Citation Nr: 1300448 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-30 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for idiopathic polymyositis, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from July 1988 to December 1988 and from October 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A noted in the file indicates that the Veteran failed to appear for his July 2011 Board hearing. In September 2012 the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012). The requested opinion has been provided and has been associated with the Veteran's VA claims folder. The VHA opinion has been provided to the Veteran and his representative. He was afforded 60 days to provide additional argument or evidence. In response, in December 2012 the Veteran's representative submitted additional argument. FINDINGS OF FACT 1. As its pathophysiology and etiology are partially understood and capable of being defined through laboratory studies, the Veteran's idiopathic polymyositis does not represent an undiagnosed illness. 2. There has been no demonstration by competent clinical, or credible lay evidence, that the Veteran's idiopathic polymyositis was present in service or is related to the Veteran's active service. CONCLUSION OF LAW Service connection for idiopathic polymyositis is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 VCAA notice must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in June 2009 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the June 2009 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claim. Pelegrini. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA records. In August 2009 the Social Security Administration indicated that they had no medical records pertaining to the Veteran. As noted, in October 2012 a VHA medical opinion that addressed the medical matters presented by the issue on appeal was obtained. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2012 VHA opinion was based on a consideration of the pertinent evidence of record, and the October 2012 VHA physician provided a supporting rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Compensation may be paid to a Persian Gulf Veteran when the evidence establishes: (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air 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, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness such as, but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). The term medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(i)(B)(ii). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Veteran asserts that his idiopathic polymyositis is related to his service in the Persian Gulf from January 1991 to May 1991. In particular, and as noted in his July 2010 substantive appeal, the Veteran contends that he was exposed to fumes from large burn pits while serving in Iraq. The Veteran has referenced VBA Training Letter 10-03 (Environmental Hazards in Iraq, Afghanistan, and Other Military Installations, Apr. 26, 2010) for the proposition that he was exposed to polycyclic aromatic hydrocarbons during his service in Iraq. A February 2009 private record indicates that the Veteran suddenly became ill and was diagnosed with polymyositis. March 2009 and April 2009 private records reflect assessments of idiopathic polymyositis. While idiopathic polymyositis was noted on April 2009 and June 2009 VA examinations, those examiners provided no opinions of etiology. The evidence clearly establishes that the Veteran is a Persian Gulf Veteran as is contemplated by VA regulations. However, entitlement under 38 C.F.R. § 3.317 is not warranted, because the Veteran does not have a disorder that can be considered either an undiagnosed illness, or a medically unexplained multisymptom illness. To the contrary, the Veteran has been diagnosed with idiopathic polymyositis and he can not therefore be deemed to have an undiagnosed illness. Further, the October 2012 VHA physician has stated that "the pathophysiology and etiology of idiopathic polymyositis is partially understood, similar to multiple sclerosis." The October 2012 VHA physician further stated that while the etiology of idiopathic polymyositis was unknown, there are defined laboratory findings. In short, idiopathic polymyositis is not a medically unexplained multisymptom illness, as its pathophysiology and etiology are partially understood. Service connection for idiopathic polymyositis under the provisions of 38 C.F.R. § 3.317 is therefore not warranted. As for service connection for idiopathic polymyositis on a nonpresumptive direct-incurrence basis, the Board notes that the Veteran's service treatment records, including his September 1993 service discharge examination, reveal no complaints or treatment related to polymyositis or muscle pain and weakness. The Veteran specifically denied any cramps in the legs and any joint problems on the corresponding September 1993 report of medical history. In fact, the Veteran has not asserted that he had symptoms related to polymyositis during his active service. In response to the question of whether the Veteran's idiopathic polymyositis was related to the Veteran's service, the October VHA physician stated, in pertinent part, as follows: It is less than 50% likely that the veteran's idiopathic polymyositis is etiology related to service. Risk factors for polymyositis are poorly understood, but identified risk factors include viruses and some drugs. Viruses include adenovirus and influenza, either of which might have been responsible for the illness that reportedly afflicted his entire family in 2/2009, just prior to the onset of his polymyositis. The viral exposure reported by the veteran is the only identified risk factor for his polymyositis. Polycyclic aromatic hydrocarbons are not currently thought to be a risk factor for polymyositis. Additionally, polycyclic aromatic hydrocarbons are wide spread in the environment. It is not clear if additional exposure that may have resulted from proximity to burn pits would result in a meaningful increase in exposure above the normal background level. The 18 year gap between his return from the Persian Gulf in 5/1991 and the onset of symptoms in 4/2009 also makes an association between the two events less likely. The Veteran did not make complaints related to polymyositis during service, and the October 2012 VHA physician specifically concluded that the Veteran's idiopathic polymyositis was not likely related to his military service. As for the probative value of the October 2012 VHA physician's opinion, the Board observes that the October VHA physician's opinion made specific reference to the Veteran's medical records and provided a well-supported rationale in support of his opinion. The October 2012 VHA physician also addressed the Veteran's contentions concerning exposure to polycyclic aromatic hydrocarbons. The Board notes that the October 2012 VHA opinion is uncontradicted. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing muscle pain and weakness during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis of a disease as complex as idiopathic polymyositis, which requires laboratory testing, or a competent opinion as to medical causation of the same. The VHA opinion, which was rendered by an internal medicine physician, also far outweighs any lay opinion provided by the Veteran on this medically complex matter. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. To the extent that the Veteran may be making assertions as to continuity of symptomatology, the Veteran specifically denied that he had any cramps in the legs and any joint problems on September 1993 and July 1995 service reports of medical history. The Board finds that the criteria for service connection for idiopathic polymyositis have not been met, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED NEXT PAGE) ORDER Service connection for idiopathic polymyositis is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs