Citation Nr: 21021745 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-25 912 DATE: April 13, 2021 REMANDED Entitlement to service connection for fluoroquinolone toxicity, to include as secondary to service-connected disabilities or under the provisions of 38 U.S.C. § 1151, is remanded. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities or due to claimed fluoroquinolone toxicity, is remanded. Entitlement to service connection for drug and alcohol dependency, secondary to service-connected disabilities, is remanded. Entitlement to service connection for cirrhosis of the liver, to include as due to drug and alcohol dependency, is remanded. Entitlement to service connection for hepatitis C, to include as due to drug and alcohol dependency, is remanded. Entitlement to an initial rating in excess of 10 percent for a low back disability, as of October 18, 2019, is remanded. Entitlement to an initial rating in excess of 20 percent for a low back disability, from December 1, 2016, to October 17, 2019, is remanded. Entitlement to an initial rating in excess of 10 percent for a low back disability, prior to August 11, 2016, is remanded. Entitlement to an initial rating in excess of 0 percent for a residual scar, related to lumbosacral spine surgery, is remanded. REASONS FOR REMAND During the pendency of the appeal, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a separate 0 percent rating for a low back scar, related to a recent lumbosacral spine surgery. Because the Veteran's scar is an additional symptom of the Veteran's low back disability, a claim for a higher initial rating for the scar is considered part of the claim for a higher initial rating for the low back disability. Therefore, the claim for a higher initial rating for the scar is on appeal before the Board. 1. Entitlement to service connection for fluoroquinolone toxicity, to include as secondary to service-connected disabilities or under the provisions of 38 U.S.C. § 1151, is remanded. In July 2018, the Board remanded the claim for service connection or benefits for fluoroquinolone toxicity to schedule a VA examination to determine the etiology of the claimed disability. In the remand request, the Board asked the examiner who conducted the examination to provide opinions in accordance with 38 U.S.C. § 1151. The Board asked the examiner to opine whether the Veteran had additional disability due to VA treatment. In an October 2019 VA examination report, a VA examiner offered an opinion as to whether the disability was at least as likely as not related to service. A remand is necessary to schedule an additional examination. 2. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities or due to claimed fluoroquinolone toxicity, is remanded. In July 2018, the Board remanded the claim for service connection for fibromyalgia to schedule a VA medical examination to determine the etiology of the claimed disability. In the remand request, the Board asked the examiner who conducted the examination to provide opinions regarding whether fibromyalgia was either caused or aggravated beyond the natural progression by a service-connected disability or disabilities, to include service-connected posttraumatic stress disorder (PTSD). In a June 2020 VA medical examination report, written in attempted compliance with the remand request, a VA examiner, having examined the Veteran, opined that fibromyalgia was not at least as likely as not related to service or any incident of service. In explaining this opinion, the examiner stated “I believe the fibromyalgia is greater than [fifty percent] likely as a result of his [service-connected] PTSD,” because symptoms of PTSD and fibromyalgia intertwine together, and it would be difficult to determine which is the cause of each symptom. However, in the same examination report, the examiner also stated that the Veteran's fibromyalgia was not at least as likely as not caused by any service-connected disability, because the fibromyalgia was not related medically to any service-connected disability, the medical literature did not support any such relationship, and a nexus had not been established. In a final opinion, the examiner stated that the Veteran’s fibromyalgia was at least as likely as not aggravated beyond the natural progression by PTSD. When asked to provide a rationale for that opinion, the examiner stated that the Veteran “now has PTSD that he did not prior to service.” The Board notes that the examiner’s opinions contradict each other, and the rationale provided for each opinion is vague. A remand is necessary for a clarification opinion. 3. Entitlement to service connection for drug and alcohol dependency, secondary to service-connected disabilities, is remanded. 4. Entitlement to service connection for cirrhosis of the liver, to include as due to drug and alcohol dependency, is remanded. 5. Entitlement to service connection for hepatitis C, to include as due to drug and alcohol dependency, is remanded. 6. Entitlement to an initial rating in excess of 10 percent for a low back disability, as of October 18, 2019, is remanded. 7. Entitlement to an initial rating in excess of 20 percent for a low back disability, from December 1, 2016, to October 17, 2019, is remanded. 8. Entitlement to an initial rating in excess of 10 percent for a low back disability, prior to August 11, 2016, is remanded. 9. Entitlement to an initial rating in excess of 0 percent (noncompensable) for a residual scar, related to lumbosacral spine surgery, is remanded. Regarding all issues, the VA treatment records currently in evidence contain a notation indicating that a VA employee scanned medical records into a VA records imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated December 17, 2019; May 2, 2019; April 29, 2019; August 16, 2018; August 11, 2016; January 23, 2015; October 29, 2014; October 24, 2014; October 14, 2014; July 7, 2014; May 22, 2012; January 31, 2011; June 17, 2010; October 30, 2009; September 19, 2007; July 24, 2007; January 24, 2007; April 25, 2006; and April 5, 2004. 2. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined him in conjunction with this claim, regarding the etiology of the fibromyalgia. The examiner must review the claims file and should note that review in the report. The examiner should particularly note that the bases for opinions provided in the June 2020 VA medical examination report were either contradictory (indicating that PTSD caused fibromyalgia, but then indicating that the two disabilities were unrelated) or vague (stating that PTSD aggravated fibromyalgia solely because the Veteran now had PTSD that he did not have prior to service). The examiner should provide a clinical specific basis for each opinion. Therefore, after a review of the file and an examination, the examiner should offer the following opinions: (a.) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that fibromyalgia related to service or any event, injury, or disease during service. (c.) Opine whether it at least as likely as not (50 percent or greater probability) that fibromyalgia is proximately due to a service-connected disability or disabilities, to include a psychiatric disability (PTSD); residuals of a prostatectomy; erectile dysfunction; sciatica of the lower extremities; a low back disability; and a low back scar. The examiner should specifically discuss the rationale for the opinion. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that fibromyalgia has been aggravated (increased beyond the natural progression of the disorder) by a service-connected disability or disabilities, to include a psychiatric disability (PTSD); residuals of a prostatectomy; erectile dysfunction; sciatica of the lower extremities; a low back disability; and a low back scar. The examiner should specifically discuss the rationale for the opinion. 3. Schedule the Veteran for an examination by a medical doctor who has not previously examined the Veteran in conjunction with this claim to determine the nature and etiology of a claimed fluoroquinolone toxicity disability. The examiner should review all records regarding treatment for a prostate disability. The examiner should also interview the Veteran. Having reviewed the record, to include the Veteran's lay statements, the examiner should offer the following opinions: (a.) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that a fluoroquinolone toxicity disability is proximately due to a service-connected disability or disabilities, to include a psychiatric disability (PTSD); residuals of a prostatectomy; erectile dysfunction; sciatica of the lower extremities; a low back disability; and a low back scar. The examiner should specifically discuss the rationale of the opinion. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that a fluoroquinolone toxicity disability has been aggravated (increased in severity beyond its natural progression of the disorder) by a service-connected disability or disabilities, to include a psychiatric disability (PTSD); residuals of a prostatectomy; erectile dysfunction; sciatica of the lower extremities; a low back disability; and a low back scar. The examiner should specifically discuss the rationale of the opinion. (d.) Opine whether the Veteran has additional disability due to VA treatment for a prostate disability, to include the onset of a fluoroquinolone toxicity disability due to medication used to treat the prostate? (e.) If the Veteran has additional disability due to VA treatment, for each additional disability so identified, opine whether it is at least as likely as not (50 percent or greater probability) that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination. The examiner should discuss whether VA exercised the degree of care that would be expected of a reasonable health care provider. (f.) If the Veteran has additional disability due to VA treatment, opine whether it is at least as likely as not (50 percent or great probability) that any additional disability due to an event that was not reasonably foreseeable. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.