Citation Nr: 0928506 Decision Date: 07/30/09 Archive Date: 08/04/09 DOCKET NO. 04-06 955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for bilateral shoulder pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from July 1980 to August 2002. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied, in pertinent part, entitlement to service connection for fibromyalgia and bilateral shoulder pain. The Veteran testified during an informal hearing before a Decision Review Officer (DRO) in September 2004; a summary of that hearing is of record. In October 2007, the Board remanded these matters to the RO to afford due process and for other development. Following its completion of the Board's requested actions, the RO continued the denial of the Veteran's claims (as reflected in a March 2009 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims herein decided has been accomplished. 2. Evidence of record demonstrates that fibromyalgia as likely as not was manifested during active service or was developed as a result of an established event, injury, or disease during active service. 3. Evidence of record demonstrates that bilateral shoulder pain as likely as not was manifested during active service or was developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW Fibromyalgia was incurred in or aggravated by during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303 (2008). Bilateral shoulder pain was incurred in or aggravated by during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) are applicable to this appeal. The Board has considered the VCAA provisions with regard to the matter on appeal but finds that, given the favorable action taken below, no further analysis of the development of these claims is necessary at the present time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Additionally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis At the outset, it should be noted that the Veteran is presently service connected for the following joint/bone- related disabilities: degenerative arthritis of the right and left hips; degenerative joint disease of the cervical spine; thoracic/lumbar sprain; tendonitis of both elbows; bilateral patellofemoral pain syndrome; and bilateral plantar fasciitis. The Veteran contends that she currently suffers from fibromyalgia and bilateral shoulder pain due to an injury in active service. Service treatment records reveal complaints of bilateral shoulder pain and a diagnosis of fibromyalgia. In a December 1991 service treatment record, the Veteran was evaluated for knee, hip, shoulder, and back pain aggravated by strenuous exercises such as running. She gave a history of a fall from an obstacle course bar and landing on her left hip. The examiner diagnosed osteoarthritis/patellofemoral syndrome in both knees. In a June 1993 service treatment record, the Veteran complained of joint pain including both shoulders, and was diagnosed with multiple joint pains. However, in a December 1993 reenlistment examination, the Veteran's shoulders were noted as normal. In a December 1995 service treatment record, the Veteran complained of tingling sensation in the left shoulder and upper arm, and was diagnosed with a shoulder muscle strain. In a January 2000 service orthopedic note, the Veteran complained of problems regarding multiple joints over the previous ten years. Upon physical examination, the Veteran was found to have no real significant trigger points. The physician diagnosed polyarthralgias with main symptoms involving the hips and knees with some abnormality on bone scan noted. The physician also noted that some complaints were more consistent with fibromyalgia type process with the long duration. In a January 2000 follow-up examination, the physician diagnosed mild fibromyalgia. According to service treatment records, the Veteran was treated with physical therapy for fibromyalgia in August 2000, September 2000, October 2000, and November 2000. In a November 2000 medical board and June 2002 retirement examination report, the Veteran was again diagnosed with fibromyalgia. In a December 2002 x-ray report, the physician noted unremarkable shoulder bilaterally, without evidence of current or prior injury, and no evidence for arthropathy. In a December 2002 VA examination report, the Veteran gave a history of fibromyalgia based on complaints of pain and bilateral shoulder pain. Upon examination, the physician found shoulder abduction and forward flexion to 180 degrees, external and internal rotations to 90 degrees, and no diminution with repetitive testing bilaterally. The examiner diagnosed bilateral shoulder bursitis. Concerning the fibromyalgia, the examiner opined that one cannot make this diagnosis considering all of her pains are joint related and not muscle group related, and, the diagnosis is not usually made in the face of diagnosed depression, insomnia, anxiety disorder, and obsessive compulsive disorder. In a June 2003 post-service treatment note from Beaufort Naval Hospital, the Veteran gave a history of joint pain and tenderness. The Veteran noted that her back pain and subsequent joint pain occurred after an accident in the 1980s where she fell off a bar while teaching as a drill instructor. She indicated that since that time she had seen many physicians and was diagnosed with fibromyalgia in 1999. After a physical examination, the physician diagnosed polyarthritis and possibly fibromyalgia. In an April 2004 Beaufort Naval Hospital outpatient record, the Veteran gave a history of pain for several years, and a diagnosis of fibromyalgia. The Veteran stated she was in severe pain in paraspinals, neck, hip joints, ankles and hands. The physical therapist diagnosed fibromyalgia versus bilateral hip bursitis. In April and August 2004 VA rheumatology examination reports, the Veteran complained of multiple joint pains. The Veteran was noted to be positive for multiple pressure points, and the physician diagnosed fibromyalgia. In a June 2004 Beaufort Naval Hospital internal medicine report, the Veteran complained that she was still having problems with fibromyalgia, and has been reluctant to take her medication. The examiner noted the Veteran had trigger points bilaterally, but no worse than past examinations. The physician examiner diagnosed fibromyalgia. In a January 2005 VA examination report, the Veteran complained of multiple joint pain, especially in hips, hands, fingers, knees, and ankles, but denied pain in any soft tissue areas. The physician noted that she did not demonstrate any tenderness of any joints or muscle groups. The physician opined that given the Veteran's repeated assertion that she does not have pain in her muscles or other soft tissues; the Veteran does not have fibromyalgia, which, by definition, is a condition of the muscles and other fibrous tissues. The physician also noted that given the previously positive anti-nuclear antibody and speckled nuclear pattern, it was also his opinion that the disability was a not-yet-diagnosed rheumatologic or autoimmune disorder, made worse by her anxiety disorder, rather than fibromyalgia. The physician added that the closest thing to a diagnosis he was able to give was undiagnosed multi-joint chronic pain. In a July 2005 VA examination report, the physician diagnosed thoracic sprain, lumbar strain, right and left elbow tendonitis, right and left knee patellofemoral syndrome, and past history of otitis media. In an August 2008 VA examination report, the physician noted reviewing the entire claims file and upon examination, found the Veteran had at most eight tender points as defined by the American College of Rheumatology, which does not meet criteria for a diagnosis of fibromyalgia. The physician further noted that the fact that rheumatologists in the past have evaluated her and have identified per their notes multiple tender points, although they never identified how many or which ones, does not negate their diagnosis of fibromyalgia nor dies it negate the fact that at this time she does not meet the accepted criteria for fibromyalgia. The physician specified that she clearly has bilateral shoulder pain that began before separation from service and she clearly has several physicians who have diagnosed her as fibromyalgia prior to her separation from service. The physician additionally opined that it is at least as likely as not that she has both fibromyalgia and chronic bilateral shoulder pain disorder most likely tendonitis with some mild arthritis on the right which began during her active service. In view of the totality of the evidence, including the Veteran's documented fibromyalgia and chronic bilateral shoulder pain, her diagnosis of fibromyalgia and complaints of bilateral shoulder pain in service, and positive correlation between service and these disabilities by the VA physician, the Board finds that the Veteran's fibromyalgia and chronic bilateral shoulder pain are as likely as not a result of active service. Although the December 2002 and January 2005 VA physicians disagreed with the fibromyalgia diagnosis, the April 2004 rheumatologist and August 2008 VA examiner affirmed the fibromyalgia diagnosis as related to the fibromyalgia and chronic bilateral shoulder pain which began in service. Consequently, the Board finds that the evidence of record is at least in equipoise, and therefore, affording the Veteran the benefit of the doubt, service connection for fibromyalgia and chronic bilateral shoulder pain are warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for fibromyalgia is allowed. Entitlement to service connection for bilateral shoulder pain is allowed. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs