Citation Nr: 21007757 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-55 395 DATE: February 10, 2021 REMANDED Entitlement to a rating in excess of 30 percent for bipolar disorder is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for migraine condition is remanded. Entitlement to total disability compensation based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Air Force from January 2001 to September 2003. These matters appear before the Board of Veteran’s Appeals (Board) on appeal of a March 2017 rating decision of the Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge via a virtual hearing; a transcript is of record. 1. Entitlement to a rating in excess of 30 percent for bipolar disorder is remanded. The Veteran underwent VA examination in May 2016. Based upon that examination and the evidence of record, the RO granted the Veteran a 30 percent disability rating for her bipolar disorder. However, the Veteran has repeatedly explained that her bipolar disorder has worsened since her last examination. In her Notice of Disagreement (NOD), she explained that thought her symptoms more closely approximated the criteria for a 70 percent rating. During her hearing, the Veteran testified that she now believes she is entitled to a 100 percent rating for her bipolar disorder. Accordingly, the Veteran should be afforded a new VA examination to determine the current severity of her bipolar disorder. 2. Entitlement to service connection for fibromyalgia is remanded. The Veteran contends that she is entitled to service connection for fibromyalgia. Specifically, the Veteran contends that she had unspecified pain in service which her doctor later attributed to fibromyalgia. The Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of her fibromyalgia. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the appellant’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McClendon, 20 Vet. App. 79. For the Board to make a complete decision, a VA examination is necessary. The Veteran has a current fibromyalgia diagnosis. In service, she sought treatment for hip pain that radiated to her flank which led to normal test results and no definitive findings. During her hearing, the Veteran testified that her doctor indicated that not much was known about fibromyalgia while she was on active duty, and that her current symptoms were similar to the symptoms she experienced in service. Accordingly, the Veteran’s claim is remanded for a VA examination to determine the nature and etiology of her fibromyalgia. 3. Entitlement to service connection for migraine condition is remanded. The Veteran contends that she is entitled to service connection for a migraine condition. Specifically, the Veteran asserts she was first diagnosed with migraines on active duty. The Veteran’s service treatment records contain multiple reports of migraines. However, VA requested a VA examination to address whether the Veteran’s migraines were permanently worsened by her active duty service because her migraines preexisted service. The Board finds no evidence to suggest that the Veteran suffered from or was diagnosed with migraines prior to entering service. Further, the Veteran’s November 2000 entrance examination only noted a right elbow surgical scar. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 111 (2021); Wagoner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). As previously noted, the Veteran’s entrance examination noted her surgical scar on her right elbow. There were no additional conditions nor defects noted on the examination. Consequently, the VA examination conducted was inadequate because it assumed her condition preexisted service. A new VA examination is required to determine the nature and etiology of her migraine condition. 4. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issues of a rating in excess of 30 percent for bipolar disorder, service connection for fibromyalgia, and service connection for migraine condition could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bipolar disorder. 2. Obtain an opinion regarding the Veteran’s diagnosed fibromyalgia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is fibromyalgia at least as likely as not related to service, including treatment for unspecified pain? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Obtain an opinion regarding the Veteran’s migraines. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is her migraine condition at least as likely as not related to service, including migraines and headaches? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. After the above development, readjudicate the appeal including the Veteran’s claim of entitlement to TDIU. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.