Citation Nr: 21042528 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-28 527 DATE: July 13, 2021 ORDER Service connection for occipital neuralgia is granted. REMANDED Service connection for fibromyalgia is remanded. FINDING OF FACT The Veteran's occipital neuralgia is related to her active duty service in the U.S. Air Force. CONCLUSION OF LAW The criteria for service connection for occipital neuralgia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2011 to September 2013, December 2013 to March 2014, May 2014 to September 2014, and October 2014 to March 2015 in the United States Air Force, with additional service in the Air Force Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. In April 2020, the Board denied the claim for fibromyalgia, and remanded the claim for occipital neuralgia, as well as a claim for white matter brain disease, for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court vacated the April 2020 Board decision on the claim for service connection for fibromyalgia, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In a March 2021 rating decision, the VA Regional Office granted service connection for white matter brain disease. As such, this claim is no longer in appellate status and will not be addressed below. Service connection for occipital neuralgia is granted. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a 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). The Veteran has current occipital neuralgia, documented, for example, on VA examination in February 2021. She reports that she first began experiencing symptoms during military service. A review of the record shows documentation of occipital neuralgia in treatment records dated from within her period of active duty from May 2014 to September 2014, as well as in her period of active duty from October 2014 to March 2015. See, e.g., May 2014, June 2014, January 2015, March 2015 records. On VA examination in February 2021, the examiner opined that the Veteran's occipital neuralgia was at least as likely as not related to military service. Her symptoms arose concurrently with her headache disability during military service, and were not present prior to that time. Additionally, there has been a chronicity of symptoms since military discharge. As such, the examiner found that a nexus to service was established. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for occipital neuritis is warranted. The onset of the disability during active duty is clearly documented and the opinion of the February 2021 VA examiner is fully adequate for adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner based her findings on a review of pertinent records in the claims file, including diagnostic test results and the service treatment records. The opinion of the February 2021 VA examiner constitutes the entirety of the medical opinion evidence on the matter of direct service connection; there is no evidence to the contrary. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, service connection is warranted. As a matter of clarification, the Board notes that the VA Regional Office continued the denial of the claim in a February 2021 Supplemental Statement of the Case due to a finding that an award of service connection would violate the rule against pyramiding as the Veteran is already service-connected for chronic headaches. In this regard, regulations provide that the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. To determine what constitutes the same disability or manifestation for purposes of pyramiding, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. Here, the Board finds it unsettled as to whether the Veteran's occipital neuralgia is manifested entirely by symptoms identical to those of her headache disability, or whether it may encompass a symptom not contemplated by Diagnostic Code 8100. Her private neurological records, for example, suggest that occipital neuralgia constitutes a broader disability than headaches and involves an injury to the nerves within the head. Moreover, the Veteran's private neurologists have rendered separate diagnoses for the Veteran's occipital neuralgia and headache disabilities, which suggests that the disabilities are not identical or entirely overlapping in symptomatology. The Board finds the private records rendered by neurological specialists in this regard to be more persuasive than the statement made by the February 2021 VA nurse practitioner that the occipital neuritis and headache disabilities are one and the same. Any reasonable doubt in this regard will be resolved in favor of the Veteran. Thus, based on the current record, the Board does not find that a separate award of service connection for occipital neuritis violates the rule against pyramiding. It is within the purview of the VA Regional Office to determine the appropriate rating to assign for the disability. REASONS FOR REMAND Service connection for fibromyalgia is remanded. The Veteran has current fibromyalgia, documented, for example, in January 2016 and March 2017 private medical records. Fibromyalgia was additionally documented during her period of active duty from October 2014 to March 2015. See January 2015 and March 2015 treatment records. In February 2021, the Board's April 2020 decision was vacated due to its lack of discussion of specific evidence in support of the denial, including its failure to address the Veteran's statements that she has experienced continuous symptoms since discharge. The Board here notes that in addition to her statements, VA records reflect treatment for ongoing widespread pain in the years since discharge. See, e.g., VA treatment records of June 2015, January 2016, September 2018, June 2019. The Board thus finds there is an indication that the current fibromyalgia may be related to service. A VA medical opinion has not been obtained for the claim and must be provided. The examiner should address the etiology of the disability on both a direct basis, and as secondary to the service-connected white brain matter disease, headache disability, or occipital neuritis, as contended by the Veteran. Additionally, the VA Regional Office must comply with the Board's April 2020 remand directives. In the April 2020 remand, the Board directed the VA Regional Office to ensure that all service treatment records, including records from the Veteran's service in the Reserves, have been obtained. In a February 2021 Memorandum, the VA Regional Office determined that this development was not necessary, and constituted misdirected development. On remand, the development must be conducted. The directive will be recited verbatim below for consistency. The matter is REMANDED for the following action: 1. Ensure that all service treatment records have been associated with the claims file, including any reserve treatment records. If not, attempt to obtain, through all indicated and appropriate sources, any outstanding service treatment records. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 2. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of her fibromyalgia. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (a.) Opine on whether it is at least as likely as not that the current fibromyalgia began during any period of active service or is related to an in-service injury, event, or disease. In this rendering this opinion, please consider the following: January 2016 and March 2017 private medical records documenting current fibromyalgia January 2015 and March 2015 treatment records documenting fibromyalgia (dated from within her period of active duty from October 2014 to March 2015) (Continued on the next page) Veteran's reports of experiencing continuous symptoms of fibromyalgia since military service (b.) Opine on whether it is at least as likely as not that the current fibromyalgia has been (i.) caused, or (iii.) aggravated (i.e., worsened) by the Veteran's service-connected white brain matter disease, headache disability, or occipital neuritis. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.