Citation Nr: 21008905 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-08 573 DATE: February 18, 2021 ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for fibromyalgia is granted. Service connection for fibromyalgia is granted. REMANDED Service connection for left-sided cervical spine disability is remanded. Service connection for left upper extremity neuralgia is remanded. FINDINGS OF FACT 1. In June 2018, the Board denied service connection for fibromyalgia. Additional evidence submitted since the Board’s June 2018 denial relates to an unestablished fact necessary to substantiate the claim. 2. The evidence supports a link between the Veteran’s current fibromyalgia and stress and anxiety attacks due to service-connected disease or injury. CONCLUSIONS OF LAW 1. The June 2018 Board decision, denying service connection for fibromyalgia, is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. Evidence submitted since the Board’s June 2018 denial is new and material, and the claim for service connection for fibromyalgia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Fibromyalgia is proximately due to or a result of service-connected disease or injury. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1996 to October 2000. He timely appealed these matters from a November 2018 rating decision. All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Regarding reopening of a previously denied claim, the Veteran is not entitled to examination prior to submission of new and material evidence. Regarding service connection claims, examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). In August 2020, the Veteran’s representative attempted to withdraw; as an appeal to the Board had already been filed, such is not permissible absent a showing of good cause under 38 C.F.R. § 20.6 (a)(2). To date, good cause has not been demonstrated. The Board acknowledges that issues of entitlement to service connection for a lumbar strain, and for residuals of cold injury to the Veteran’s hands and feet, were previously remanded for additional development. Review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. Reopening VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. A decision of the Board in June 2018 denied service connection for fibromyalgia on the grounds that no nexus to service was shown for current fibromyalgia. The Board’s June 2018 decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Since June 2018, the Veteran has provided treatment records for fibromyalgia; and submitted a private opinion from a physician providing a nexus between current fibromyalgia and a service-connected depressive disorder. The private opinion is material to the question of secondary service connection. Reopening of the previously denied claim for service connection for fibromyalgia is appropriate. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis or organic diseases of nervous system, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Significantly, the presumptive provisions for service connection pertaining to Persian Gulf War service are inapplicable in this case because the Veteran reportedly was serving as a DOD contractor when he was in Kuwait in 2005 and in Afghanistan in 2008; hence, he was not on active duty service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran seeks service connection for fibromyalgia which he believes had its onset in active service or is proximately due to service-connected disease or injury. Clinical evaluation was normal at examination conducted in active service in August 1996 at enlistment, except for asymptomatic pes planus and traumatic scars on hands and lymphatic skin. In April 2000, the Veteran underwent medical screening for low back pain; the physician then noted a questionable diagnosis of fibromyalgia. No separation examination is of record. The Veteran first was diagnosed with fibromyalgia in April 2012. A VA physician at the time indicated that the Veteran had known depression, and that treatment of depression may improve symptoms. In December 2012, the Veteran reported having pain everywhere including in his toes, knees, hips, back, hands, and shoulders. His pain was a Level 10 on a scale of 10 and was aggravated by anxiety attacks and cold weather. In February 2014, a VA physician opined that the Veteran’s current fibromyalgia was less likely than not caused by, or a result of active service. In support of the opinion, the physician reasoned that the Veteran was treated for low back pain from March 2000 to April 2000; and that other than the one handwritten entry of questionable fibromyalgia, there was no further mention of this or other back issues in active service. The Veteran’s condition in active service did not meet criteria for a diagnosis of fibromyalgia, which required a history of widespread pain lasting more than three months. The Veteran’s fibromyalgia progressed intensely in April 2017, with more daily attacks on the Veteran’s joints, nerves, and body. Trauma resulting from a fall at work in October 2017 worsened the Veteran’s fibromyalgia. He reportedly could no longer hold a job. VA records show significant chronic pain in January 2020. Based on research and review of the Veteran’s claims file, a private physician in May 2020 opined that the Veteran’s depressive disorder and the stress it causes have caused his fibromyalgia and continues to exacerbate pain from fibromyalgia. In support of the opinion, the private physician cited specific research of mounting data supporting comorbidity of fibromyalgia syndrome and psychiatric conditions; and the profound impact that the presence of psychiatric symptoms has on the severity and course of fibromyalgia. The Board finds the May 2020 private physician’s opinion to be persuasive in finding it as likely as not that the Veteran’s stress from his service-connected depressive disorder affected his fibromyalgia and its severity. The private physician referenced studies showing a profound impact on the severity of fibromyalgia when psychiatric symptoms are present. The opinion is consistent with the evidence of record showing that the Veteran’s fibromyalgia was aggravated by anxiety attacks. Therefore, the May 2020 opinion is afforded significant probative value because it is based on a review of the Veteran’s medical history and is supported by evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, resolving all doubt in favor of the Veteran, secondary service connection for fibromyalgia is warranted. REASONS FOR REMAND Remand is required with regard to left-sided cervical spine disability and left upper extremity neuralgia. VA contract examinations were provided in October 2018. The examiner offered negative nexus opinions for each. His reasoning for both was identical. He simply stated that current conditions were unrelated to the symptoms experienced in service. Such is not an adequate rationale, as it lacks any evidence of reasoning, and merely states a conclusion. This renders the examinations and opinions inadequate. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for VA spine examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed conditions of the cervical spine. For each, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service. The examiner must discuss reports of pain in service, and continued pain since that time. If current complaints are related to service-connected fibromyalgia, such should be clearly stated. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran for VA peripheral nerves examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed neurological conditions of the left upper extremity. Any necessary testing, to include an EMG or NVC should be accomplished. For each identified condition, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service or a service-connected condition. Solely for purposes of the examination, a cervical spine disability should be presumed service-connected. The examiner must discuss reports of pain in service, and continued pain since that time. If current complaints are related to service-connected fibromyalgia, such should be clearly stated. A full and complete rationale for all opinions expressed is required. 4. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and after an appropriate period for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.