Citation Nr: 21041518 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-06 156 DATE: July 9, 2021 REMANDED Service connection for a back disability is remanded. Service connection for a neck disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for a left shoulder disability is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from September 1978 to September 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) made in March 2016 and September 2016. This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in April 2021, and a transcript of the hearing is of record. The Board notes that periodically throughout the period on appeal the Veteran's claims for service connection for a back and neck disability have been characterized as claims to reopen a previously denied claims for service connection for a back and neck disability based on new and material evidence. The Veteran was originally denied service connection for a back and a neck disability in March 2016, and, in September 2016, the RO found that new and material evidence had not been submitted to reopen the previously denied claims. Nevertheless, the notice of disagreement (NOD) commencing the appeal was received on December 2016 less than one year after the Veteran was notified of the March 2016 rating decision, and the December 2016 NOD explicitly identifies the March 2016 rating decision as being on appeal. Therefore, the March 2016 rating decision never became final, and the Board has accordingly recharacterized the back and neck claims as service connection claims; as opposed to new and material evidence claims. The Board notes that the Veteran also filed a NOD in January 2018 challenging the denial of service connection for a bilateral hip disability. A statement of the case (SOC) responsive to the appeal was issued in August 2018. The record is silent for a timely substantive appeal perfecting this matter to the Board. Therefore, the Board shall not address this matter any further. 1. Service connection for a back disability is remanded. 2. Service connection for a neck disability is remanded. At issue is whether the Veteran is entitled to service connection for a back disability or a neck disability. The Veteran's treatment records indicate that the Veteran has been diagnosed with and is being treated for chronic back and neck pain. Pain can be considered a disability in and of itself if it impairs the Veteran's ability to make a living. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, unexplained pain can be indicative of a claim for fibromyalgia. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). The Veteran testified at a personal hearing before the Board in August 2021 that he strained his neck and back while participating in grueling physical activity during his period of service. See Transcript. The Veteran is competent to describe his experiences in the armed services. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, record contains: evidence of a current disability, evidence of an in-service incurrence, and a suggestion that the two might be related; and these matters must be remanded in order to provide the Veteran with a VA examination discussing the nature and etiology of the Veteran's claimed back and neck disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service connection for a right shoulder disability is remanded. 4. Service connection for a left shoulder disability is remanded. 5. Service connection for a right knee disability is remanded. 6. Service connection for a left knee disability is remanded. At issue is whether the Veteran is entitled to service connection for a bilateral shoulder disability and a bilateral knee disability. As discussed above, the Veteran's neck and back claims are being remanded in part for an examination to determine whether or not they could be explained by a diagnosis of fibromyalgia. Depending on the results of the examination, this may or may not have an impact on the Veteran's claims shoulder and knee claims. Therefore, the Veteran's shoulder and knee claims are inextricably intertwined with the back and neck claims, and the shoulder and knee claims must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Arrange to provide a VA examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran has a back disability? Why or why not? If so, when the Veteran first begin to manifest it, and why? (b.) Is it at least as likely as not (50 percent or more) that the Veteran has a neck disability? Why or why not? If so, when the Veteran first begin to manifest it, and why? (c.) Is it at least as likely as not (50 percent or more) that the Veteran's back pain results in an impairment of the Veteran's earning capacity? Why or why not? If so, when the Veteran first begin to manifest it, and why? (d.) Is it at least as likely as not (50 percent or more) that the Veteran's neck pain results in an impairment of the Veteran's earning capacity? Why or why not? If so, when the Veteran first begin to manifest it, and why? (e.) Is it at least as likely as not (50 percent or more) that the Veteran has a diagnosis of fibromyalgia? Why or why not? If so, then please explain which of the following joints the Veteran's fibromyalgia impacts and explain why it does or does not impact them: back, neck, right shoulder, left shoulder, right knee, left knee. If so, when the Veteran first begin to manifest it, and why? (f.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a back disability (to include a current diagnosis of a back disability or back pain, without or without an underlying diagnosis, that is sufficiently severe to cause an impairment in the Veteran's earning capacity)? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a neck disability (to include a current diagnosis of a neck disability or neck pain, with or without an underlying diagnosis, that is sufficiently severe to cause an impairment in the Veteran's earning capacity)? Why or why not? (h.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and fibromyalgia? Why or why not? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.