Citation Nr: 21031088 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 12-14 284 DATE: May 20, 2021 REMANDED Entitlement to service connection for fibromyalgia is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1974 to September 1976 and had additional service in the National Guard from 1976 to 1985. The Veteran testified in support of this claim during a videoconference hearing in May 2018 before a Veterans Law Judge of the Board of Veterans' Appeals (Board/BVA). In October 2018, the Board determined there was new and material evidence concerning this claim and, consequently, reopened it. However, rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) for further development and consideration including especially to have the Veteran undergo a VA examination for a needed medical opinion concerning whether her fibromyalgia is related or attributable to her military service, particularly to a fall from the top of a rail car in 1975, which she cites as the source or cause of this disability. Because the Veterans Law Judge that presided over the Veteran's videoconference hearing is no longer employed at the Board, since having retired, the Veteran was informed that she could have another hearing before a different Veterans Law Judge who, in turn, would decide this appeal. Moreover, because of substantially increased waiting times owing to COVID-19, she also was told she could elect to have a "virtual" tele-conference hearing rather than a Travel Board hearing. See September 2020 and October 2020 letters, Report of Contact, and Report of General Information. She elected to have a virtual hearing, and it was scheduled for in November 9, 2020. However, in November 2020, a few days prior to when her virtual hearing was to occur, she withdrew her request for this additional hearing, though continued her appeal of this claim. See her e-mail dated November 3, 2020. Still more development of this claim is required, however, before deciding it on appeal. More specifically, although she had a VA examination in January 2020 as directed in the Board's prior remand of this claim, the resulting report does not provide sufficient medical information upon which the Board may make the necessary legal determination required to decide the appeal of this claim. As such, the Board is again remanding this claim to obtain the necessary additional information. Entitlement to service connection for fibromyalgia is again remanded. The Board cannot yet make a fully-informed decision concerning this claim of entitlement to service connection for fibromyalgia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the record contains medical evidence both for and against this Veteran's claim in regard to the first element required for service connection namely, concerning whether she has this claimed disability. The January 2020 examiner concluded that a diagnosis of fibromyalgia was not correct for this Veteran because fibromyalgia is a diagnosis of exclusion given when there are pain symtpoms present with no other etiology such as injury or degenerative process. He then points out that diagnostic imaging shows the Veteran has degenerative arthritis of her cervical and lumbar spine which, in this examiner's opinion, is the likely cause of her claimed pain symptoms. The Board finds this to be a competent and credible medical opinion, so ultimately probative concerning this initial issue, supported by an adequate medical rationale for the opinion given. However, the Veteran's VA treatment records also reflect a diagnosis, treatment, and history of fibromyalgia over many years. An essentially concurrent February 2020 VA physical medicine rehab note provides a contrasting opinion regarding fibromyalgia as a correct diagnosis in this case. This medical provider states, "[a] patient meets the diagnostic criteria for fibromyalgia if the WPI score is greater than or equal to 7 AND the SS score is greater than or equal to 5." This treatment note explains this Veteran had a Widespread Pain Index score (WPI) of 12 and a Symptom Severity (SS) score of 11, thus meeting the stated diagnostic criteria for fibromyalgia, even though this notation also confirms the Veteran has degenerative joint disease (i.e., degenerative arthritis) of her spine, so just as the January 2020 VA examiner concluded. This additional provider, however, makes no mention of a fibromyalgia diagnosis being inappropriate when a known degenerative process of the spine is present, so he does not indicate one diagnosis necessarily must be at the exclusion of the other. The Board cannot reconcile these medical opinions with differing outcomes as to the most fundamental element of whether the Veteran has this claimed condition of fibromyalgia (i.e., the required showing of current disability owing to this disease). In the event where reasonable doubt exists, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal status known as relative equipoise), VA must resolve the doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, here, to this end, the Board will resolve this reasonable doubt in the Veteran's favor as concerning whether she has fibromyalgia and, accordingly, accept that she does. Fibromyalgia is one of the diseases contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 that can be determined presumptively related to a Persian Gulf War Veteran's service. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.117, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). But here, notably, this Veteran served before the Persian Gulf War, so she is not entitled to the presumption her fibromyagia is the result of her service. Thus, medical opinion is still needed regarding whether her fibromyalgia is attributable to her service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As already alluded to, the Veteran had both active duty service in the Army and additional service after that in the National Guard. Therefore, some additional explanation is being provided to assist in determining when versus when not her service was qualifying for purposes of establishing her entitlement to VA disability compensation. Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty (AD) or active duty for training (ACDUTRA) or from injury though not also disease incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based at least partly on a period of ACDUTRA or INACDUTRA, there must be evidence that the Veteran became disabled as a result of a disease or an injury incurred or aggravated in the line of duty during that period of ACDUTRA or owing to an injury, though not also disease, incurred or aggravated during INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the Veteran would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see also Acciola v. Peake, 22 Vet. App. 320, 324 (2008). National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the Governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times . . . serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. Id. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain an addendum opinion as a supplement to the January 2020 VA examiner's opinion concerning whether it is as likely as not the Veteran's fibromyalgia (so conceding that she has it) was incurred during her active duty service in the Army from June 1974 to September 1976 or during any qualifying additional service in the National Guard from 1976 to 1985. Rational for the opinion is essentially, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. In responding, if possible, the examiner should try and reconcile the discrepant VA medical findings from the January 2020 VA examination and the February 25, 2020 VA treatment note regarding the propriety of a diagnosis of fibromyalgia. Since, however, the Veteran is entitled to the benefit of the doubt when there is probative evidence for versus against the claim concerning any material issue, so including insofar as whether she has fibromyalgia, the examiner should accept the Veteran has this required diagnosis since as likely as not she does. Thus, medical comment more so is needed concerning the likelihood this diagnosis is attributable to the Veteran's service. Keith W. Allen 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.