Citation Nr: 21021956 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-41 109A DATE: April 14, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for myofascial pain is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for a stomach digestive condition is remanded. Entitlement to an initial disability rating for depressive disorder greater than 30 percent from February 29, 2012 to May 17, 2017, greater than 50 percent from May 17, 2017 to June 22, 2020, and greater than 70 percent from June 22, 2020, is remanded. Entitlement to a disability rating for lumbosacral strain greater than 20 percent from February 29, 2012 to June 22, 2020, and greater than 40 percent from June 22, 2020, is remanded. Entitlement to a disability rating greater than 10 percent for a left knee disorder is remanded. Entitlement to a disability rating greater than 10 percent for a right knee disorder is remanded. Entitlement to a disability rating greater than 10 percent for gastritis, ulcerative colitis, and GERD is remanded. FINDING OF FACT The Veteran’s GERD is proximately due to nonsteroidal antiinflammatory drugs (NSAIDs) used in treatment for his service-connected knee, ankle, wrist and spine disabilities. CONCLUSION OF LAW The criteria to establish service connection for GERD as secondary to the Veteran’s service-connected musculoskeletal disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1996 to December 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in September 2013 and January 2017. With regard to the issue of service connection for GERD, the only issue decided at this time, the Veteran’s appeal has been considered with respect to VA’s duties to notify and assist the Veteran, including the challenge to the competency of VA examiner’s raised by the Veteran’s attorney and discussed further below. However, given the favorable outcome here – a full grant of the service connection benefit sought – no further development regarding examiner qualifications or additional discussion of VA’s duties to notify and assist is necessary regarding the appeal seeking service connection for GERD. Service connection for GERD is granted. The August 2020 VA examination shows the Veteran has a current disability of GERD, and that this disability is at least as likely as not proximately due to medications used to treat the Veteran’s service-connected knee, ankle, wrist, and spine disabilities. On this basis, secondary service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. The Board acknowledges that the August 2020 supplemental statement of the case (SSOC) conceded these facts, but found that service connection for GERD need not be granted because GERD could not be rated in addition to the Veteran’s gastritis with ulcerative colitis for which service-connected disability compensation was previously established. The law is clear that for certain coexisting abdominal conditions including gastritis, ulcerative colitis, and hiatal hernia (by which GERD is typically rated as a closely analogous or similar disability), a single evaluation is to be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.113, 4.114. In other words, a Veteran may not receive separate disability evaluations for these specific coexisting abdominal conditions without violating the fundamental principle prohibiting the evaluation of the same manifestation of disability under different diagnoses, a practice known as pyramiding. See 38 C.F.R. § 4.14. However, although separate disability ratings may not be possible, this does not prohibit the grant of service connection for a disability for which the service connection criteria are otherwise met. The Board agrees that the Veteran’s GERD is not subject to additional compensation separate from his already service-connected gastritis with colitis; however, the criteria to establish service connection for GERD are met, and the disability should therefore be considered together with the Veteran’s service-connected gastritis and colitis as a single disability. The appeal seeking service connection for GERD is granted. 38 C.F.R. § 3.310. REASONS FOR REMAND Although the Board sincerely regrets the further delay, an additional remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claims so that every possible consideration is afforded. 1. Entitlement to service connection for myofascial pain is remanded. The Board cannot make a fully informed decision on the issue of service connection for myofascial pain, or myofascial pain syndrome, because the June 2020 VA opinion on this matter is incomplete. The examiner stated that lumbosacral strain, for which service connection is already in effect, is an “interchangeable diagnosis” with myofascial pain syndrome. VA opinion, June 2020. However, the Veteran’s VA treatment records show that his myofascial pain occurred not just in the lumbosacral, or low back area, but also in the Veteran’s upper back area with “muscle strain/myofascial strain of the bilateral rhomboids and right upper trapezius.” VA treatment, August 2016. No VA opinion has yet addressed this upper back area of myofascial pain as recorded in the Veteran’s VA treatment records. The June 2020 examiner also did not address the August 2016 VA treatment record stating that the Veteran’s chronic myofascial pain symptoms had a psychosocial component, as requested by the Board’s prior remand, when he rendered the opinion that the Veteran’s myofascial pain was not due to or aggravated beyond its natural progression by the Veteran’s service-connected disabilities, which include depression. An addendum opinion is needed to clarify these points. 2. Entitlement to service connection for fibromyalgia is remanded. The June 2020 VA opinion is also incomplete regarding fibromyalgia. The examiner stated that there was no evidence of any reports related to fibromyalgia in the service treatment records, and that the Veteran’s reports of symptoms began “at least 10 years after the service.” VA opinion, June 2020. However, fibromyalgia is defined as pain and stiffness in the muscles and joints that either is diffuse or has multiple trigger points. Dorland’s Illustrated Medical Dictionary 711 (31st ed. 2007). The Veteran’s service treatment records document joint and/or musculoskeletal pain in several instances between 1996 and 1999, although a specific diagnosis or report of “fibromyalgia” is not shown during service. A medical opinion is needed that considers the reports of joint and musculoskeletal pain during service. The June 2020 examiner also failed to render an opinion regarding whether the Veteran’s fibromyalgia was caused or aggravated by the Veteran’s other service-connected disabilities as requested in the Board’s prior remand. An addendum opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) 3. Entitlement to service connection for shin splints is remanded. 4. Entitlement to service connection for a stomach digestive condition is remanded. 5. Entitlement to an initial disability rating for depressive disorder greater than 30 percent from February 29, 2012 to May 17, 2017, greater than 50 percent from May 17, 2017 to June 22, 2020, and greater than 70 percent thereafter, is remanded. 6. Entitlement to a rating greater than 20 percent for lumbosacral strain is remanded. 7. Entitlement to a rating greater than 10 percent for a left knee disorder is remanded. 8. Entitlement to a rating greater than 10 percent for a right knee disorder is remanded. 9. Entitlement to a rating greater than 10 percent for gastritis with ulcerative colitis is remanded. Regarding each of the nine issues above, a challenge to the VA examiners’ competency is considered to have been raised by the Veteran’s attorney in correspondence received in February 2017, August 2017, and August 2020 in which the attorney requested copies of non-specific VA examiners’ curriculum vitae (CV). VA must assist the Veteran in attempting to obtain the requested information. See generally Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The matters are REMANDED for the following action: 1. Contact the Veteran’s attorney to request that he identify with specificity from which examiner(s) he seeks CV or professional qualification information. 2. Obtain and provide to the Veteran and his attorney, if available, a copy of the curriculum vitae, or any other requested and relevant information regarding the medical qualifications of the identified VA examiner(s). If any requested information is not obtainable, the Veteran and his attorney should be notified, and the reasons for this should be documented in the record. 3. Obtain an addendum opinion regarding the Veteran’s fibromyalgia. The examiner must review the claims file and then respond to the following questions. Is the Veteran’s fibromyalgia at least as likely as not related to his active service, including the various joint and musculoskeletal pains documented in the service treatment records? In providing the requested opinion, consider the Veteran’s description of his in-service injuries and joint pain symptoms as well as his post-service symptoms. Do the Veteran’s reports about his in-service pain symptoms align with how fibromyalgia is known to develop? For the purpose of this opinion, please assume that the Veteran’s reports are both credible and accurate. Is fibromyalgia at least as likely as not proximately due to any of the Veteran’s service-connected disabilities? Is fibromyalgia at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any of the Veteran’s service-connected disabilities? 4. Obtain an addendum opinion regarding the Veteran’s myofascial pain, including both the lower and upper back (bilateral rhomboids and right upper trapezius) areas, and any other identified areas with myofascial pain. The examiner must review the claims file. If a diagnosis of myofascial pain syndrome cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider the pain to be a “disability” for the purpose of providing the requested opinions. The June 2020 examiner identified that lumbosacral strain and myofascial pain syndrome are interchangeable diagnoses. Is it then also true that the myofascial pain of the bilateral rhomboids and right upper trapezius identified in August 2016 is synonymous or an interchangeable diagnosis with the already service-connected cervical strain, or are these conditions distinguishable from one another? Is the Veteran’s myofascial pain distinguishable from, or a component of his diagnosed fibromyalgia? In other words, are these the same manifestations of pain under different diagnoses? The examiner should also identify if the Veteran’s myofascial pain is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected disability, including the Veteran’s depression. The August 2016 VA treatment record indicating that the Veteran’s myofascial pain symptoms likely have a psychosocial component should be discussed in rendering the opinion on secondary service connection, as requested by the Board’s previous June 2019 remand. The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner. Full and thoroughly explained answers to each of the questions will prevent delays in adjudication and are very much appreciated. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.