Citation Nr: 1307115 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 06-12 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a disability of the muscle and joints, claimed as fibromyalgia. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney At Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran had active duty service in May 1980 and also from June 1978 to September 1978. She also served in the South Carolina Army National Guard from April 1996 to May 2001, with a confirmed period of Inactive Duty Training (INACDUTRA) on November 6, 1999. This appeal to the Board of Veterans' Appeals (Board) is from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran then testified at a videoconference hearing at the RO in December 2006, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The issue on appeal was also before the Board in September 2007, at which time the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development. After providing the Veteran with a February 2009 VA examination, the RO returned the appeal to the Board, and, in a June 2009 decision, the Board denied the Veteran's claim for entitlement to service connection for a disability of the muscle and joints, claimed as fibromyalgia. Thereafter, she filed a timely appeal of the Board's decision with the U.S. Court of Appeals for Veterans Claims (Court). In February 2010, the Court vacated the Board's decision and remanded the matter for further consideration consistent with a Joint Motion for Remand (Joint Motion). The matter was the remanded by the Board in November 2010 and February 2012. Thereafter, in December 2012, the Board referred the claim to a specialist affiliated with the Veterans Health Administration (VHA) for an opinion. That opinion was received in January 2013, and the opinion is sufficient on which to base a decision at this time. A copy has not been provided to the Veteran or her attorney. However, given that the outcome of this decision is fully favorable to her, there is no prejudice. Finally, a February 2009 VA examination establishes that the Veteran has the signs and symptoms of rheumatoid arthritis and inflammatory arthritis. The VHA specialist noted in his January 2013 opinion that emotional and mental stress in the workplace can aggravate fibromyalgia. He commented further that subsequent to her diagnosis of fibromyalgia, the Veteran had also been diagnosed with rheumatoid arthritis, a condition that can be associated with secondary fibromyalgia. The Veteran has not filed a claim for service connection for this additional disability. However, as the Board is granting service connection for fibromyalgia, to the extent that the Veteran would like to pursue a claim for service connection for rheumatoid arthritis, it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran suffered an injury during a period of active duty for training on November 6, 1999. 2. The total of the evidence supports a finding that the Veteran's complaints of muscle and joint pain has been diagnosed (attributed to) fibromyalgia. 3. The Veteran's diagnosed fibromyalgia is due to or the result of the injury that occurred on November 6, 1999. CONCLUSION OF LAW Fibromyalgia was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. (CONTINUED NEXT PAGE) Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Pursuant to 38 U.S.C.A. § 101(24), "active military, naval, or air service" includes "active duty, any period of active duty for training [ADT or ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training [IDT or INACDUTRA] during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002). Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or for injury incurred during inactive duty training. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137, 1153 (West 2002). Even if a person has had a period of active duty, that service alone does not make the claimant a "Veteran" for the purpose of the application to any period of service which is ACDUTRA or INACDUTRA the presumption of soundness upon service entrance, the presumption of aggravation (of a pre-existing disorder) or the presumption of service incurrence of chronic diseases which are generally applicable to veterans who had active duty. See generally Smith v. Shinseki, 24 Vet. App. 40 (2010); (citing Acciola v. Peake, 22 Vet. App. 320 (2008) and Biggins v. Derwinski, 1 Vet App. 474, 477-78 (1991) (in which the claimants had only ACDUTRA and no active service, as standing for the proposition that without previously established veteran status, the presumptions of service connection and sound condition are inapplicable). Further, in Smith v. Shinseki, the Court found that "in light of the absence of evidence of an examination made contemporaneous with [entry into a period of ACDUTRA] the presumption of sound condition could not apply. Indeed, in cases where a claim is based on a period of active duty for training, the Court held that the presumption of aggravation under [38 U.S.C.A. ]§ 1153 is not applicable. Put another way, "the presumption [sic] of aggravation is not applied to persons whose claims are based on a period of active duty for training." Id. Thus, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See 38 U.S.C. §§ 101(2), (22), (24); 38 U.S.C.A. § 1110; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the active duty for training alone. See Acciola, 22 Vet. App. at 324 . Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Analysis The Veteran contends that she has fibromyalgia, related to an accident that occurred in November 1999 during a period of INACDUTRA. A Statement of Medical Examination and Duty Status (DA Form 2173) establishes that the Veteran was injured on November 6, 1999, which was during a period of INACDUTRA. Specifically, a November 1999 screening note indicates that the Veteran tripped over a construction trailer in the parking lot. Her chief complaint was pain in the chest and shoulder. There was positive left upper 2 - 3 rib tenderness. There was no clavicle pain or deformity. The X-ray report was pending and the Veteran was advised to ice her injury. Another record shows that the Veteran was to refrain from any strenuous physical activity. Personnel records dated in March 2001 show that the Veteran ultimately received a medical separation from service for a total disability due to a diagnosis of fibromyalgia. The private treatment records show numerous diagnoses of fibromyalgia from 2000 to 2005. In a November 2000 letter from Dr. G.H., it was noted that the Veteran was treated for fibromyalgia since February 2000. Dr. G.H. noted that fibromyalgia was a syndrome that had specific criteria set forth by the American College of Rheumatology in 1990. Dr. G.H. explained that the Veteran had the typical features of fibromyalgia including extreme pain, fatigue, and nonrestorative sleep. Records from Dr. R.M. dated from 2003 to 2005 also show notations of fibromyalgia. More recent treatment records, including records from Dr. H.S. dated from 2004 to 2008, and records from Cheyenne Radiology dated from 2006 to 2008, do not reveal any treatment for or diagnoses of fibromyalgia. Specifically, the treatment records from Dr. H.S. only show a notation of a history of fibromyalgia and numerous diagnoses of inflammatory arthritis. A February 2005 letter from the Veteran's private physician, Dr. J.C., shows a diagnosis of fibromyalgia. Dr. J.C. noted that it was impossible to tell what may have triggered the disease process. However, it was possible that the accident while on active duty may have started the disease process. This opinion enjoys limited probative value, however, due to its lack of rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated). It is also speculative in nature. The Veteran also submitted an internet article regarding post-traumatic fibromyalgia in support of her claim. The article included a report that described a case of fibromyalgia developing following a workplace injury. The Veteran was afforded a VA examination in February 2009. The Veteran reported an injury in 1999 during INACDUTRA, where she ran into the hitch of a large military vehicle hitting the center of her chest. She was taken to the Army hospital for evaluation and placed on quarters for 48 hours and light duty for seven or eight days. She claimed that she continued to have lingering substernal pain, and four months later, she experienced an onset of fatigue, widespread pain, and morning stiffness, and was evaluated and diagnosed with fibromyalgia. The examiner also made reference to the Veteran's personal history/reports. The medical evidence of record, to include the aforementioned reports and findings from Drs. G.H., M.H., J.C., and H.S., was also discussed in detail. In particular, it was noted that Dr. G.H. diagnosed and treated the Veteran for fibromyalgia between 2001 and 2003, and that treatment records from Dr. M.H. also included the diagnosis of fibromyalgia. The examiner also observed that the subsequent records from Dr. H.S. and imaging studies reflected diagnoses of rheumatoid arthritis and osteoarthritis. On physical examination, the Veteran identified tenderness at the following identified trigger points of fibromyalgia: Veteran identified tenderness 1 cm on the right side of approximately C3 and tenderness 3 cm to the left side of C3. The examiner noted that the identified tender spots lacked the usual symmetry of fibromyalgia trigger points. The Veteran identified tenderness at the following areas that are not identified as trigger points of fibromyalgia: bilateral mid buttocks, 2 cm distal and 4 cm medial of bilateral patellas. The examiner indicated that the Veteran did not identify the following areas as tender to palpation: inferior to bilateral clavicles, elbows, superior to bilateral scapulas, area of SI joints, inferior and lateral to bilateral buttocks, or proximal to patellas. There was no sternal tenderness (site of injury). Given the findings of the physical examination along with the review of the claims file, the examiner explained that there was insufficient clinical evidence for a current diagnosis of fibromyalgia. The Veteran met the criteria for fibromyalgia as identified by the American College of Rheumatology in relation to chronic widespread pain existing for greater than 3 months. However, the Veteran failed to meet the criteria for fibromyalgia as identified by the American College of Rheumatology in relation to tenderness in at least 11 of 18 characteristic trigger points of fibromyalgia. Signs and symptoms were most consistent with a diagnosis of inflammatory arthritis. The examiner noted that a diagnosis of fibromyalgia requires that no other cause can be found. In this regard, it was observed that the X-rays and assessments for fibromyalgia were normal. The examiner therefore opined that the fibromyalgia was not at least as likely as not related to military service, specifically, the November 1999 injury. The examiner opined that the Veteran's signs and symptoms were more likely related to inflammatory arthritis. In a March 2009 addendum to the examination report, the examiner also opined that it was not at least as likely as not that inflammatory arthritis was related to the Veteran's military service. The examiner added that inflammatory arthritis was triggered by immune response, not by traumatic injury. Subsequent to the February 2009 VA examination, the Veteran, who was previously employed as a Registered Nurse, submitted a statement indicating that the criteria for a diagnosis of fibromyalgia were updated as set forth in a May 2010 issue of Arthritis Care & Research. She explained that under the new guideline, people are considered to have fibromyalgia if they have chronic, widespread pain, as well as severe or frequent problems with sleep, fatigue, depression, anxiety, or trouble with memory and concentration, all of which she had prior to being diagnosed with rheumatoid arthritis, and all other possible explanations for their symptoms have first been ruled out. She pointed out that the most significant change under the new guidelines was that doctors were no longer required to count tender points. The Veteran argued that the new evidence supported her contention that she suffered from fibromyalgia, which had its onset in service. In accordance with the Board's November 2010 remand, the Veteran was afforded another VA examination, with an opinion, in February 2011. The Veteran reported that she ran into a gooseneck hitch on a trailer, after which, she was seen in the emergency room and found to have broken ribs and placed on quarters. She said she was not able to participate in physical exercise and within 4-6 months of the incident, she was seen by a rheumatologist in Greenville, South Carolina and diagnosed with fibromyalgia. Her symptoms at that time were fatigue, depression and widespread pain, as well as stiffness when rising from bed in the morning or after resting. The examiner noted that the Veteran had identified a reference from the American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity, which recommends that the trigger points not be used in diagnosing fibromyalgia. However, the examiner noted that what the Veteran was referring to was provisional criteria, which did not replace The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia criteria that includes the trigger point information. The examiner concluded that the Veteran warranted a diagnosis of fibromyalgia. However, the examiner opined that the Veteran's fibromyalgia was not caused by or a result of an injury sustained in November 1999. The examiner's rationale was that the widespread musculoskeletal pain and 18 tender points important for the diagnosis of fibromyalgia needed to be in place for at least three months, prior to diagnosing fibromyalgia. He noted that on review of the Veteran's service treatment records, she was diagnosed with fibromyalgia in November/December 1999 and that if she had the widespread musculoskeletal pain for a minimum of three months, it would have started in September or October 1999. However, the Veteran's injury was documented as of November 6, 1999, which was less than three months from her original diagnosis. In an April 2011 addendum to the February 2011 VA examination, the examiner clarified that he believed the Veteran did have an active diagnosis of fibromyalgia, but opined that the disability was not related to the November 6, 1999 in-service incident. In rendering his opinion, the examiner noted that doctors do not know the causes of fibromyalgia, but it most likely involves a variety of factors working together, which may include genetics, infections or physical or emotional trauma. He then reiterated his conclusion that the in-service "trailer hitch" incident could not have been the initiating factor for the Veteran's disability because of the timing of the incident and the timing of the diagnosis. Emphasis was placed on the finding that the Veteran needed to have symptoms of widespread pain, both above and below the waist and affecting both the right and left sides of the body, as well as physical findings of at least 11 to 18 tender points, present at a similar level for at least three months prior to being diagnosed with fibromyalgia. The examiner also added that the Veteran's service treatment records did not identify any previous infection, surgery or physical trauma prior to the November 1999 incident. However, the Veteran has consistently reported that after her in-service injury in November 1999, she experienced symptoms of widespread pain and stiffness for a few months, before being diagnosed with fibromyalgia around February 2000. This information is important, as the examiner premised her negative opinion on the fact that the Veteran did not have symptoms of widespread pain for three months prior to her diagnosis. If she was not diagnosed until February 2000, her symptoms would have been present for at least three months. The examiner's opinion reflects no consideration of the Veteran's reports noted above, that she was not diagnosed with fibromyalgia for months after her in-service injury. The Veteran is competent to report what she experienced during and after service. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). As the examiner did not consider all of the Veteran's history or complaints, his negative opinion lacks probative value, and is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board requested an opinion from a VHA specialist in December 2012. The pertinent question in the Board's mind, at that time, was whether the Veteran's fibromyalgia existed prior to her period of INACDUTRA in November 1999, and if so, whether it was aggravated by the November 1999 in-service injury A VHA opinion was received in January 2013. A thorough review of the file was conducted. The VHA specialist noted that he had reviewed the Veteran's October 2010 statement regarding the American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia and the May 2010 American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity. The specialist pointed out that the Veteran, in her October 2010 letter opined that tender points was no longer the means for diagnosing fibromyalgia because of the change in diagnostic criteria. However, the specialist concluded that the Veteran's opinion was not entirely correct. Specifically, he concluded that pain assessment is still part of the May 2010 criteria for fibromyalgia, a chronic disorder with widespread pain, and that the locations tested for the most part are the regions that formed the tender point examination in the 1990 criteria, and there should be at least seven tender areas. He noted further that the Veteran has chronic widespread pain and somatic symptoms characteristic of fibromyalgia and the May 2010 criteria can be used to assess the severity of her fibromyalgia, as well as the response to treatment. With regard to the etiology of the Veteran's diagnosed fibromyalgia, the specialist noted that there was limited information in the available records regarding musculoskeletal problems that the Veteran had prior to the injury in November 1999, during her period of INACDUTRA. She was seen in May 1997 for symptoms of carpal tunnel syndrome and was evaluated for back pain. There was an October 1996 MRI of the thoracic spine done because of a previous injury to the mid-thoracic spine and recent reinjury and continued back pain. The specialist noted further that the medical records did indicate that in November 1999, during her weekend period of INACDUTRA, the Veteran tripped over a construction trailer in the parking lot and ran into a metal pole, which hit the center of her chest and caused several rib contusions. Subsequently, there is a note by Dr. G.H. in February 2000, when she saw the Veteran during a follow-up visit for fibromyalgia. The Veteran was noted at that time to have 9+/10 pain, poor sleep, fatigue, eight tender points, and to be under a lot of stress. The specialist also noted that the Veteran was first diagnosed by Dr. G.H. with fibromyalgia during her first visit with the doctor earlier in February 2000, but there were no records available regarding that visit. The specialist ultimately opined that it is at least as likely as not (50 percent probability or more) that the Veteran's current disability of the muscles and joints, claimed as fibromyalgia, is the result of an injury incurred during her period of INACDUTRA in November 1999. He indicated that although the cause of fibromyalgia is not known, it is recognized that there are certain risk factors for the condition, such as family history of fibromyalgia, physical trauma or injury, infections (e.g. Lyme disease and hepatitis C), stressors (e.g. work, family, life-changing events, and abuse history), and female sex. He added that about one-third of patients with fibromyalgia report the onset of fibromyalgia symptoms following physical trauma sometime in the preceding six months, but he also noted that the Veteran had other risk factors for fibromyalgia, including stress, abuse history, and female sex. According to the specialist, the injury served as a stressor in a patient with other risk factors for fibromyalgia to develop fibromyalgia. He explained further that it is plausible that the Veteran's November 1999 injury may have placed her at risk for developing fibromyalgia by acting as a stressor in a patient who also had other risk factors for fibromyalgia, including stress before and after the November 1999 injury, past abuse history, and female sex. In rendering this opinion, the specialist noted that a diverse group of leading experts on fibromyalgia, members of the Fibrocollective, has found that the natural history of fibromyalgia shows that its symptoms can wax and wane, varying in intensity from day to day and by physical location. Some factors that can worsen fibromyalgia include mental or emotional stress, weather changes, strenuous activity, and sleep problems. Therefore, the specialist concluded that the severity of the Veteran's fibromyalgia was expected to wax and wane during the period of active service after the diagnosis was made. The specialist also pointed out that it is plausible that emotional and mental stress in the workplace can aggravate fibromyalgia. In this regard, the specialist noted that the Veteran had been subsequently diagnosed with rheumatoid arthritis, a condition that can be associated with secondary fibromyalgia. The January 2013 VHA opinion is the only competent medical opinion holding any probative value. The February 2005 private opinion and the February 2011 VA opinion are both flawed for the reasons previously stated. Furthermore, although the February 2009 VA examiner found that the Veteran did not meet the criteria for fibromyalgia, all the other competent medical evidence of record shows that she does meet the criteria for a current diagnosis of fibromyalgia. All of the criteria have therefore been met. A totality of the evidence supports a finding that the Veteran has been diagnosed as having fibromyalgia. There is also un-refuted evidence that the Veteran suffered an injury during a period of ACDUTRA on November 6, 1999. Finally, as noted, there is a medical opinion that links the Veteran's diagnosed fibromyalgia to her period of INACDUTRA. The Board duly recognizes that service connection may only be granted for a disability resulting from an injury incurred during inactive duty training, and that fibromyalgia is more akin to a disease. However, and rather crucially, the VHA opinion clearly established that an in-service injury was the trigger to the Veteran developing fibromyalgia. Such supports a finding of service connection. ORDER Entitlement to service connection for fibromyalgia is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs