Citation Nr: 1102003 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 05-10 702A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from February 1974 to June 1994, with service in Southwest Asia from December 1990 to May 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2003 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Veteran also requested a video-conference hearing in connection with the current claim. The hearing was scheduled and subsequently held in August 2007. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. The Veteran's claim was previously before the Board in October 2007 and remanded at that time for additional evidentiary development, to include affording the Veteran a VA examination. The requested development was completed and the Veteran's claim is before the Board for final appellate consideration. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board is aware that there are untranslated German documents contained in the claims file. These documents appear related to a legal dispute involving the Veteran and his former wife. Such documents have no bearing on the issue before the Board. Therefore, there is no prejudice to the Veteran in not having these documents translated. The Veteran also perfected an appeal on the issue of entitlement to service connection for chronic fatigue syndrome (CFS), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. This issue was likewise remanded in October 2007 for additional evidentiary development. Subsequent to the completion of the requested development, the RO granted service connection for CFS by way of an April 2009 rating decision. The RO evaluated the Veteran's CFS as 60 percent disabling under 38 C.F.R. § 4.88b, Diagnostic Code 6354, effective August 14, 2003. To date, the Veteran has not expressed disagreement with either the initial disability rating or the effective date assigned. Accordingly, the Board finds that this issue is not currently before the Board for appellate consideration. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran has fibromyalgia. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia, to include as a qualifying chronic disability, are not met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his claimed fibromyalgia is related to service, and in particular, to his service in Southwest Asia during the Persian Gulf War. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The VCAA duty to notify was satisfied by way of letters dated September and November 2003 that fully addressed the notice elements and were sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate a service connection claim generally on a direct and presumptive basis, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was subsequently advised in the December 2003 rating decision on appeal that his service connection claim for fibromyalgia was denied because the disability was the result of a known clinical diagnosis which neither occurred in nor was caused by nor aggravated by service. The Veteran received additional notice by way of a February 2005 letter. At that time, he was notified of the information and evidence that VA obtained on his behalf in support of the current claim. The Veteran was reminded of the information and evidence needed to substantiate a service connection claim generally on a direct and presumptive basis and he was also instructed to submit any evidence in his possession that pertained to his claim. That same month, the Veteran received notice in a statement of the case (SOC) of the criteria contained in 38 C.F.R. § 3.317. In March 2008, the Veteran was provided with additional information on how to substantiate a service connection claim based on undiagnosed illness. He was also notified pursuant to the Court's decision in Dingess of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The Veteran's claim was subsequently readjudicated following this notice by way of a May 2009 supplemental statement of the case (SSOC). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The Veteran's service treatment and post-service treatment records have been obtained. The Veteran was also afforded a VA examination in connection with the current claim. The examination evaluated the Veteran's claimed disability in conjunction with his prior history and described this disability in sufficient detail so the Board's evaluation of it was an informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, the Veteran's claim was previously before the Board in October 2007 and remanded at that time for additional evidentiary development, to include affording the Veteran a VA examination. The requested development was completed as directed. D'Aries, 22 Vet. App. at 105; Dyment, 13 Vet. App. at 146-47. The Board is also aware that the Veteran applied for Social Security Disability benefits. See January 2002 VA psychology assessment note. A medical statement from M. Shetty, M.D. pertaining to the Veteran's ability to perform work-related physical activities is associated with the claims file. See Dr. Shetty's June 2001 statement. However, the Veteran indicated that his claim was denied. See January 2002 and June 2004 VA treatment notes. Additionally, it appears that the Veteran requested information pertaining to VA's vocational rehabilitation training and education (VRT) program. The extent to which the Veteran participated in a VRT program, if at all, is unclear from the record. In any case, the Veteran does not allege, nor does the record reflect that these claimed records are relevant to the issue on appeal. As such, there is no duty to obtain these records and associate them with the Veteran's claims file. See generally, Golz v. Shinseki, 590 F.3d 1317, 1321-23 (2010). Thus, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Establishing Service Connection Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). According to 38 C.F.R. § 3.309(a) (2010), service connection for certain chronic disabilities, including arthritis or organic diseases of the nervous system, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which cannot be attributed to any known clinical diagnosis, but which instead resulted from an undiagnosed illness 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, 2011. 38 C.F.R. § 3.317(a)(1) (2010). A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(d). There are three types of "qualifying chronic disabilities" for the purposes of 38 C.F.R. § 3.317: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome); or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A "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)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). Objective indications of a 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)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi- symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Factual Background and Analysis Service treatment records (STRs) associated with the claims file revealed that the Veteran was afforded a clinical evaluation and physical examination in February 1974 prior to entering service. The clinical evaluation was normal and no evidence of fibromyalgia was found. Subsequent examinations performed in May 1979, June 1984, August 1985, and April 1990 were also negative for any diagnosis of or treatment for fibromyalgia. In September 1991, a clinical evaluation was essentially normal, and no evidence of fibromyalgia was found. But, the Veteran reported having achy joints (particularly with weather changes) and leg cramps when working out. The Veteran was also afforded a clinical evaluation and physical examination in February 1994 prior to retirement. No evidence of fibromyalgia was found. The first pertinent post-service evidence of record is dated June 1995. The Veteran was afforded a VA general medical examination (GME). The Veteran's past medical history and system review was essentially unremarkable. He reported subjective complaints of right shoulder and elbow tenderness and pain, particularly after exercising. He denied any serious operations, accidents, or illnesses. On physical examination, the Veteran was in no acute distress, but examination of the right shoulder and elbow revealed painful motion and tenderness. The impression was right shoulder and elbow pain. The etiology of this condition was "obscure," according to the examiner. The examiner speculated that the Veteran might have early traumatic arthritis or a problem with his tendons; no diagnosis of fibromyalgia was rendered at that time. There was an impression of probable fibromyalgia in a private treatment note dated September 1999. Follow-up private treatment records dated October 1999, April and November 2000, March, May, and November 2002, as well as March 2003 showed complaints of generalized myofascial pain or muscle tenderness. The impressions included fibromyalgia and/or CFS. The Veteran presented to a VA medical facility in October 2001 as part of a Persian Gulf Registry examination. According to the Veteran, in 1994, he developed generalized dull aching in his muscles throughout his whole body as well as cramps and involuntary muscle spasms in his arms and legs. He was subsequently diagnosed as having fibromyalgia and CFS in 1999. A review of systems at that time revealed evidence of joint pains in the fingers, hands, and shoulders. A physical examination revealed pain in the acromioclavicular joints bilaterally. The impression was fibromyalgia, chronic fatigue, left lower quadrant abdominal pain, and forgetfulness. The Veteran was also afforded a VA Compensation and Pension (C&P) Persian Gulf examination in October 2003. The Veteran provided a past medical history in which he specifically denied having generalized aches or pains in service. However, the Veteran stated that he experienced a "dull aching" throughout his body beginning in 1994. The Veteran further stated that he was diagnosed as having fibromyalgia and CFS in 1999. Following a physical examination, the examiner diagnosed the Veteran as having a history of fibromyalgia and chronic pain syndrome. The Veteran testified before the undersigned VLJ in connection with the current claim in August 2007. Specifically, he stated that he was diagnosed as having fibromyalgia in 1997 and that his symptoms were manifested in the neck, shoulder, and low back. The Veteran also reported subjective symptoms of daily tiredness, soreness, aching pain, and muscle spasms. These symptoms led the Veteran to stop driving and further resulted in sleep impairment. The Veteran and his wife also testified that the Veteran was "exhausted" in the mornings by the time that he got up, took his medications, and performed activities of daily living. The onset of the Veteran's chronic fatigue, according to his wife, was 1996. The Veteran further stated that his symptoms worsened with physical activity. The Veteran was afforded a VA C&P chronic fatigue syndrome/fibromyalgia examination in connection with the current claim in April 2008. The examiner reviewed the Veteran's claims file, including the STRs. The Veteran reported that he was "barely" able to perform household chores and that he got fatigued simply when feeding his dogs. He also reported subjective complaints of pain in all of the skeletal musculature as well as incapacitating episodes which required bedrest and treatment by a physician. The Veteran also reported having generalized muscle aches beginning in 1994 which were characterized by constant musculoskeletal pain, muscle weakness, sleep disturbance, and headaches. According to the examiner, the Veteran developed "debilitating" fatigue in 1994 that was severe enough to reduce or impair the Veteran's average daily activity below 50 percent of the pre- illness activity level for a period of six months. The examiner reviewed ten criteria used to document evidence of chronic fatigue and determined that the Veteran met eight of the ten listed criteria. The examiner noted that the Veteran was subsequently diagnosed as having fibromyalgia in private treatment records dated 1999, 2002, and 2003. A physical examination of the Veteran found him to be in moderate distress due to multiple aches and pains. He also reported having pain in all of the muscle groups from his neck to his feet. Muscle strength in all areas was decreased by approximately 25 percent. The examiner noted, however, that there were no trigger or tender points associated with the Veteran's complaints. The examiner indicated that the existence of trigger points was "the hallmark of fibromyalgia." Here, the Veteran merely reported generalized muscle aches. In the absence of individual trigger points or areas of muscle spasm, the examiner concluded that the diagnosis of fibromyalgia was inappropriate. Instead, the examiner stated that the appropriate diagnosis was CFS. The Veteran also submitted an article in support of his service connection claim. This article, which discussed fibromyalgia in the context of Veteran's benefits compensation, was reviewed and associated with the claims file. This evidence, however, does not have bearing on the issue on appeal. See 38 C.F.R. § 20.1304(c) (2010). Specifically, the article is too general in nature to provide, alone, the necessary evidence to show that the Veteran's claimed disability was related to service. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the Veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, the article in the current case does not address the facts of the Veteran's specific case. Thus, the Board concludes that the article does not establish the existence of the Veteran's claimed fibromyalgia or its relationship to service. Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for claimed fibromyalgia. Preliminarily, the Board notes that the Veteran's STRs were completely negative for a diagnosis of or treatment for fibromyalgia in service or within one year after discharge from service. The first pertinent post- service evidence of record reflecting an impression of probable fibromyalgia in this case is dated in September 1999. This impression was repeated on several more occasions, but there was no confirmed diagnosis and the Board notes that none of clinical reports are supported by a rationale showing how the history and clinical findings supported a diagnosis. The clinical reports reflecting impressions of fibromyalgia are outweighed by the April 2008 VA C&P examination report. In this regard, the Board finds the most recent April 2008 VA C&P examination report to be highly probative evidence on the issue of service connection because the examiner provided a rationale (supported by an interview with and examination of the Veteran) and relied on professional training and specialized expertise as well as a review of the Veteran's claims file before determining that the Veteran did not have currently diagnosed fibromyalgia. Rather, the examiner determined that the Veteran's symptoms were consistent with CFS, a disability for which the Veteran is already service-connected. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008) The VA examiner's conclusion is buttressed by the review of the claims file and discussion of the Veteran's past medical history. Importantly, the examiner also pointed out that none of the private treatment records (or VA treatment records) discussed above contained information about the Veteran's claimed trigger points. Rather, a review of these records merely contained subjective complaints of generalized muscle pain. The examiner pointed out that the existence of trigger points was "the hallmark of fibromyalgia." In the absence of individual trigger points or areas of muscle spasm, the examiner concluded that the diagnosis of fibromyalgia was inappropriate. Instead, the examiner stated that the appropriate diagnosis was CFS. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran and his representative have submitted lay statements and hearing testimony during the pendency of this claim expressing the opinion that the Veteran has fibromyalgia that is related to service. Chronic multi-symptom illnesses are not the type of disabilities readily identifiable by lay observation. They consist of a cluster of symptoms that often overlap with other diagnosed and undiagnosed illnesses and the varied impressions and diagnoses in the Veteran's own case is evidence that even medical experts are challenged to identify and diagnose chronic multi-symptom illnesses. The Board finds that the Veteran and his representative are not qualified to diagnose fibromyalgia and their arguments in this respect are afforded little probative weight. Even assuming that the Veteran or his representative is competent to diagnose fibromyalgia, the Board finds that there statements are outweighed by the April 2008 VA C&P examiner's opinion, which specifically found no evidence of fibromyalgia and was based on a physical examination and interview of the Veteran, a review of the medical history and records, and included a rationale for the opinion. As previously stated, entitlement to direct service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is no probative evidence of diagnosed fibromyalgia. Therefore, the Board concludes that the Veteran's claim of service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, must be denied in the absence of any current clinical evidence confirming the presence of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). Accordingly, the Board concludes that the Veteran's claim of service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. The Board has applied the benefit-of-the-doubt doctrine in reaching this conclusion. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs