Citation Nr: 21009085 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-12 154A DATE: February 18, 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. These matters come before the Board of Veterans’ Appeal (Board) from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history. The claim for service connection for bilateral leg pain was originally appealed from an October 2014 rating decision. The Veteran filed a Notice of Disagreement (NOD) in January 2015, which resulted in an April 2015 Statement of the Case (SOC). In April 2015, the Veteran filed a substantive appeal. The claim came before the Board in October 2017, which 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), which granted a Joint Motion for Remand (JMR) in October 2018. In June 2019, the Board reopened the claim and remanded it to obtain a VA medical opinion. The claim returned to the Board in May 2020. With regards to the claims for service connection for a lumbar spine disorder and bilateral lower extremity radiculopathy, these claims were originally denied in an April 2008 rating decision. The Veteran filed a petition to reopen the claims and a July 2010 denied those petitions to reopen. Thereafter, the Veteran perfected an appeal as to these claims and the Board declined to reopen the Veteran's claims in February 2014. The Veteran subsequently appealed this decision to the Court. In February 2015, the Court granted a JMR. The Board remanded the claims in November 2015. In March 2017, the Board reopened the claims and remanded for further development. In June 2019, the Board denied both claims. The claims were again appealed to the Court and in a September 2020 JMR, the Court instructed the Board to remand the claims for further adjudication. These claims now come before the Board. 1. Entitlement to service connection for bilateral leg pain, claimed as fibromyalgia is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C.§5103A; 38C.F.R.§3.159. In the May 2020 Board remand decision, the Board specifically instructed the RO to provide an addendum opinion that considered 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 pg. 4-5, April 2014 Statement in Support of Claim, January 2015 NOD, and April 2016 VA Form 9. Furthermore, the Board directed the RO to examine the etiology of the Veteran’s bilateral leg pain (somatic symptoms) as a separate disability, as direct by CAVC, in addition to his diagnosed fibromyalgia. However, the September 2020 C&P examiner did not address the etiology of the Veteran’s bilateral leg pain as a separate disability from fibromyalgia and it appears that the examiner based his opinion entirely on the absence of documented leg pain during service, despite the Veteran’s statements that he reported his leg pain in service, but was not provided treatment.. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Thus, the Board concludes that an addendum opinion should be obtained on remand. The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral leg pain, claimed as fibromyalgia because the September 2020 C&P examination and related medical opinions are inadequate for appellate review. 2. Entitlement to service connection for lumbosacral spine disability is remanded. 3. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. As detailed in the September 2020 JMPR, the July 2017 etiology opinion and the January 2019 addendum opinion provided by the same VA examiner found that the Veteran's claimed lumbosacral spine disability did not have its onset during the Veteran’s service, but instead was caused by an April 2002 post-service work injury. However, CAVC found that the examiner did not address a pertinent medical record that noted the Veteran underwent an MRI in February 2001, before the work injury, revealing the Veteran had a disc protrusion. Thus, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his claimed lumbosacral spine disability and to address the Veteran’s contentions that he had back pain since 1988, in addition to his February 2001 medical record. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, a remand of the service connection claim for bilateral lower extremity radiculopathy is also required because it is inextricably intertwined with the service connection claim for lumbosacral spine disability. Accordingly, the matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA treatment records from the dated from September 2020 to the present, should be obtained. All attempts to obtain records should be documented in the claims folder. 2. After obtaining any outstanding records, return the claims file to the examiner for an addendum opinion on the fibromyalgia. If the examiner who drafted the September 2020 opinion 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 question: Whether it is at least as likely as not that the Veteran’s diagnosed fibromyalgia and bilateral leg pain disabilities are related to an in-service injury, event, or disease, considering the Veteran’s lay statements. The examiner should indicate whether fibromyalgia and bilateral leg pain at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) were noted during service with continuity symptomatology since service. If not, then the examiner should further indicate whether a delayed onset of fibromyalgia and bilateral leg pain are at least as likely as not related to in service disease or injury. The examiner may not rely on the absence of bilateral leg pain findings in service as the sole basis for a negative conclusion/opinion. 3. Further, after obtaining any outstanding records, return the claims file to the examiner for an addendum opinion on the low back disorder and radiculopathy. If needed, the opinion should be rendered by another appropriate medical professional. The examiner must provide an opinion regarding the following question: Whether it is at least as likely as not that the Veteran's diagnosed lumbosacral spine disability and bilateral lower extremity radiculopathy are related to an in-service injury, event, or disease. The examiner should indicate whether the lumbosacral spine disability and the bilateral lower extremity radiculopathy at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) were noted during service with continuity symptomatology since service. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 4. If any opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Appellant, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.