Citation Nr: 1312491 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-04 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to September 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Boston, Massachusetts Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the RO before a decision review officer (DRO) of the RO (RO hearing) in November 2010. A transcript of that hearing has been associated with the claims file. The Veteran also testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in April 2012. A transcript of that hearing has been associated with the claims file. During this hearing, the Veteran withdrew his claim for entitlement to compensation under 38 U.S.C.A. § 1151 and also submitted written documentation of this withdrawal at the hearing. Therefore this issue is not in appellate consideration. 38 C.F.R. § 20.204 (2012). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. FINDING OF FACT Affording the Veteran the benefit of the doubt, the probative medical evidence of record shows that his fibromyalgia was proximately due to and the result of his service-connected depressive disorder. CONCLUSION OF LAW The criteria for the establishment of service connection for fibromyalgia have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his current fibromyalgia is due to his service-connected depressive disorder. In his April 2010 notice of disagreement (NOD), the November 2010 RO hearing, and the April 2012 Travel Board hearing, the Veteran reported he had symptoms of fibromyalgia which began after his varicocelectomy surgery in service and had continued since that time. These reported symptoms included fatigue, stomach issues, diarrhea, nausea, gastrointestinal problems and sleep disturbance. The Veteran also testified in both the November 2010 RO hearing and the April 2012 Travel Board hearing that he was currently being treated for fibromyalgia and that he had been told by a medical professional that his fibromyalgia was related to his service-connected depressive disorder. In support of his claim, the Veteran submitted several articles and treatise information regarding fibromyalgia and its relationship to stress and depression. Service treatment reports are absent of any complaints, treatment or findings of fibromyalgia. The March 1980 entrance examination and the September 1984 separation examination reflect no abnormalities upon clinical evaluation and do not indicate any diagnosis of fibromyalgia or related complaints. These reports however, demonstrate complaints and treatment for symptoms which the Veteran and his representative contended may be symptoms of fibromyalgia, including: a sudden onset of body pain and tenderness in the left lower quadrant, diagnosed as rule out appendicitis/viral syndrome in March 1981; fainting and syncopal episodes in April 1981, July 1981 and October 1981; nausea, vomiting and loss of appetite in August 1981; a stomach disorder, diagnosed as anemia secondary to gastroesophageal reflux disorder (GERD) in January and February1982; vomiting and diarrhea, diagnosed as gastroenteritis in February 1982; anemia noted in February 1983; a lump on the neck noted in October 1983 due to a pinched nerve in the back; and loss of weight, treated in June 1984. The post service medical evidence of record, including VA outpatient treatment reports from February 1985 to February 2009 and private medical records from May 2002 to April 2012 reflect that the Veteran was treated by a private physician as early as August 2002 for continued "chronic pain issues." These records reflect that the Veteran was initially diagnosed with fibromyalgia in August 2009 by a private physician. A November 2010 letter by a private physician's assistant, Stacey Panasci, PA-C, working in the Veteran's private physician's office was received. In this letter she reported that the Veteran was a patient in their office and was treated for fibromyalgia. She stated that the Veteran also suffered from depression, which had been linked to fibromyalgia. In a January 2012 VA examination, the Veteran was diagnosed with fibromyalgia. He reported that, since the turn of the century, he experienced various aches and pains, especially as he had done less activity and that, now, on some days, pain was quite severe to the point that he did not go to work. The examiner opined that the claimed condition, in this case fibromyalgia, was less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. In his rationale the examiner pointed to a reference from the Mayo Clinic staff, indicating that doctors did not know the causes of fibromyalgia but it most likely involved a variety of factors working together, including genetics, infections, physical or emotional trauma and post traumatic stress disorder (PTSD). The examiner also discussed a University of Maryland online article which reported that studies indicated higher numbers of severe emotional and physical abuse in patients with fibromyalgia, compared with the general population, suggesting that PTSD or chronic stress may play a strong role in the development of fibromyalgia in some patients. He concluded that, although the University of Maryland reference suggested PTSD was a possible cause of fibromyalgia, the Veteran did not carry that diagnosis. He also noted that he was unaware of family stressors, however, if that was one of the Veteran's problems, it was not a service-connected cause. Therefore, the examiner found that, in his professional opinion, it was less likely than not (less than a 50 percent likelihood) that the Veteran's fibromyalgia was caused by his service-connected depression. In an April 2012 letter, Stacey Panasci, PA-C, again provided a statement indicating that she examined the Veteran and he had been diagnosed with fibromyalgia. She found that this condition could be related to depression, which she knew the Veteran was service-connected for through the VA. She concluded that, in her medical opinion, it was at least as likely as not that the fibromyalgia was secondary to depression. In September 2012, a VA physician was asked to review the evidence in the claims file and provide an opinion regarding the etiology of the Veteran's fibromyalgia. Dr. F.T.N. III, M.D., FACP, FAHA, FAAN, a staff neurologist at a VA medical center provided this opinion based on a review of the claims file and his own expertise. Upon review of evidence in the claims file, Dr. F.T.N. III, initially noted that fibromyalgia was a syndrome, not a specific disease, and there were no diagnostic imaging tests or blood tests to make the diagnosis. He also noted there were no specific findings on physical or neurological examination and there were no typical pathological changes on examination of the nerves, muscles or joints. Rather, Dr. Dr. F.T.N. III reported that the diagnosis was based on a constellation of widespread pain of high severity, lasting greater than three months and, for which, there was no other explanation. He stated that whether fibromyalgia was a distinct disorder or a manifestation of another underlying disorder was controversial and the spectrum of possible underlying disorders ranged from inflammatory arthritic conditions to depression. Referencing Hauser, W JAMA 2009, Dr. F.T.N. III noted that others classified fibromyalgia as a functional somatic syndrome. He opined that there was no data provided to indicate the Veteran's current fibromyalgia was acquired during his active service and there was no relationship between his varicocelectomy and the diagnosis of fibromyalgia. He also found that there was a relationship between depression and fibromyalgia, just as there were relationships between depression and many other diseases, however, this relationship did not imply a cause and effect. Finally, he concluded that, as in symptomatic patients, the depression should be treated. The Board sent the claim's file back to Dr. F.T.N. III in October 2012 to provide a supplemental opinion. In December 2012, Dr. F.T.N. III provided a statement informing the Board that the original request for an opinion requested review by a rheumatologist and that he was a neurologist. He stated that he reviewed the Veteran's chart and rendered an opinion which he had now been asked to clarify. He reported that he thought his original statement was clear and suggested that the claim be re-routed to the rheumatology department, per the original request. In an April 2013 opinion, a VA rheumatologist, Dr. M.C., M.D., provided a supplemental opinion regarding the etiology of the Veteran's current fibromyalgia disability, based on a review of the claims file and his own expertise. He found that it was not at least as likely as not that the Veteran's fibromyalgia had its clinical onset during active service or was related to any in-service disease, event or injury, including: the lump on his neck and pinched nerve; weight loss; varicocele; knee pain; vomiting, diarrhea or dyspepsia; or malaise and weakness. Dr. M.C. also found that it was not at least as likely as not that the Veteran's fibromyalgia was caused or aggravated by his service-connected varicocelectomy. Dr. M.C. did find, however, that it was at least as likely as not that the Veteran's fibromyalgia was caused by and aggravated by his service-connected depression. He explained that if depression was significant enough to cause regular sleep disruptions, ruminations from depression/PTSD, disrupted ability to cope with situations that would be handled well by most people without depression, and he was rendered in a relative neurovegetative torpor, in the sense that he did not pursue regular aerobic activity; then he would suspect highly that the depression was contributing to the development of fibromyalgia syndrome and predisposition towards this insidious change in the central nervous system neurotransmitter function. He also reasoned that, in his experience of seeing lots of patients with fibromyalgia and needing to read somewhat regularly on this to differentiate this from other true rheumatologic diseases, depression and PTSD, if not adequately mollified by counseling, medications, improved sleep and exercise, a significant subset of these patients would eventually take on a clinical syndrome of fibromyalgia. After a careful review of the record and resolving all doubt in the Veteran's favor, the Board has determined, based upon the satisfactory and probative evidence set forth above, that service connection for a fibromyalgia is warranted. The Board notes initially, that the Veteran is service connected for depressive disorder, to which he claims his fibromyalgia is related. The medical evidence of record also demonstrates that the Veteran is currently diagnosed with fibromyalgia. There is also a positive medical opinion of record, relating the Veteran's fibromyalgia to his service-connected depressive disorder. Medical opinions were furnished by VA medical professionals, including the January 2012 VA examiner, Dr. F.T.N. III, a neurologist, in September 2012 and Dr. M.C., M.D., a rheumatologist, in April 2013. The medical opinions were based upon a review of the claims file, the medical expertise of each specialist, and were supported with an adequate rationale. Therefore, these opinions are afforded significant probative value. While the January 2012 VA examiner and Dr. F.T.N. III provided opinions indicating there was no likelihood of a relationship between the Veteran's current fibromyalgia and either his active service or his service-connected disabilities, Dr. M.C. found that it was at least as likely as not that the Veteran's fibromyalgia was caused by and aggravated by his service-connected depressive disorder. Dr. M.C.'s opinion was also supported by the letters provided by the Veteran's private physician's assistant, Stacey Panasci, PA-C, in November 2010 and April 2012 indicating it was at least as likely as not that the fibromyalgia was secondary to depression, although no rationale was provided and it is unclear whether she reviewed any additional medical evidence in the claims file. Therefore, the Board finds that the January 2012, September 2012 and April 2013 VA medical opinions, taken together, place the evidence in relative equipoise and the benefit of the doubt rule will therefore be applied to resolve doubt in favor of the Veteran. Accordingly, on balance, the evidence of record collectively shows that the Veteran's fibromyalgia is proximately due to and the result of his service-connected depressive disorder. Thus, as the evidence supports the Veteran's claim, service connection for fibromyalgia is warranted. 38 C.F.R. §§ 3.102, 3.303 (2012). See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for fibromyalgia is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs