FIBROMYALGIA

Summary

The veteran, who served in the U.S. Army from August 2008 to August 2012, appeals the denial of service connection for fibromyalgia and a cervical spine disability, as well as the continuation of a 10 percent rating for lumbar spine disability. The Board granted service connection for fibromyalgia, finding that the veteran's in-service complaints of pain, sleep disturbances, and headaches, supported by lay statements and treatment records, met the criteria for direct service connection. The Board afforded the veteran the benefit of the doubt, relying on a private medical opinion that linked the fibromyalgia to service-related stressors and symptoms, while finding the VA's negative opinion inadequate. Service connection for cervical spine disability, secondary to the service-connected lumbar spine disability, was also granted. The Board found the private medical opinion adequate, linking the cervical disability to altered posture and gait from the lumbar condition, supported by the veteran's testimony and treatment records. The claim for an increased rating for lumbar spine disability was remanded for a new VA examination to assess the current severity, including muscle spasms, and to evaluate the effects of medication, applying the Ingram decision regarding beneficial effects of medication. The Board noted that TDIU was not reasonably raised.

Rationale

Favorable private medical opinion linking fibromyalgia to service; Inadequate VA medical opinion; Benefit of the doubt afforded to veteran

Full Decision Text

Citation Nr: A26029820
Decision Date: 04/01/26	Archive Date: 04/01/26

DOCKET NO. 210520-160767
DATE: April 1, 2026

ORDER

Entitlement to service connection for fibromyalgia is granted.

Entitlement to service connection for cervical strain (neck strain with muscle spasm) (hereinafter "cervical spine disability"), to include as secondary to service-connected lumbar spine disability, is granted.

REMANDED

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the spine (hereinafter "lumbar spine disability") is remanded.

FINDINGS OF FACT

1. Resolving doubt in the appellant's favor, the evidence of record supports a finding that the appellant's fibromyalgia symptoms are due to service, began during active service, or are otherwise related to an in-service injury or disease.

2. Resolving reasonable doubt in the appellant's favor, the appellant's cervical spine disability is due to poor posture and compensation caused by her lumbar spine disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the United States Army from August 2008 to August 2012, with additional service in the reserves.

Procedural History

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2020 and April 2021 rating decisions issued by the Department of Veterans Affairs (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which denied service connection for fibromyalgia and a cervical spine disability as well as continued the appellant's 10 percent disability rating for her service-connected lumbar spine disability. VA timely received the appellant's May 2021 notice of disagreement (NOD), via VA Form 10182, seeking service connection and a higher disability rating. The appellant selected the Board's Hearing docket. A Board Hearing was held before the undersigned Veterans Law Judge (VLJ) in July 2025. A transcript of the proceeding is of record. 

The appellant's May 2021 NOD also seeks service connection for tinnitus and higher disability ratings for lower bilateral radiculopathy, which were last adjudicated in February 2015 and May 2019 rating decisions, respectively. However, there is no rating decision addressing these issues within the year prior to the filing of the May 2021 NOD. See 38 C.F.R. § 20.203(b) (providing a properly completed NOD must be filed within one year from the date the agency mails the notice of decision); 38 C.F.R. § 20.202(a) (requiring a NOD to identify the specific decision and issue or issues within the decision with which the claimant disagrees and defining issue as adjudication of a specific entitlement); 38 C.F.R. § 20.202(d) (referring to NOD as an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction). Therefore, the issues of service connection for tinnitus and higher disability ratings for bilateral radiculopathy are not on appeal and are not further addressed in this decision. 

Applicable Evidentiary Windows

The Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted by the appellant or his or her representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering
 hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. See also Cook v. McDonough, 36 Vet. App. 175 (2023). With respect to the claim of entitlement to a rating in excess of 10 percent for service-connected lumber spine disability, as it is remanded herein, any evidence the Board could not consider will be considered by the AOJ. 38 C.F.R. § 3.103(c)(2)(ii).

Total Disability Rating for Individual Unemployability (TDIU)

The issue of entitlement to TDIU takes its place as part of an increased disability rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU has not been reasonably raised as part of the appellant's increased disability rating claim for a lumbar spine disability, either by the appellant or the record. The record shows the appellant has been employed by VA as a human resource manager and as an executive secretary.

Service Connection, Generally

Establishing service connection generally requires (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which manifests during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117, 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). § 1117, 3.317(a)(2). 

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 by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). The United States Court of Appeals for the Federal Circuit clarified the standard for secondary service connection in Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023), finding that secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Id. Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364.

1. Entitlement to service connection for fibromyalgia is granted. 

The appellant seeks service connection for fibromyalgia as directly due to active duty service. See VA 21-526EZ, Fully Developed Claim, March 19, 2021; and NOD, May 20, 2021.

Legal Analysis

In a May 2010 service treatment record (STR), the appellant reported not being able to sleep at night with multiple night time awakenings. She was taking medication for sleep in a June 2010 STR. Her STRs noted insomnia in October 2010, followed by November 2010 care for difficulty maintaining sleep. See STR, October 14, 2010, November 13, 2010. She was diagnosed with insomnia when she
gia is granted. 

The appellant seeks service connection for fibromyalgia as directly due to active duty service. See VA 21-526EZ, Fully Developed Claim, March 19, 2021; and NOD, May 20, 2021.

Legal Analysis

In a May 2010 service treatment record (STR), the appellant reported not being able to sleep at night with multiple night time awakenings. She was taking medication for sleep in a June 2010 STR. Her STRs noted insomnia in October 2010, followed by November 2010 care for difficulty maintaining sleep. See STR, October 14, 2010, November 13, 2010. She was diagnosed with insomnia when she reported not maintaining sleep after an initial three or four hour sleep, intermittent wakening, and not getting restful sleep, with onset a year and a half prior. Id. The appellant's sleep complaints continued in January 2011 STRs. In her February 2012 Report of Medical History (RMH) for separation, the appellant reported trouble sleeping, specified as problems staying asleep.

The appellant also sought treatment for dizziness and lightheadedness in June 2010, when she was diagnosed with heat exhaustion. See STR, June 30, 2010. She also reported having dizziness when standing up on her February 2012 RMH but denied feeling tired or poor in April, September, and November 2012 STRs. Her reserve STR shows joint and chronic pain in September 2014.

The appellant also began complaining of headaches in May 2010 STRs, and she was diagnosed with headache syndrome. Headache syndrome continued on her active problem list with prescription medications. See STRs, November 16, 2010, and February 23, 2012. The appellant also reported frequent headaches, specified as chronic migraines in her February RMH for separation; however, the medical provider opined she had infrequent migraines. A February 2012 Report of Medical Examination (RME) for separation noted migraine headaches. The appellant continued to report frequent headaches during her time in the Army Reserves. See Reserve STR, September 2, 2014; October 9, 2015; and November 8, 2015.

The appellant's service record does not show she served in the Persian Gulf.

The appellant's VA treatment records also include reports of pain, sleep issues, and headaches, starting with back, neck, and myofascial pain, in addition to migraine headaches. See VA treatment record, June 13, 2019. She sought treatment for her migraines and requested to be evaluated for fibromyalgia in November 2020 due to pain throughout her body, hips, upper back, and neck. A January 2021 VA treatment record states the appellant has a reported history of multiple joint and muscle pain, chronic pain, and fatigue. The appellant reported chronic recurrent headaches since 2009. See VA treatment record, January 12, 2021. She continued to complain of chronic pain all over, including bilateral hips, neck, legs, shins, thigh, and knees, along with chronic fatigue, memory issues, and a hard time focusing in March 2021 VA treatment records. She was diagnosed with fibromyalgia in a March 2021 VA treatment record.  

In an April 2021 VA Fibromyalgia Disability Benefits Questionnaire (DBQ), the appellant reported her symptoms onset with back pain that turned into full body pain in 2009. The DBQ confirmed the appellant's fibromyalgia diagnosis based on signs and symptoms of muscle weakness, sleep disturbances, headache, and bilateral tender points for pain. See VA Fibromyalgia DBQ, April 6, 2021. An April 2021 VA medical opinion concluded the appellant's fibromyalgia was not likely due to service due to a lack of evidence during or after military service of the same fibromyalgia symptoms.

The record also contains a September 2025 private medical opinion provided by the appellant's treating physician, Z.S., MBBS, who is familiar with the appellant's medical history, symptoms, and functional limitations. The opinion is based on the appellant's report of in-service and ongoing symptoms, indicating the chronic nature of her symptoms, and an evaluation including a clinical examination, review of patient history, and lab work. Z.S. also noted there is a well-established association between service related stressors, environmental exposures, or trauma and the development of fibromyalgia, particularly in veterans and opined the appellant's fibromyalgia is likely related to her military service. See private medical opinion, September 10, 2025.

In addition, the appellant testified at the July 2025 Board Hearing that her symptoms of fibromyalgia began around 2009,
 who is familiar with the appellant's medical history, symptoms, and functional limitations. The opinion is based on the appellant's report of in-service and ongoing symptoms, indicating the chronic nature of her symptoms, and an evaluation including a clinical examination, review of patient history, and lab work. Z.S. also noted there is a well-established association between service related stressors, environmental exposures, or trauma and the development of fibromyalgia, particularly in veterans and opined the appellant's fibromyalgia is likely related to her military service. See private medical opinion, September 10, 2025.

In addition, the appellant testified at the July 2025 Board Hearing that her symptoms of fibromyalgia began around 2009, during active duty, but it took years to get diagnosed as fibromyalgia is diagnosed by elimination. She reported in-service migraines, sleep problems, and pain, starting in her back then progressing throughout the body, with memory issues starting later. See Board Hearing, July 3, 2025.

The appellant has provided additional lay statements that she experienced issues related to fibromyalgia during military service, such as full body pain, mood issues, sleep issues, constant fatigue, and forgetfulness, but says her complaints were not taken seriously. See VA 21-526EZ, Fully Developed Claim, March 19, 2021.

In the April 2021 rating decision on appeal, the AOJ favorably found the appellant has been diagnosed with fibromyalgia. Favorable findings made by the AOJ are generally binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a). Such evidence is not present in this case.

First, the appellant's fibromyalgia is not presumed to be related to service under 38 C.F.R. § 3.317 as there is no evidence the appellant is a Persian Gulf veteran who has active military service in the Southwest Asia theater of operations. 

However, despite not qualifying for presumptive service connection, service connection may still be established by showing the disease was incurred in or aggravated by service with evidence of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994).

With respect to Shedden element (2), in-service event, injury, or disease, the appellant's STRs do not contain diagnosis or treatment for fibromyalgia. However, her STRs do contain complaints of pain, sleep disturbances, and headaches, symptoms of fibromyalgia. Additionally, the appellant has made statements that her fibromyalgia symptoms began in 2009 in service. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the appellant's testimony as to in service symptoms of chronic pain, sleep difficulties, and headaches are competent. As both her STRs and lay statements show in-service complaints of symptoms associated with fibromyalgia, element (2) of Shedden is met.

Finally, Shedden element (3), nexus, is also met as Z.S. provided a September 2025 positive nexus medical opinion that the appellant's current fibromyalgia disability is likely due to her service. 

A medical opinion is adequate when the medical expert discusses the relevant facts of a claimant's case, including any relevant lay statements about the disability picture, such that the opinion and rationale sufficiently inform the Board of the expert's judgment on the medical question. Miller v. Wilkie, 32 Vet. App. 249, 254 (2020); see also Bowling v. Principi, 15 Vet. App. 1 (2001). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight "if it contains only data and conclusions").

Here, the September 20205 private medical opinion is adequate as it is based upon consideration of the appellant's prior medical history, current treatment and examinations, and also describes the disability in sufficient detail
 Vet. App. 249, 254 (2020); see also Bowling v. Principi, 15 Vet. App. 1 (2001). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight "if it contains only data and conclusions").

Here, the September 20205 private medical opinion is adequate as it is based upon consideration of the appellant's prior medical history, current treatment and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an adequate medical examination must provide a rationale and explanation for its conclusions). Specifically, the opinion is based on an in-person examination, review of the records, and consideration of the appellant's lay assertions of onset, as well as provides a thorough explanation as to how the appellant's in-service risk factors and symptoms onset resulted in the appellant's current fibromyalgia disability. The September 2025 private medical opinion is afforded significant probative weight.

Conversely, the April 2021 VA medical opinion is factually inadequate as it is based on the lack of objective evidence of symptoms in service; however, the appellant's STRs do show complaints and treatment for pain, sleep difficulties, and headaches, symptoms the April 2021 DBQ associated with her current fibromyalgia disability. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Additionally, the April 2021 VA medical opinion does not address the appellant's lay statements that she developed symptoms in service, received treatment in service, and that the symptoms continued and worsened since service. See Stefl, 21 Vet. App. at 123, Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding an "examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records to provide a negative opinion). Therefore, the April 2021 VA negative nexus opinion is afforded no probative weight. 

In sum, affording the appellant the benefit of the doubt, the Shedden elements of (1) current disability, (2) in-service event or injury, and (3) nexus are met. The appellant's claim for service connection is for a fibromyalgia is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability, is granted. 

The appellant seeks service connection for a cervical spine disability secondary to her service-connected lumbar spine disability. See VA 21-526 EZ, Fully Developed Claim, January 17, 2020. 

Legal Analysis

The appellant has been service-connected for a lumbar spine disability since August 2012. See rating decision, February 5, 2015 (granting service connection for lumbar strain and assigning an effective date of August 14, 2012).

The appellant's January 2018 private treatment records show she received physical therapy for her spine, including postural instability and impaired mobility. Her VA treatment records show she has had normal gait. See VA treatment records, November 13, 2019, and July 24, 2020, 

The appellant was diagnosed with cervical strain and cervical disk disease which the appellant asserts onset in 2019. See VA Neck Conditions DBQ, June 30, 2020. An accompanying medical opinion determined the appellant's current cervical spine disability is not likely due to her lumber strain due to (1) the lack of notations in the medical records connecting the disabilities and (2) because the anatomy of the upper back/neck are separate and distinct from the lumbar region so a lumbar strain would not cause symptoms in the neck unless the entire spine were
 impaired mobility. Her VA treatment records show she has had normal gait. See VA treatment records, November 13, 2019, and July 24, 2020, 

The appellant was diagnosed with cervical strain and cervical disk disease which the appellant asserts onset in 2019. See VA Neck Conditions DBQ, June 30, 2020. An accompanying medical opinion determined the appellant's current cervical spine disability is not likely due to her lumber strain due to (1) the lack of notations in the medical records connecting the disabilities and (2) because the anatomy of the upper back/neck are separate and distinct from the lumbar region so a lumbar strain would not cause symptoms in the neck unless the entire spine were involved, which would likely result in an inability to drive or ambulate easily, which is not shown on the examinations. Id.

The September 2025 private medical opinion by Z.S. also opined the appellant's current cervical spine disability is likely due to her service-connected lumbar spine disability as the appellant's lumber spine disability altered her posture and gait, resulted in potential for overuse injuries due to the compromised lumber spine, the appellant's lumber spine contribution to a generalized musculoskeletal pain pattern, and the clear timeline showing the appellant developed a cervical spine disability following years of lumbar spine pain and mechanical compensation with no intervening trauma or likely other cause. 

The appellant also testified at the July 2025 Board Hearing that her constant back pain and back spasms lead to an abnormal gait and affect her posture and spinal contour, resulting in a funny walk. She reports hunching over and that it is hard to sit up straight. See Board Hearing, July 3, 2025. 

In the July 2020 rating decision on appeal, the AOJ favorably found the appellant has been diagnosed with cervical strain. Again, favorable findings made by the AOJ are generally binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a). Such evidence is not present in this case. Spicer element (1), current disability, is met.

Additionally, Spicer, element (2) is also met as the September 2025 private medical opinion concluded the appellant's current cervical spine disability was caused by her service-connected lumbar spine disability. The September 2025 opinion is again adequate as it is based on the appellant's medical history and examination and describes the cervical spine disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. See D'Aries, 22 Vet. App. at 104; Stefl, 21 Vet. App. at 123. Specifically, the opinion is based on an in-person examination as Z.S. was the appellant's treatment provider, review of the medical records, and consideration of the appellant's lay assertions of onset. The opinion also provided an explanation as to how the appellant's lumbar spine disability caused upper spine and neck muscle compensation, increased the risk of overuse injury, and contributed to a generalized musculoskeletal pain pattern, which, with no intervening cause, led to the appellant's cervical spine disability. Moreover, the opinion is supported by the appellant's private medical records showing physical therapy for her lumber spine disability, specifically her posture alignment, as well as her Board Hearing testimony that she has poor posture due to her back pain. Therefore, the April 2025 medical opinion is afforded significant probative weight.

The June 2020 VA medical opinion is inadequate because it is conclusory relying solely on the lack of medical records showing a connection between the appellant's disabilities without explaining why such a lack of records is medically significant and does not address the appellant's lay statements or personal risk factors. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011), Miller, supra; Dalton, supra. Moreover, the medical opinion does not address aggravation at all. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013); and Spicer, supra.

Therefore, affording the appellant the benefit of the doubt, the Spicer elements of (1) current disability, (2) caused or aggravated by a service-connected disability, are met. The appellant's claim for service connection for a cervical spine disability, as secondary to her service-connected lumber spine disability, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Lynch, 21 F.4th at 781 (Fed. Cir. 2021).

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), VA's duty to assist ends when VA
. App. 136 (2013); and Spicer, supra.

Therefore, affording the appellant the benefit of the doubt, the Spicer elements of (1) current disability, (2) caused or aggravated by a service-connected disability, are met. The appellant's claim for service connection for a cervical spine disability, as secondary to her service-connected lumber spine disability, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Lynch, 21 F.4th at 781 (Fed. Cir. 2021).

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct a pre-decisional duty to assist errors discussed below.

Entitlement to a rating in excess of 10 percent for service-connected lumbar spine disability is remanded.

VA has a duty to assist veterans and must provide a medical examination or obtain a medical opinion when necessary to make a decision on a claim. § 5103A(d)(1); § 3.159(c)(4). Once VA undertakes the effort to provide an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Failure to provide an adequate opinion is a duty to assist error, and, unless the issue can be granted in full, the issue shall be remanded to the AOJ for correction of the error. 38 U.S.C. § 5013A(f); 38 C.F.R. § 20.802(a).

The June 2020 VA examination determined the appellant did not have guarding or muscle spasm of the lumbar spine. However, the appellant complained of spasms in her January 2020 claim, and muscle spasms were noted on a March 2019 DBQ and in the appellant's VA treatment records. Thus, an examination fully addressing the appellant's symptomatology must be obtained on remand.

Additionally, in Ingram v. Collins, 38 Vet. App. 130 (2025), the U.S. Court of Appeals for Veterans Claims recently clarified that when evaluating musculoskeletal conditions, the beneficial effects of medications must be discounted where the applicable diagnostic code does not reference medication as a factor in evaluation. The appellant's service-connected lumbar spine disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237-5242. This diagnostic code does not reference medication as a factor in evaluating this disability and as such, Ingram is for application.

The appellant's VA treatment record shows she takes Cyclobenzaprine for muscle relaxation and uses diclofenac gel for arthritis. Moreover, a June 2020 VA Back Condition DBQ notes the appellant treats her lumbar spine disability with Flexeril, "Arthritis Cream," and Advil. However, none of the provided VA examinations discussed the ameliorating effects of medication. As such, an adequate examination must be obtained to determine the severity of the appellant's lumbar spine and radiculopathy disabilities without consideration of the ameliorating effects of medication. See Ingram, supra; Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The matters are REMANDED for the following action:

1. Schedule the appellant for an examination with an appropriate clinician to determine the current severity of her lum
 Moreover, a June 2020 VA Back Condition DBQ notes the appellant treats her lumbar spine disability with Flexeril, "Arthritis Cream," and Advil. However, none of the provided VA examinations discussed the ameliorating effects of medication. As such, an adequate examination must be obtained to determine the severity of the appellant's lumbar spine and radiculopathy disabilities without consideration of the ameliorating effects of medication. See Ingram, supra; Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The matters are REMANDED for the following action:

1. Schedule the appellant for an examination with an appropriate clinician to determine the current severity of her lumbar spine disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria, including muscle spasms.

In addition, the clinician should assess the effects of any medications taken by the appellant for her lumbar spine disability and opine on the severity of the symptoms in the absence of such medications. 

If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

2. Thereafter, readjudicate the claim.

 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Wayne, 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.