Citation Nr: 21013133 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-46 578 DATE: March 8, 2021 ORDER 1. Entitlement to a disability rating in excess of 70 percent for unspecified trauma and stress-related disorder has been withdrawn and is dismissed. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) has been withdrawn and is dismissed. 3. Entitlement to service connection for sleep disturbance has been withdrawn and is dismissed. 4. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities, is denied. REMANDED 5. Entitlement to a disability rating in excess of 20 percent for post laminectomy syndrome, status post disk replacement and fusion, is remanded. 6. Entitlement to a disability rating in excess of 10 percent for right S1 (lower extremity) radiculopathy is remanded. 7. Entitlement to a disability rating in excess of 10 percent for neuralgia, left lower extremity, is remanded. 8. Entitlement to service connection for right upper extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, to include as secondary to service-connected post laminectomy syndrome, status post disk replacement and fusion, is remanded. 9. Entitlement to service connection for left upper extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, to include as secondary to service-connected post laminectomy syndrome, status post disk replacement and fusion, is remanded. FINDINGS OF FACT 1. On June 16, 2017, prior to the promulgation of a decision in the appeal, VA received written documentation withdrawing the issues of entitlement to service connection for PTSD and entitlement to service connection for sleep disturbance. 2. At the January 8, 2021 Board hearing, the Board received explicit and unambiguous notification from the Veteran that a withdrawal of the claim of entitlement to a disability rating in excess of 70 percent for unspecified trauma and stress-related disorder was requested. At the hearing, the Veteran reiterated her intent to withdraw the claims for service connection for PTSD and sleep disturbance. 3. Fibromyalgia was not incurred in service, caused by or otherwise related to service; or shown to be caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to disability rating in excess of 70 percent for unspecified trauma and stress-related disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for the issue of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the appeal for the issue of entitlement to service connection for sleep disturbance have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for service connection for fibromyalgia, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1996 to June 1997, October 2000 to April 2001, April 2003 to August 2003, and April 2007 to September 2008. In January 2021, the Veteran provided testimony in a virtual Board hearing before undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Withdrawal The Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by her authorized representative. Id. In a June 16, 2017 written submission, the Veteran’s then representative requested that it be accepted as a formal notification that the Veteran wanted to withdraw the issues of entitlement to service connection for sleep disturbance and PTSD. At the January 2021 hearing, the Veteran and her current representative stated that the Veteran wanted to withdraw the issues of (1) entitlement to a disability rating in excess of 70 percent for unspecified trauma and stress-related disorder; (2) entitlement to service connection for PTSD; and (3) entitlement to service connection for sleep disturbance. The undersigned confirmed this during the hearing after the Veteran was sworn in. The Veteran withdrew the issues (1) explicitly, (2) unambiguously, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See Transcript on pages 2 3. The Board finds that the Veteran effectively withdrew the issues from the appeal. Accordingly, there remain no allegations of errors of fact or law for appellate consideration in regard to the issues of (1) entitlement to a disability rating in excess of 70 percent for unspecified trauma and stress-related disorder; (2) entitlement to service connection for PTSD; and (3) entitlement to service connection for sleep disturbance. 1. Entitlement to a disability rating in excess of 70 percent for unspecified trauma and stress-related disorder. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 2. Entitlement to service connection for PTSD. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 3. Entitlement to service connection for sleep disturbance. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 4. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities. The Veteran asserts that service connection for fibromyalgia is warranted as secondary to the service-connected lumbar spine disability. The Veteran testified that she did not start having symptoms until after her spinal fusion in 2016. The Veteran stated that an emergency room doctor at VA told her that the mixed signals between her neurons with her pain misfired and that is why she was starting to have some bouts of fibromyalgia. See January 2021 Board hearing transcript at pages 9 to 12. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for a fibromyalgia is warranted. The reasons follow. The Veteran has current diagnosis of fibromyalgia. The June 2017 VA examination report shows a 2014 diagnosis of fibromyalgia. The history was noted as a diagnosis in 2014 with a “classic triad of diffuse, widespread whole body pain, daily fatigue, and non-restorative sleep.” The Veteran was not taking any medication specifically for her fibromyalgia but noted taking ibuprofen. She reported experiencing muscle cramps in her lower extremities and used “Icy Hot” or soaked in the bathtub. She had attacks a few times a month lasting two to three days and noted that weather changes with cold or rain increased flares. Accordingly, there is evidence of a current disability. The Veteran does not contend or offer evidence to support that fibromyalgia had its onset during service, but rather contends that it is secondary to the service-connected lumbar spine disability. Specifically, during the January 2021 Board hearing, the Veteran’s representative indicated that he spoke to the Veteran prior to the hearing and confirmed that it is her contention that her fibromyalgia is secondary to her back. The direct theory of entitlement it also not raised by the record. The Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. In June 2017, the Veteran was afforded a VA medical examination and opinions were provided on the Veteran’s claimed fibromyalgia. The June 2017 VA examiner opined that the Veteran’s fibromyalgia is less likely than not (less than 50 percent probability) due to or the result of the service-connected lumbar spine disability. The examiner provided the rationale that fibromyalgia and an orthopedic spinal condition each have clear and separate etiologies and diagnosis. The examiner added that fibromyalgia can exist without an orthopedic condition and that there is no correlation between fibromyalgia and the post laminectomy syndrome. The Board finds that this opinion is competent and probative regarding secondary service connection involving the service-connected lumbar spine disability. The examiner reviewed the evidence of record and provided a rationale for the conclusion. While the examiner did not specifically address “aggravation,” the Board finds that the June 2017 opinion is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the United States Court of Appeals for Veterans Claims found that the examiner’s opinion that it was “more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder” did not rule out the possibility that the veteran’s service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the June 2017 examiner opined that that fibromyalgia and an orthopedic spinal condition each have “clear and separate etiologies and diagnosis” and that there is “no correlation between fibromyalgia and the post laminectomy syndrome.” Because the examiner clearly opined that there was no relationship between the service-connected lumbar spine disability and fibromyalgia, the examiner’s statement, unlike that of the examiner in El-Amin, rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability. Thus, the Board finds that the examiner’s opinion addressed both causation and aggravation and is, therefore, probative regarding whether the service-connected disability caused or aggravated fibromyalgia. In addition, while the Veteran did not directly contend that service connection for fibromyalgia is warranted as secondary to the service-connected psychiatric disorder, the June 2017 examiner also opined that the Veteran’s fibromyalgia is less likely than not due to the in-service trauma which lead to the service-connected psychiatric disability. She provided the rationale that each disease has a clear and separate etiology and diagnosis and that fibromyalgia is not caused by a psychiatric disability. As explained above, this opinion is also distinguishable from the holding in El-Amin, as it rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability. To the extent that the Veteran and her representative have attempted to establish a nexus that the Veteran’s fibromyalgia is secondary to the service-connected lumbar spine disability, neither the Veteran nor her representative are medical professionals, and they are not competent to offer opinions as to the etiology of the Veteran’s fibromyalgia. A diagnosis of fibromyalgia requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s and representative’s opinions are nonprobative evidence. At the present time, there is no competent evidence to weigh against the June 2017 VA opinion. Therefore, given the reasons above, the Board finds that the most probative evidence of record are the opinions of the June 2017 VA examiner provided. The VA examination report and medical opinions provide competent and probative evidence that weigh against the Veteran’s claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided medical opinions supported by well-reasoned rationale. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claim for service connection for fibromyalgia, to include as secondary to service-connected disabilities. The benefit-of-the-doubt doctrine is not for application, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds that remand is warranted to fully assist the Veteran with the development of the remaining claims. For example, there are outstanding medical records that are relevant to the issues on appeal. Specifically, during the January 2021 virtual Board hearing, the Veteran testified that she was still receiving treatment for her back, specifically a chiropractor and that she was also seen at VA. No records from the Veteran’s private chiropractor are associated with the claims file and the most recent VA medical records are from September 2019. The Veteran also testified that she had two spinal nerve stimulator implant surgeries. She asserted that her second surgeon “sewed [her] up so tight” that her back was uncomfortable with the incision pulling on the nerves in her arms and back. The claims file includes records from the University of Maryland Medical System Hospital for the first surgery in November 2012 and second surgery in January 2013. Subsequent VA medical records reflect the Veteran’s complaints of pain associated with the spinal stimulator. The VA physician instructed that the Veteran contact the provider that originally placed the stimulator. A November 2013 VA medical record shows that the Veteran would follow-up with the private surgeon that placed her stimulator, which indicates that relevant private treatment records from the University of Maryland after the January 2013 surgery are outstanding. Moreover, in August 2014 VA medical records, the Veteran reported that she saw a private doctor once yearly for her back pain and November 2014 VA medical records reflect that she had a nerve conduction test performed by a private provider, Dr. Zammora in Martinsburg, West Virginia, and no records from these providers are associated with the claims file. As such, the Veteran should be provided an opportunity to identify any additional outstanding relevant private medical records on remand. An effort must be made to locate and associate any outstanding private medical records with the Veteran’s claims file and updated VA medical records should be obtained. 5. Entitlement to a disability rating in excess of 20 percent for post laminectomy syndrome, status post disk replacement and fusion, is remanded. 6. Entitlement to a disability rating in excess of 10 percent for right S1 (lower extremity) radiculopathy is remanded. 7. Entitlement to a disability rating in excess of 10 percent for neuralgia, left lower extremity, is remanded. The Veteran was last afforded a VA examination in June 2017 in order to evaluate the severity of her lumbar spine disability and associated lower extremity radiculopathy symptoms. During the January 2021 Board hearing, the Veteran testified that her low back disability had gotten worse since her last examination. The Veteran stated that she was willing to attend a new examination and would prefer for the examinations to be scheduled at the VA Medical Center in Martinsburg, West Virginia, because she lives closer to that location. Moreover, the Veteran reported that the associated radiculopathy of her lower extremities had worsened and was informed by undersigned VLJ that her lower extremities may be a part of the increased rating claim for the service-connected lumbar spine disability. Thus, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of her lumbar spine disability and associated bilateral lower extremity radiculopathy. 8. Entitlement to service connection for right upper extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, is remanded. 9. Entitlement to service connection for left upper extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, is remanded. The Veteran asserts that service connection for bilateral extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, is warranted because it is related to spinal nerve stimulator implants for the service-connected lumbar spine disability. Specifically, during the January 2021 Board hearing, the Veteran testified that the first implant was not properly secured and a huge incision in the middle of her back was required to remove it. She explained that the second surgeon sewed her up too tight, and that the incision would pull on her nerves in her arms and back. As noted above, following the second spinal nerve stimulator implant surgery in January 2013, VA medical records reflect the Veteran’s complaints of pain associated with the spinal stimulator. VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the Board finds that a VA examination is warranted on remand to confirm a current diagnosis of left and right upper extremity radiculopathy and/or carpal tunnel syndrome and determine etiology, if applicable. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private medical records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of the service-connected post laminectomy syndrome, status post disk replacement and fusion and associated bilateral lower extremity radiculopathy, and claimed bilateral upper extremity radiculopathy and fibromyalgia, to include but are not limited to records from the following medical professionals: • A chiropractor that the Veteran referenced during the January 2021 virtual Board hearing; • a private doctor that the Veteran reported she saw once yearly for her back pain referenced in VA medical records, including in August 2014; • Dr. Zammora in Martinsburg, West Virginia, who performed a nerve conduction test around November 2014; • University of Maryland Medical System Hospital in Baltimore, Maryland, for two spinal nerve stimulator implant surgeries in November 2012 in January 2013, particularly records since the second surgery in January 2013; and • any other private medical professional whose records would be relevant to the issues on appeal. Any negative response should be in writing and associated with the claims file. 2. Obtain all outstanding VA treatment records since September 2019 and associate them with the claims file. 3. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected post laminectomy syndrome, status post disk replacement and fusion (lumbar spine) and associated right S1 (lower extremity) radiculopathy and neuralgia, left lower extremity. If possible, the Veteran requests that the examination to be performed at the VAMC in Martinsburg, West Virginia. 4. Schedule the Veteran for a VA examination for her claimed left and right upper extremity radiculopathy, claimed as numbness and carpal tunnel syndrome, to determine the nature, extent, and etiology of the claimed disabilities. If possible, the Veteran requests that the examination to be performed at the VAMC in Martinsburg, West Virginia. A copy of the below facts should be provided to the VA examiner. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran is currently in receipt of service-connection for 1) unspecified trauma and stress disorder; 2) gastric ulcer; 3) post laminectomy syndrome, status post disk replacement and fusion; 4) tinnitus; 5) right S1 (lower extremity) radiculopathy; 6) neuralgia, left lower extremity; and 7) scars, residuals of back surgery. • The Veteran asserts that service connection for her bilateral extremity radiculopathy, also claimed as numbness and carpal tunnel syndrome, is warranted because it is related to or caused by spinal nerve stimulator implants for the service-connected lumbar spine disability. Specifically, during the January 2021 Board hearing, the Veteran testified that the first implant was not properly secured and a huge incision in the middle of her back was required to remove it. She explained that the second surgeon sewed her up too tight and that the incision would pull on her nerves in her arms and back. See VBMS entry with document type, “Hearing Transcript,” receipt date 01/08/2021, pages 12-15. See also VBMS entry with document type, “VA 21-4138 Statement In Support of Claim,” receipt date 01/22/2013. • The Veteran had a percutaneous epidural spinal cord stimulating lead trial in October 2012 and underwent surgery for a spinal cord stimulator implantation in November 2012 at University of Maryland Medical System Hospital (UMD). See VBMS entries (2) with document type, “Medical Treatment Record - Non-Government Facility,” receipt dates 12/06/2012, 01/22/2013. • December 2012 UMD medical records show the Veteran reported migration of her spinal cord stimulator lead. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 01/23/2013, pages 8-13, generally. • January 2013 UMD medical records show the Veteran underwent surgery for removal of the old malfunctioning percutaneous spinal cord stimulator and implantation of new leads. The Veteran reported that the leads were not correctly placed causing pain in her arms, neck, and hand. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 02/21/2013, pages 10-11, 17-23, generally. See also VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 06/26/2014. • November 2013 VA medical records show the Veteran complained of severe twitching to the upper extremities and described frequent shooting pains to the arms and hands. She stated that the pain was above the stimulator with burning in the arm and numbness in the fingers. The Veteran believed that the problems were from the stimulator insertion and reported that she did not have any of these new issues until the procedure. The Veteran was instructed to contact the provided that originally placed the stimulator. See VBMS entry with document type, “CAPRI,” receipt date 12/12/2014, with “#1” in the subject field, pages 288-300. • A December 2014 VA examination report for back (thoracolumbar spine) conditions shows clinical findings regarding the spine and lower extremities. See VBMS entry with document type, “VA Examination,” receipt date 12/02/2014. • A September 2015 examination report for back (thoracolumbar spine) conditions (contracted Disability Benefits Questionnaire (DBQ)) shows clinical findings regarding the spine and lower extremities. See VBMS entry with document type, “C&P Exam,” receipt date 09/01/2015. • Of record is the June 2017 VA examination report for back (thoracolumbar spine) conditions. See VBMS entry with document type, “C&P Exam,” with “#2” in the subject field, receipt date 06/23/2017. • The Veteran has been scheduled for a new VA examination for the service-connected lumbar spine disability. • Additional records may have been associated with the claims file since February 2021. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, and then answer the following questions: a) Does the Veteran have a currently diagnosed left and/or right upper extremity disability, to include radiculopathy, carpal tunnel syndrome, or functional impairment? b) As to each diagnosis of the left and/or right upper extremity or functional impairment, is it at least as likely as not (50 percent or greater likelihood) caused by or related to the service-connected post laminectomy syndrome, status post disk replacement and fusion (lumbar spine disability) to include treatment for the disability, e.g. spinal nerve stimulator implants (locations above)? c) If the answer to (b) is negative, as to each left and/or right upper extremity diagnosis or functional impairment, is it at least as likely as not (50 percent or greater likelihood) aggravated by the service-connected lumbar spine disability? This is a separate question from whether the disability is caused by the service-connected lumbar spine disability. d) If the examiner finds that the service-connected lumbar spine disability aggravates a left and/or right upper extremity diagnosis or functional impairment, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline of her left and/or right upper extremity diagnosis or functional impairment prior to aggravation. If the examiner is unable to establish a baseline for the left and/or right upper extremity diagnosis or functional impairment prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After all available evidence has been associated with the record, review the evidence and determine if further development is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.