Citation Nr: 0810756 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-05 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from August 1959 to August 1961 and from February 1965 to February 1970 and additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which determined that new and material evidence had not been received sufficient to reopen a previously denied claim of service connection for fibromyalgia and also essentially reopened a previously denied claim of service connection for post-traumatic stress disorder (PTSD) and denied this claim on the merits. The veteran disagreed with this decision in November 2002. An RO hearing was held on the veteran's claims in April 2003. The veteran perfected a timely appeal in February 2004. In November 2006, the Board reopened the veteran's previously denied service connection claim for PTSD and denied this claim on the merits. The Board also reopened the veteran's previously denied service connection claim for fibromyalgia and remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's service connection claim for fibromyalgia has been obtained. 2. The veteran's currently diagnosed chronic pain is of unclear etiology and is not related to active service. 3. The veteran does not currently experience any disability attributable to fibromyalgia. CONCLUSION OF LAW The veteran's claimed fibromyalgia was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In an October 2001 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his fibromyalgia during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The October 2001 letter also defined new and material evidence, advised the veteran of the reasons for the prior denial of the claim of service connection for fibromyalgia, and noted the evidence needed to substantiate the underlying claim of service connection. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). As noted in the Introduction, in November 2006, the Board reopened the veteran's previously denied service connection claim for fibromyalgia and remanded this claim to the RO/AMC. Pursuant to the Board's November 2006 remand, additional notice of the five elements of a service-connection claim was provided in December 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the October 2001 letter was issued to the veteran and his service representative prior to the September 2002 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's service connection claim for fibromyalgia is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that the veteran's service personnel records from his first period of active service are not available for review. Accordingly, the RO has attempted to obtain the veteran's service personnel records or alternate sources for this information. In May 2002, the National Personnel Records Center (NPRC) notified VA that, after conducting an extensive and thorough search among its records, the veteran's service personnel records from his first period of active service could not be located. NPRC determined that these records did not exist, they did not have them, or that further efforts to locate these records would be futile. In July 2002, the RO notified the veteran that certain of his service personnel records were unavailable for review and requested that he provide alternate sources for such information and/or copies of any service personnel records that were in his possession. In cases where the veteran's service medical records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA must also provide an explanation to the appellant regarding VA's inability to obtain his or her service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veterans Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). In this case, it appears that all of the veteran's available service medical records from both periods of his active service have been obtained and associated with the claims file. The Board also notes that, pursuant to the November 2006 remand, the RO provided the veteran with VA examination in May 2007. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below in greater detail, the veteran's VA examination in May 2007 provided no evidence of any current disability due to his claimed fibromyalgia or any medical nexus to active service. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred fibromyalgia during active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The veteran's service medical records from his first period of active service show that he denied any relevant medical history at his enlistment physical examination in February 1959. Clinical evaluation was completely normal. The veteran's history and clinical evaluation were unchanged on periodic physical examination in August 1959. At the veteran's separation physical examination at the end of his first period of active service in July 1961, clinical evaluation was completely normal. In May and June 1964, while the veteran was in the U.S. Navy Reserves, he was evaluated for complaints of multiple joint aches and swelling. The examiner noted that these complaints were allegedly diagnosed as gouty arthritis in 1962. The veteran's history included migratory pain in many joints over the prior 2 years. He would usually be completely free of pain or joint distress during the day until about supper time at which time he would often note itchy bumps on his skin and pain in the joints and muscles of his lower extremities and or his upper extremities. These would usually be gone by the next morning and seldom lasted for more than a few hours in one joint. The examiner stated that, when he examined the veteran in May 1964, physical examination of the hands, elbows, shoulders, and knees was all negative. There was trace edema in the ankles, a giant hive on the veteran's back about 3 x 3 centimeters, and marked dermatophytosis of the skin. The examiner stated that there was nothing on physical examination demonstrating a chronic musculoskeletal illness and that the veteran suffered from an "ill-defined condition." The veteran's service medical records from his second period of active service show that he denied any relevant medical history at his enlistment physical examination in February 1965. Clinical evaluation of the veteran's joints was completely normal except for a left knee scar. On periodic physical examinations in September 1966 and March 1967, clinical evaluation was completely normal. On periodic physical examinations in April and August 1968, clinical evaluation was completely normal. The veteran complained of a "bizarre history" of wandering arthralgias and swelling joints on outpatient treatment in August 1968. The in-service examiner noted that the veteran had had an extensive work-up in the past without a definitive diagnosis. The veteran's joint swelling only bothered him occasionally. On periodic physical examination in December 1968, the veteran reported a history of arthritis or rheumatism. The in-service examiner noted that the veteran had experienced several months-long episodes of arthralgias, myalgias, weakness, and hive, but that following a U.S. Navy Reserve evaluation, nothing was found. The veteran reported experiencing occasional swelling and arthralgias. Clinical evaluation of the veteran's joints was completely normal. At the veteran's separation physical examination in January 1970 at the end of his second period of active service, clinical evaluation was completely normal. The post-service medical evidence shows that, on private outpatient treatment in February 1996, the veteran's complaints included chronic musculoskeletal etiology and constant exhaustion with stiffness. The veteran continued to be ambulatory and functional. The private examiner stated that the veteran's "symptom complex, although having features of fibromyalgia, is certainly not diagnostic for that condition." In April 1996, the veteran reported "lots of pain" and that he suffered from fibromyalgia. The diagnoses included fibromyalgia. In May 1998, the veteran complained that his fibromyalgia was worsening. The assessment was that the veteran's fibromyalgia was "not getting any better." In September 1998, the veteran complained of "a complex panoply of medical problems." He reported a history of being diagnosed as having fibromyalgia "based on unknown criteria at an unknown institution in an unknown time. He is convinced he has fibromyalgia." The private examiner noted the veteran's lack of significant trigger points for fibromyalgia. The veteran denied specific joint pain, effusion, redness, or heat. This examiner also noted that the veteran "did not appear to be in any sort of pain throughout the examination." The assessment included fibromyalgia, although the examiner stated, "I certainly doubt this diagnosis. Even if the diagnosis were true, I doubt its significance. Certainly the [veteran] has a perceived pain syndrome without etiology . . . . It is certainly real to the patient despite the fact that there is no clear cause for his pain." On private outpatient treatment in May 2001, the veteran complained of multiple joint pain. Physical examination showed a straight non-tender spine, non-tender shoulders, no joint swelling, no ankle edema, no muscle fasciculations, and no muscle tenderness. The private examiner stated that, overall, the veteran "may have" fibromyalgia. On subsequent private outpatient treatment in May 2001, the veteran complained of multiple aches and pains in his knees, legs, ankles, feet, shoulders, and arms. Physical examination showed that the only abnormal finding was increased medial/lateral instability of both knees and "a little bit" of posterior instability of both knees. There also was tenderness over the soft tissues of all extremities. The assessment included fibromyalgia. VA clinical records show that, on outpatient treatment in June 1999, the veteran complained of body aches, leg, arm, and hand weakness, and occasional numbness of the hands and legs. He reported a history of being diagnosed as having fibromyalgia in 1989 and being told that he had all of the symptoms of fibromyalgia except for trigger points. The assessment included fibromyalgia. Following VA outpatient treatment in November 1999, the assessment included a history of fibromyalgia. The VA examiner stated that he was uncertain of this diagnosis because the veteran had co-morbidities of PTSD and sleep apnea which can mimic or complicate fibromyalgia. In September 2000, the veteran complained of fibromyalgia without trigger points. Physical examination showed diffuse back tenderness. The impressions included fibromyalgia/chronic pain syndrome, with a noted that this diagnosis had been made in the past by some providers while other providers concluded that this was not a valid diagnosis for the veteran. In a letter dated on May 9, 2001, F.J.D., M.D., stated that the veteran had a 40-year history of multiple pain complaints. Dr. F.J.D. stated that he first saw the veteran in January 2001 and substantiated a diagnosis of fibromyalgia. In a May 23, 2001, letter, Dr. F.J.D. stated that the veteran had diffuse aches in his muscles and joints during active service which were misdiagnosed as gout. The veteran was seen by a private examiner "who apparently diagnosed fibromyalgia." Dr. F.J.D. stated that the diagnosis of fibromyalgia was substantiated at a VA Medical Center. On VA outpatient treatment in September 2002 with Dr. F.J.D., the veteran complained of fibromyalgia and pain in the knees, hips, shoulders, and arms. Physical examination showed normal walking, normal reflexes, and normal joints. Dr. F.J.D. stated, "It is difficult to distinguish between the functional complaints as well as the real complaints at this point." On VA examination in May 2007, the veteran complained of severe pain everywhere. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran reported experiencing pain in every part of his body that was severe, lasting anywhere from minutes to hours. He complained of almost constant, daily pain and stated any activity worsened his pain. The veteran asserted that he had been told in 2001 that he had 27 trigger points for fibromyalgia, although the VA examiner noted that "it is documented many times that [the veteran] has no significant trigger points." The veteran also asserted that he had been diagnosed as having gout in 1962, although the VA examiner noted that there was no documentation of such diagnosis in the veteran's records. Physical examination showed that the veteran moved quite easily around the examination room, getting up and down in his chair quite often, and getting up on the examining table more easily than expected given the veteran's description of his pain. Testing of the 18 tender points for fibromyalgia, the veteran had "perhaps" 6 or 7 that were positive. "He had numerous other areas on his body that caused a trigger type pain, even in unexpected areas such as his lateral knee or his mid forearm." The veteran had no generalized muscle tenderness and had good range of motion of his joints. There was no joint redness, swelling , or deformity. The VA examiner concluded that it was obvious that the veteran did not have a clear cut diagnosis. He noted that, although the veteran had been diagnosed as having "fibromyalgia without trigger points" in the past, this diagnosis was contradictory because the diagnostic criteria for fibromyalgia included at least 11 of 18 predefined trigger points. The VA examiner stated that the veteran's pain was not typical of fibromyalgia and, although he had some trigger points that were consistent with fibromyalgia, there also was tenderness in areas that should not be tender for a diagnosis of fibromyalgia. This VA examiner also determined that Dr. F.J.D.'s opinion that the veteran had been misdiagnosed with "gouty arthritis" was not supported by the evidence from the veteran's records. Although Dr. F.J.D. diagnosed fibromyalgia, this VA examiner determined that the veteran's psychiatric disorders obscured a clear cut diagnosis of fibromyalgia. Also, the VA examiner stated that the veteran did not fit the diagnostic criteria for fibromyalgia. This VA examiner determined that, because the veteran's muscle pain did not begin during active service, it was less likely than not related to active service. The assessment was chronic pain of undetermined etiology. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for fibromyalgia. Initially, the Board observes that the veteran was not treated for fibromyalgia at any time during his two periods of active service. In May 1964, while the veteran was in the Navy Reserves, an in-service examiner noted that the veteran allegedly was diagnosed with "gouty arthritis" in 1962. This examiner, however, found no evidence on physical examination to support a diagnosis of a chronic musculoskeletal illness and concluded that the veteran suffered from an "ill-defined condition." In August 1968, a different in-service examiner found no definitive diagnosis for the veteran's "bizarre history" of joint swelling. At that time, the veteran reported that his joints swelled only occasionally. It appears that the veteran was first diagnosed as having fibromyalgia following private outpatient treatment in April 1996, or more than 26 years after his service separation. With respect to negative evidence, the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is significant. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Another private examiner diagnosed fibromyalgia after examining the veteran in September 1998; however, this examiner doubted this diagnosis because of the veteran's lack of trigger points for fibromyalgia and stated that, even if fibromyalgia was a true diagnosis, it was not significant. Instead, this examiner concluded that the veteran perceived that he suffered from a pain syndrome without etiology and there was no clear cause for the veteran's reported joint pain. Following VA outpatient treatment in November 1999, a VA examiner stated that the veteran had a history of fibromyalgia but was uncertain about this reported history because the veteran's co-morbidities could mimic or complicate a diagnosis of fibromyalgia. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that Dr. F.J.D. concluded in May 2001 that the veteran's fibromyalgia was related to a 40-year history of joint pain and had been misdiagnosed during active service as gout; however, it appears that Dr. F.J.D. based his May 2001 opinion solely on the history provided by the veteran which is not supported by the record. For example, the veteran reported that he experienced diffuse aches and pains during active service. As noted, however, the veteran's service medical records are completely silent for any complaints of or treatment for aches and pains at any time during either of his two periods of active service-he did report his "bizarre history" of arthralgias during his second period of service. There also is no evidence in the veteran's service medical records that he was diagnosed as having gout during either period of active service. Thus, it is clear that the May 2001 opinion is merely a recitation of the veteran's own contention; there is no indication that the examiner was rendering a medical opinion as to the date of onset based on the clinical or objective evidence. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). By contrast, after reviewing the veteran's complete claims file, including his service medical records, and after conducting a thorough physical examination of the veteran, the VA examiner determined in May 2007 that it was obvious that the veteran did not have a clear cut diagnosis. The VA examiner noted that the prior diagnosis of "fibromyalgia without trigger points" in the veteran's medical records was contradictory because the diagnostic criteria for fibromyalgia included at least 11 of 18 predefined trigger points. The VA examiner stated that the veteran's pain was not typical of fibromyalgia and, although he had some trigger points that were consistent with fibromyalgia, there also was tenderness in areas that should not be tender for a diagnosis of fibromyalgia. This VA examiner also reviewed Dr. F.J.D.'s May 2001 opinion and determined that that the assertion that the veteran had been misdiagnosed with "gouty arthritis" was not supported by the veteran's records. Although Dr. F.J.D. had diagnosed fibromyalgia, the VA examiner determined in May 2007 that the veteran's psychiatric disorders obscured a clear cut diagnosis of fibromyalgia. Also, the VA examiner stated that the veteran did not fit the diagnostic criteria for fibromyalgia. This VA examiner determined that, since the veteran's muscle pain had not begun during active service, it was less likely than not related to active service. Given the comprehensive nature of this opinion, and because the VA examiner had access to and reviewed the veteran's complete claims file prior to offering his opinion, the Board finds the May 2007 VA examiner's opinion most probative on the issue of whether the veteran's claimed fibromyalgia is related to active service. As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for fibromyalgia is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs