim and remanded it to the RO for additional evidentiary development. The claim was returned to the Board in May 2020. With respect to the claims of service connection for a low back disability and radiculopathy, in an unappealed April 2008 rating decision, the RO denied service connection for a low back condition and bilateral lower extremity radiculopathy. In a July 2010 rating decision, the RO determined that new and material evidence had not been received to reopen the claims. The Veteran submitted an NOD in August 2010. Following the issuance of an SOC in April 2012, the Veteran perfected a timely appeal via his submission of a VA Form 9 later that month. In July 2013, the Veteran testified at a Board hearing before a Veterans Law Judge. In a February 2014 decision, the Board determined that new and material evidence had not been received to reopen the claims. The Veteran appealed this decision to the Court. In February 2015, the Court granted a JMR filed by the parties. The Board remanded the claims in November 2015. In a March 2017 decision, the Board reopened the claims and remanded them for further development. In June 2019, the Board denied both claims. The Veteran appealed the Board's June 2019 decision to Court. In September 2020, the Court granted a JMR filed by the parties, vacated the Board's June 2019 decision, and remanded the matter for readjudication. In February 2021, the Board remanded all of the claims on appeal for additional development. Following the issuance of a Supplemental Statement of the Case in July 2021, the RO returned the claims to the Board. The Board notes that in January 2021, the Veteran's attorney submitted a NOD with a March 2017 rating decision which denied service connection for left and right wrist carpal tunnel syndrome, neck condition, and sleep disorder. In this NOD, the Veteran's representative argued that the NOD was timely, as he claimed that neither he nor the Veteran had received notice of the March 2017 rating decision. As the RO has not yet addressed this matter, it is not currently before the Board. In November 2021, the Board advised the Veteran that the Veterans Law Judge before whom he had testified was no longer employed by the Board. He was offered the opportunity to request an additional Board hearing within 30 days. Having received no response from the Veteran, the Board will proceed with consideration of the claims. 1. Entitlement to service connection for bilateral leg pain, claimed as fibromyalgia, is remanded 2. Entitlement to service connection for a lumbar spine disorder is remanded 3. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded With respect to all claims, pursuant to the February 2021 Board remand, the RO, in correspondence dated in February 2021, requested that the Veteran complete and return an enclosed VA Form 21-4142 (Authorization to Disclose Information to VA) so that it could obtain the authorization to request treatment records from the Veteran's private medical sources listed on a received VA Form 21-4142a (General Release for Medical Provider Information to VA). In April 2021, the Veteran submitted VA Form 21-4142 and VA Form 21-4142a via photos from his mobile device; however, the request was rejected as the Veteran's submissions were illegible. The record currently before the Board contains no indication that the Veteran was notified that his submitted forms were illegible or that that the RO made any effort to obtain additional private treatment records after April 2021. Accordingly, the Board finds that VA's duty to assist with respect to obtaining outstanding treatment records has not been met. On remand, the Veteran should be requested to resubmit legible copies of the VA Form 21-4142 and VA Form 21-4142a. The RO must then undertake the appropriate efforts to obtain these records from the appropriate medical treatment providers and associate them with the claims file. With regard to fibromyalgia, the Board notes that pursuant to the February 2021 Board remand, the RO obtained an addendum opinion in May 2021 to determine the etiology of the condition as a separate disability from his bilateral leg pain. The May 2021 examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated, "A review of the Veteran's medical treatment records does not definitively show Veteran has a diagnosis of fibromyalgia." The examiner indicated that a 2001 medical report noted mild leg pain but only noted four tender spots, which did not meet the clinical medical criteria for fibromyalgia. The examiner indicated that treatment records since 2001 show the bilateral leg pain is explained by bilateral lower extremity radiculopathy. The examiner also indicated that despite the Veteran's lay statement of continuous pain since 1988, a 1992 reserve examination noted no back pain, bilateral lower leg pain, or generalized muscle tenderness to suggest that fibromyalgia may have existed since service. In reaching this conclusion, it appears the May 2021 examiner based her opinion on the lack of treatment records and ignored the Veteran's lay statements that his leg pain started in service and that he was not provided treatment despite going to sick call. See November 2013 Hearing Transcript, April 2014 Statement in Support of Claim, January 2015 NOD, and April 2016 VA Form 9. Further, she failed to reconcile the Veteran's previous diagnosis of fibromyalgia in the February 2020 VA examination with her current finding. Accordingly, on remand, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Associate legible copies of the VA Form 21-4142 and VA Form 21-4142a submitted by the Veteran via facsimile on April 23, 2020, with the claims file. If legible copies do not exist, then request that the Veteran resubmit the VA Form 21-4142 and VA Form 21-4142a. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. 2. After obtaining any outstanding records, return the claims file to the May 2021 VA examiner for an addendum opinion on the Veteran's claimed fibromyalgia. If the May 2021 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner must provide an opinion regarding the following questions: (a) Is it at least as likely as not that the Veteran has fibromyalgia? If not, the examiner should attempt to reconcile his/her opinion with that of the previous February 2020 VA examiner. (b) If the examiner finds that fibromyalgia is an appropriate diagnosis, is it at least as likely as not that the diagnosed fibromyalgia is related to an in-service injury or disease? In providing the requested rationale, the examiner should consider the Veteran's reported symptoms in service and thereafter. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how fibromyalgia is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board has made no credibility determination at this juncture, pending the findings of the examiner. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.