Citation Nr: 21022043 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-20 289 DATE: April 14, 2021 REMANDED Entitlement to service connection for disability manifested by fatigue (to include chronic fatigue syndrome), to include as secondary to service-connected disability, is remanded. Entitlement to service connection for disability manifested by joint pain, to include fibromyalgia, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to March 1998, which includes service in Southwest Asia. These matters initially came before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision. In February 2019, the Board denied claims of service connection for chronic fatigue syndrome and fibromyalgia. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court set aside the Board’s February 2019 decision, in part, and remanded to the Board the issues of entitlement to service connection for chronic fatigue syndrome and fibromyalgia for readjudication in compliance with directives specified in an October 2019 Joint Motion filed by counsel for the Veteran and VA. In April 2020, the Board remanded these matters for further development. As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions, to encompass all disorders that are reasonably raised by the record, an in light of evidence that the Veteran’s claimed fatigue may be associated with service-connected disabilities, the Board has re-characterized the claims of service connection for chronic fatigue syndrome and fibromyalgia as claims of service connection for disability manifested by fatigue (to include chronic fatigue syndrome), to include as secondary to service-connected disability, and disability manifested by joint pain (to include fibromyalgia). Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Entitlement to service connection for disability manifested by fatigue (to include chronic fatigue syndrome) and disability manifested by joint pain (to include fibromyalgia) are remanded. In the April 2020 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain medical opinions as to the nature of the Veteran’s claimed disabilities and whether any such disabilities are related to service. If it was determined by the appropriate examiner that an examination was necessary, an in-person examination was to be scheduled. A review of the claim file reveals that in-person VA fibromyalgia and chronic fatigue syndrome examinations were scheduled following the Board’s remand, but that the examinations were apparently “cancelled at Veteran’s request.” It does not appear that any VA medical professional was given the opportunity to review the Veteran’s claims file to determine if an in-person examination was necessary and no further efforts were made to obtain appropriate medical opinions, as requested by the Board. Therefore, another remand of the issues of entitlement to service connection for disability manifested by fatigue and disability manifested by joint pain is required for compliance with the Board’s April 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Charleston Vista electronic records system (dated to December 2020) and the Columbia VA Health Care System (dated to March 2006). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for fatigue (to include chronic fatigue syndrome) and joint pain (to include fibromyalgia), to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for fatigue (to include chronic fatigue syndrome) and joint pain (to include fibromyalgia) from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Charleston Vista electronic records system for the period since December 2020; the Columbia VA Health Care System for the period since March 2006; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature of the Veteran’s claimed disability manifested by fatigue and whether any such disability is related to service or service-connected disability. The clinician must provide an opinion as to whether any fatigue experienced by the Veteran since approximately September 2010 at least as likely as not is a symptom of an already service-connected disability (including, but not limited to, sleep apnea, migraines, and posttraumatic stress disorder (PTSD) with major depressive disorder). If any fatigue experienced by the Veteran since approximately September 2010 is not a symptom of an already service-connected disability, the clinician should opine whether the fatigue is a manifestation of an identifiable disability (including, but not limited to, chronic fatigue syndrome). If any fatigue is a manifestation of an identifiable disability, the clinician must identify the disability and opine whether the disability at least as likely as not (1) began during active service; (2) is related to an in-service injury or disease; (3) is caused by any service-connected disability(ies); OR (4) is aggravated by any service-connected disability(ies). If any current fatigue is not a manifestation of an identifiable disability, the clinician must opine whether the symptom at least as likely as not represents an objective indication of chronic disability resulting from (1) an undiagnosed illness related to service in Southwest Asia; (2) a medically unexplained chronic multi-symptom illness which is defined by a cluster of signs or symptoms; (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; OR (4) a disease with a clear and specific etiology . If so, the clinician should also describe the extent to which the illness has manifested. The clinician must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature of the Veteran’s claimed disability manifested by joint pain and whether any such disability is related to service. The clinician must provide an opinion as to whether any joint pain experienced by the Veteran since approximately September 2010 at least as likely as not is a symptom of an already service-connected disability. If any joint pain experienced by the Veteran since approximately September 2010 is not a symptom of an already service-connected disability, the clinician should opine whether the joint pain is a manifestation of an identifiable disability (including, but not limited to, fibromyalgia). If any joint pain is a manifestation of an identifiable disability, the clinician must identify the disability and opine whether the disability at least as likely as not (1) began during active service; (2) manifested within one year after separation from active service (in the case of any currently diagnosed arthritis); OR (3) is related to an in-service injury or disease. If any current joint pain is not a manifestation of an identifiable disability, the clinician must opine whether the symptom at least as likely as not represents an objective indication of chronic disability resulting from (1) an undiagnosed illness related to service in Southwest Asia; (2) a medically unexplained chronic multi-symptom illness which is defined by a cluster of signs or symptoms; (3) a diagnosable chronic multi-symptom illness with a partially explained etiology; OR (4) a disease with a clear and specific etiology. If so, the clinician should also describe the extent to which the illness has manifested. The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.