Citation Nr: 21029374 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-63 822 DATE: May 13, 2021 REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to a compensable rating for migraine headaches is remanded. Entitlement to a rating in excess of 10 percent for left wrist disability is remanded. Entitlement to a rating in excess of 20 percent for right shoulder disability is remanded. Entitlement to a compensable rating for period prior to June 24, 2016, and a rating in excess of 10 percent, thereafter, for a neck disability is remanded. Entitlement to a rating in excess of 10 percent for back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1985 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and June 2016 rating decisions issued by the Agency of Original Jurisdiction (AOJ). In March 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for fibromyalgia. Remand is needed to reconcile the conflicting medical opinions on whether the Veteran has a clinical diagnosis of fibromyalgia. The record shows a Fibromyalgia Disability Benefits Questionnaire (DBQ) completed by a non-treating physician dated December 2012 indicating a diagnosis of fibromyalgia. However, a June 2013 VA examiner found that a diagnosis was not support and stated that "in this examiner's opinion, the diagnosis of fibromyalgia only can be made by a routine follow up and exclusion of other diseases." See VA fibromyalgia examination dated June 2013. The Veteran submitted private medical records showing assessment for fibromyalgia in November 2013 and a private opinion from treating physician Dr. J.D. dated January 2014 indicating that the Veteran "probably had the diagnosis of fibromyalgia" during service. See records from St. Vincent's Primary Care and records from Jacksonville Hand Associates. The Veteran also submitted a Fibromyalgia DBQ completed by treating physician, Dr. A.P., dated June 2016 indicating that "fibromyalgia diagnosis is a clinical diagnosis so secondary causes have been ruled out." See Fibromyalgia DBQ dated June 2016. In contrast, a June 2016 VA examiner found that the veteran's "subjective/objective medical evidence does not meet the criteria set by the ACR [American College of Rheumatology] for the diagnosis of fibromyalgia." The examiner noted diagnosis of degenerative disc disease of cervical spine, degenerative disc disease of lumbar spine, right shoulder dislocation and carpal tunnel syndrome, but indicated that fibromyalgia was not found. The June 2016 VA examiner acknowledged that while "fibromyalgia" diagnosis was shown in the private medical records, the examiner remarked that "it is unknown what diagnostic criteria was used to establish the diagnosis" and that it was unknown "if the clinician who established the diagnosis had access to the veteran's completed medical records." The Board observes there is conflicting medical opinions of record. For instance, the June 2013 VA examiner states that a "diagnosis of fibromyalgia only can be made by a routine follow up" but where a diagnosis was established by the Veteran's treating physician Dr. A.P. in November 2013 and June 2016, this was disregarded by the June 2016 VA examiner, who stated that the criteria set by ACR was not met. Thus, an opinion is needed to reconcile the inconsistent medical evidence. Additionally, one that also takes into consideration the Veteran's March 2021 hearing testimony and reported history. Based on the foregoing, remand is warranted. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to a compensable rating for migraine headaches. At her hearing, the Veteran stated that her migraine headaches rated at 0 percent needs to be re-evaluated because she is now "starting to get prostrating attacks" which she was not at first. See March 2021 Hearing Transcript at 3. The Veteran was last afforded a VA headaches examination in June 2016. Given the reports of worsening symptoms, reexamination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a veteran was entitled to a new examination after a two year period between the last VA examination and the veteran's contention that his disability had increased in severity). 3. Entitlement to a rating in excess of 10 percent for left wrist disability. 4. Entitlement to a rating in excess of 20 percent for right shoulder disability. 5. Entitlement to a compensable rating for period prior to June 24, 2016, and a rating in excess of 10 percent, thereafter, for a neck disability. 6. Entitlement to a rating in excess of 10 percent for back disability. Similar testimony was presented for her service-connected left wrist, right shoulder, neck and back disabilities. Specifically, the Veteran described her worsening symptoms and stated she is "constantly in pain". See Hearing Transcript at 8. The Veteran was last afforded VA examination in June 2016 for carpal tunnel syndrome, shoulder, neck and back, which do not accurately reflect the current severity and manifestations of her service-connected disabilities. Snuffer, 10 Vet. App. at 403. Since the Veteran's last examinations, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), issued a decision finding that VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2018). Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Critically, this type of joint testing was not accomplished during the Veteran's June 2016 VA examinations. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary. Additionally, the Board notes that the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) emphasized additional requirements that must be met for examinations to be adequate. The Court stated that examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. Given the holdings above and the Veteran's assertions of worsening symptoms, the Veteran should be afforded reexaminations which addresses matters in compliance with current case law. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed fibromyalgia. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide a medical opinion on the following: a) Identify whether the Veteran has a clinical diagnosed disability of fibromyalgia. b) For such diagnosed disability, is it at least as likely as not (a 50 percent or greater probability) that the claimed fibromyalgia began during active service or is directly related to the Veteran's time on active duty? c) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's fibromyalgia manifested within one year of her service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical evidence including Fibromyalgia DBQ completed by non-treating physician dated December 2012; VA examination dated June 2013; private medical records showing assessment for fibromyalgia in November 2013; private opinion from treating physician Dr. J.D. dated January 2014; Fibromyalgia DBQ completed by treating physician Dr. A.P. dated June 2016; and VA examination dated June 2016. A complete rationale for all opinions is requested. 2. Schedule the Veteran for a VA examination to determine the current severity of service-connected migraine headaches. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination to determine the current severity of service-connected left wrist and right shoulder disabilities. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. The examiner should address ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups The examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the Veteran's flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 4. Schedule the Veteran for a VA examination to determine the current severity of service-connected neck and back disabilities. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. The examiner should address ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups The examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the Veteran's flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 5. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and her representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and her representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.