Citation Nr: 1310485 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 04-41 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1966 to January 1970 and from February 1980 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board previously remanded this matter in September 2010 in order to afford the Veteran a VA examination. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The weight of the competent, credible, and probative evidence does not demonstrate that fibromyalgia is related to the Veteran's active military service. CONCLUSION OF LAW The criteria for service connection for fibromyalgia are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008. The letter informed the Veteran of what evidence was required to substantiate her service connection claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter was provided prior to the rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The available service treatment records have been obtained, as well as VA treatment records. Moreover, the Veteran underwent an adequate and probative VA medical examination for her claim in May 2012. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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. 38 C.F.R. § 3.303(d). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In order to prevail on the issue of service connection on the merits, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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 subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As lay person, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that fibromyalgia is related to service. She asserts that, although she was diagnosed with fibromyalgia after service, the initial symptoms and signs of fibromyalgia occurred during her active military service. The Veteran had active duty service from September 1966 to January 1970 and from February 1980 to March 2003. Service treatment records do not reflect complaints or diagnoses of fibromyalgia. Service treatment records reflect that the Veteran complained of painful joints. Service treatment show that in n December 1988, the Veteran indicated that she had muscle pain or cramps, painful joints, and backaches seldomly. The December 1988 physician indicated that the Veteran had "chronic sore muscles." At a five year examination in December 1993, the Veteran reported having swollen or painful joints. In November 2001, the Veteran reported to sick call with complaints of intermittent dizziness with no exacerbating or alleviating factors. After physical examination, she was diagnosed with dizziness, and it was recommended that she undergo a neurological evaluation. A December 2001 neurology consultation report showed that the Veteran was referred for evaluation of intermittent shock-like pains shooting down the right arm associated with activity and intermittent numb feeling traveling down the left arm, shoulder to forearm not associated with activity. The assessment was paroxysmal paresthesias, no evidence of neurological origin. It was noted that the Veteran had some degenerative joint disease of the cervical spine but nothing on examination to suggest nerve compression. A December 2001 rheumatology attending note indicated that the Veteran was seen for complaints of low and upper back pain with occasional paraesthesias of the right or left or both upper extremities. After examination the assessment was more consistent with nonarticular rheumatism, with no evidence by history, examination or laboratory/radiographic studies to suggest an inflammatory musculoskeletal disorder. In February 2002, the Veteran reported to sick call for a follow-up visit for back pain. She also complained of feeling achy and not feeling right. She was diagnosed with fatigue. In November 2002, the Veteran had a telephone consultation and reported a "full feeling," tingling in both arms and dizziness. In December 2002, the Veteran indicated that she had painful shoulder, elbow, or wrist; arthritis, rheumatism, or bursitis; recurrent back pain or any back problem; numbness or tingling; swollen or painful joints; dizziness or fainting spells. Post service VA and private treatment records reflect diagnoses and treatment for fibromyalgia. A private rheumatology record dated in November 2004 reflects that the Veteran was seen for arthritic evaluation. The Veteran reported back pain, aches, stiffness and difficulty walking. The examiner noted that chronic pain syndrome and fibromyalgia were discussed with the Veteran. The form include a section to note fibromyalgia tender points and nothing was noted in that section. A copy of that report received in July 2005 has been annotated. The top of the form includes the words "fibromyalgia/chronic pain" written in pencil and highlighted in green that appears to have been added after the creation of the document. Another copy of the same document submitted in March 2006 does not have that notation. A VA treatment record dated in March 2005 reflects that the Veteran reported that her primary care provider diagnosed her with fibromyalgia. An assessment of fibromyalgia was noted. The Veteran had a VA examination in May 2012. The Veteran reported that she was diagnosed with fibromyalgia at the VA clinic in Savannah and was referred to a local pain clinic. The Veteran reported that she was currently on Cymbalta and functioning well. The VA examiner reported that the Veteran had findings, signs and symptoms attributable to fibromyalgia. The VA examiner indicated that these included stiffness and paresthesias. The VA examiner indicated that the fibromyalgia symptoms were often precipitated by environmental or emotional stress. The VA examiner indicated that the Veteran did not have tender points. The VA examiner opined that the claimed condition is less likely than not incurred in or caused by an in-service injury, event or illness. The VA examiner stated that the Veteran does not have all of the classic findings usually associated with fibromyalgia. The VA examiner stated that the Veteran's walking difficulty could be explained on the basis of her lumbar degenerative disc disease and associated radiculopathy which had been reported. The VA examiner stated that the Veteran also admitted to chronic depression and described issues while in the military and with the need to help two elderly parents until their deaths. The VA examiner stated that the Veteran also had chronic anxiety manifested mainly as being in crowded situations. The VA examiner noted that the Veteran denied having discreet trigger point pain locations which would be suggestive of fibromyalgia and has known lower back issues related to degenerative disc disease. The VA examiner summarized that fibromyalgia in the Veteran is not felt to have developed while on active duty. The Board finds that the weight of the competent and probative evidence is against the claim of service connection for fibromyalgia. The VA medical opinion concluded that fibromyalgia did not develop during active duty service. The Board finds that the November 2004 private rheumatology record is not probative with regard to a diagnosis of fibromyalgia because while it is noted that chronic pain and fibromyalgia were discussed, the document does not include a diagnosis of fibromyalgia. As noted above, one copy of that record that has been submitted does include a notation of fibromyalgia and chronic pain other than in the portion related to the discussion, but those notations were not included in another copy of the same document and those notations were not indications of a diagnosis rendered at the time the document was created. Thus, the Board finds that this evidence is not probative evidence of a diagnosis of fibromyalgia in November 2004. There are no other competent medical opinions of record indicating that fibromyalgia had its onset in service or is otherwise related to service. Furthermore, while the Veteran has asserted that a causal or etiological relationship between fibromyalgia and active service exists, as a lay person she lacks the medical training to provide a competent medical opinion regarding the cause or etiology of the fibromyalgia. Therefore, while the Board has considered and weighed the Veteran's statements as to symptoms that she experienced in service and since service, of which she is competent to report, the Veteran's assertion of a nexus of her currently diagnosed disability to service is afforded no probative value. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For these reasons, as the preponderance of the evidence weighs against finding that fibromyalgia is causally or etiologically related to service, service connection must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for fibromyalgia, and the claim must be denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. (CONTINUED ON NEXT PAGE) ORDER Service connection for fibromyalgia is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs