Citation Nr: 21042213 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-50 247 DATE: July 12, 2021 ORDER Service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for testicular pain, to include epididymitis, is remanded. Entitlement to service connection for a disability manifested by diarrhea, to include irritable bowel syndrome, is remanded. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder and opioid use disorder, severe, in early remission, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations from December 2007 to June 2008. 2. The Veteran has been diagnosed with fibromyalgia by competent medical authority; the condition is presumed to be associated with his active service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for an award of service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317, 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 2004 to May 2005, March 2006 to May 2006, May 2006 to September 2006, June 2007 to August 2007, and October 2007 to July 2008. He also had service in the Air National Guard, to include a period of active duty for training from March 2003 to July 2003. He had service in the Southwest Asia theater of operations from December 2007 to June 2008. See 38 C.F.R. §§ 3.2(i), 3.317(e). These matters come to the Board of Veteran's Appeals (Board) on appeal from April 2017 and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Neither of those decisions explicitly addressed the issue of entitlement to a TDIU. However, the Veteran has asserted that he is unable to work due, in part, to his anxiety disorder. Accordingly, the Board finds that the matter of his entitlement to a TDIU is part and parcel of the appeal for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for fibromyalgia Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a chronic disability manifested by certain signs or symptoms that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). As indicated above, the Veteran's service records reflect he had service in the Southwest Asia theater of operations (specifically, Saudi Arabia) from December 2007 to June 2008. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained, chronic multi-symptom illness that is defined by a cluster of signs or symptoms; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. A medically unexplained, chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). The term medically unexplained, chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained, chronic multi-symptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs and symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). In reviewing the Veteran's claims, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the RO denied service connection for fibromyalgia, in pertinent part, because an April 2017 VA examiner found that the Veteran did not have a confirmed diagnosis of fibromyalgia. However, records from a private neurologist, Dr. B, reflect multiple findings of such in records dated in 2015 and 2016. For example, in an October 2015 statement, Dr. B noted that the Veteran was under his care for fibromyalgia. Other records from April 2016 note that the Veteran's complaints of diffuse pain and muscle spasms with brain fog were attributed to fibromyalgia. The Board notes that the April 2017 VA examiner indicated that Dr B's records did not include adequate testing for a diagnosis of fibromyalgia, to include with respect to documentation of pressure points; and that testing conducted as part of the VA examination did not support a finding of fibromyalgia. However, nothing in the record causes the Board to doubt Dr. B's qualifications to provide a competent diagnosis. Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, when the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Board further notes that while the VA examiner found there was no confirmed diagnosis of fibromyalgia, the examiner did identify the following signs and symptoms of such: widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, paresthesias, and headache. It was noted that these symptoms were constant or nearly constant. Moreover, both the VA examination report and the records from Dr. B reflect that the Veteran took medication for treatment of his purported fibromyalgia symptoms. As such, the record appears to reflect that the condition would warrant at least a minimum compensable rating under the pertinent rating criteria, found at 38 C.F.R. § 4.71a, Diagnostic Code 5025. In light of the foregoing, the Board is satisfied that the requirements for an award of service connection for fibromyalgia pursuant to the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND Initially, the Board notes the Veteran testified at the March 2021 hearing that he continued to receive ongoing treatment through VA for the disabilities that are the subject of this appeal. Among other things, he indicated that he had received treatment for his service-connected anxiety disorder a couple of weeks prior to the hearing. See Transcript pp. 4-5, 18-19. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA has a duty to assist a claimant in obtaining sufficiently identified VA medical records, or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In light of the scope of VA's obligations, a remand is required so that efforts can be made to obtain the additional VA medical records referenced by the Veteran at his March 2021 hearing. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for testicular pain, to include epididymitis, is remanded. The Board observes that the Veteran's spine was clinically evaluated as normal at the time of a July 2002 National Guard enlistment examination. His external genitalia were found to be abnormal due to varicocele. However, it was indicated that the condition was asymptomatic, and there were no findings of epididymitis or testicular pain at that time. There was also no indication of such on a concurrent Report of Medical History. Further, the Veteran checked a box to reflect that he was not experiencing recurrent back pain. Claims for both disabilities have been denied on the basis that they were pre-existing conditions that were not aggravated by service. In pertinent part, May and June 2017 VA examination reports included opinions to the effect that both conditions clearly and unmistakably pre-existed service, and that it was less likely than not that they worsened beyond natural progression during service. In this regard, the Board notes that to rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). The May and June 2017 VA examiner's opinions are not responsive to that legal standard. As such, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board also notes additional records development is required regarding the lumbar spine claim. In pertinent part, the May 2017 examiner's finding of a pre-existing disability was based, at least in part, on medical records that referenced a history of three compression fractures in the back and a history of back pain since high school. However, no actual records from the Veteran's time in high school are of record. The Veteran indicated at the March 2021 hearing that he had been treated by a Dr. C for his back while in high school. See Transcript pp. 4, 20-21. Although the Veteran noted that that was a long time ago, no attempt appears to have been made to obtain records of treatment from that clinician. Further development in that regard is therefore warranted. Further, the Veteran has indicated he injured his back in a July 2009 motor vehicle accident, and that a line of duty determination was completed in connection with the accident. See, e.g., Transcript p. 3. Although there are references to a July 2009 motor vehicle accident in the medical records, the Board is unable to locate a corresponding line of duty determination. On remand, action should be taken to determine if there are any additional service personnel records available for the Veteran, particularly in regard to the purported line of duty determination. 3. Entitlement to service connection for a disability manifested by diarrhea, to include irritable bowel syndrome, is remanded. The Veteran has essentially contended that he had recurrent gastrointestinal problems, particularly diarrhea, while on active duty. The RO denied his claim, in pertinent part, because the April 2017 VA examiner found that the Veteran did not have a confirmed diagnosis of irritable bowel syndrome, which is recognized as being a functional gastrointestinal disorder for purposes of 38 C.F.R. § 3.317. However, the examiner did find that the Veteran had alternating diarrhea and constipation, bloating, and nausea. As to those symptoms, the examiner did not expressly address whether they were otherwise related to service, to include on the basis of an undiagnosed illness or a MUCMI. The Board finds this to be of particular significance as a post-deployment assessment dated in May 2008 indicates that he did have diarrhea and vomiting during his deployment to the Southwest Asia theater of operations. Under the circumstances, the April 2017 VA examination report is inadequate for purposes of resolving the appeal. The Board further notes that the Veteran contended at the March 2021 hearing that his diarrhea was secondary to his service-connected anxiety disorder. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of the non-service-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability, any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase, regardless of its permanence." No medical opinion is of record which explicitly addresses these contentions. In light of the foregoing, a new VA examination is warranted. See Barr and Colvin, supra. 4. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder is remanded. The Veteran was last afforded a VA examination for purposes of evaluating the severity of his service-connected anxiety disorder in March 2017. Although he testified at the March 2021 hearing that he felt the disability was about the same as it was at the time of the March 2017 examination, he also reported symptoms that suggest a possible increase in severity since that examination. For example, at the hearing he reported frequent panic attacks (See Transcript pp. 13-14), while the March 2017 VA examination report noted he had not had a panic attack in over a year. Under the circumstances, an updated examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Allday v. Brown, 7 Vet. App. 517, 526 (1995). 5. Entitlement to a TDIU is remanded. Resolution of the remanded claims may impact the analysis of whether the Veteran is entitled to a TDIU. Accordingly, the issues are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on another issue). As such, the Board will remand the TDIU issue as well. The Board notes that as the TDIU issue was not explicitly adjudicated below, no specific development has been undertaken in that regard, to include with respect to soliciting a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran. That form requests information regarding the Veteran's occupational and educational history, which is necessary to a proper assessment of TDIU. Further, as he indicated at the March 2021 hearing that he had not worked due to his service-connected anxiety disorder, the information requested on the form could bear on his increased rating claim as well. Consequently, and as a remand is otherwise required in this case, the Board finds that he should be asked to submit a VA Form 21-8940 or its equivalent. If he does not wish to pursue a claim of TDIU, he should be asked to state that in writing. These matters are REMANDED for the following action: 1. Ensure that all of the Veteran's available service personnel records have been obtained, to include all such records pertaining to his service in the Air National Guard. In pertinent part, attempt to obtain a copy of any line of duty determination that was prepared in connection with a July 2009 motor vehicle accident. The action taken should be documented in the claims file. 2. Ask the Veteran to complete and return a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). If he does not wish to pursue a claim for a TDIU, he should be asked to state that in writing. 3. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. He should be specifically asked to provide a release for records of treatment from Dr. C, who he identified at the March 2021 Board hearing as having provided treatment for his back during high school. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 4. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159, to include the VA medical treatment referenced by the Veteran at his March 2021 Board hearing. The evidence obtained, if any, should be associated with the record. 5. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for VA examinations of his back and the male reproductive system. The examiner(s) should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should prepare a report addressing each of the following questions: a. Is it clear and unmistakable (i.e., manifest, obvious, or undebatable) that a back disability existed prior to the Veteran's entry into service? b. If it is clear and unmistakable that a back disability existed prior to the Veteran's entry into service, is it also clear and unmistakable that the disability did not increase in severity during service beyond the natural progress of the condition? c. Is it clear and unmistakable that the varicocele noted prior to service did not increase in severity during service beyond the natural progress of the condition? d. Is it at least as likely as not (i.e., is it 50 percent or more probable) that epididymitis became superimposed on the pre-existing varicocele during service? e. Is it at least as likely as not that the Veteran has a current back disability and/or epididymitis that had its onset in or is otherwise related to service? In considering the foregoing questions, the examiner must take into account the Veteran's report that he developed recurrent back and testicular pain during service. A rationale for all medical opinions expressed must be provided. 6. Also arrange to have the Veteran scheduled for an examination relative to his complaints of diarrhea. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether the signs and symptoms associated with Veteran's gastrointestinal system are most consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. The examiner must indicate whether the Veteran has irritable bowel syndrome or any other functional gastrointestinal disorder for purposes of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. If after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran's disability pattern with respect to the signs and symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such illness or disability is related to active service, to include environmental exposures experienced by the Veteran during service in Southwest Asia and the report of diarrhea and vomiting on the May 2018 post-deployment assessment. The examiner should also express an opinion as to whether it is at least as likely as not that the Veteran has a disability manifested by diarrhea that was (a) caused or (b) aggravated by his service-connected generalized anxiety disorder. A complete rationale for all opinions expressed should be provided. 7. Arrange, further, to have the Veteran scheduled for a VA examination for purposes of assessing the severity of his service-connected anxiety disorder. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.