Citation Nr: 1323641 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 04-36 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for fibromyalgia, also claimed as polyarthralgia and polymyalgia due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active military service from July 1983 to July 1991. He earned a Combat Action Ribbon in the Persian Gulf Theater of Operations. This case arises to the Board of Veterans' Appeals (Board) from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied service connection for fibromyalgia. The Board remanded the case for development in November 2007, September 2009, July 2011, August 2012, and March 2013. The Board notes that in an informal brief dated in June 2013, the Veteran's representative raised a claim for an increased rating for PTSD based on a VA examination report indicating that the PTSD is productive of sleep disturbance. The representative also raised a claim for an increased rating for a back disorder and left hip disorder, along with a claim for a total disability rating based on unemployability. Those matters are referred to the RO for initial adjudication. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not exhibit a disability, described as myalgia, arthralgias, fibromyalgia, fatigue, or sleep disturbance, that had its clinical onset or is otherwise related to active duty. He does not exhibit a qualifying chronic disability from an undiagnosed illness or a chronic multisymptom illness manifested to a compensable degree. CONCLUSION OF LAW A disability described as myalgia, arthralgias, fibromyalgia, fatigue, or sleep disturbance was not caused or aggravated by the Veteran's service, and is not due to an undiagnosed illness or a chronic multisymptom illness incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307. 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist With regard to the Veteran's claim for service connection, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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 the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2003 letter, sent prior to the initial January 2004 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service-connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. A January 2008 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Board notes that, while the January 2008 letter was issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the January 2008 letter was issued, the Veteran's claim was readjudicated in a March 2009 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. The Board notes that the Veteran did not receive separate notice pertaining to the regulations regarding disabilities as due to an undiagnosed illness. However, the March 2013 remand directives specifically delineated the evidence needed to substantiate such a claim, i.e. to show that the Veteran suffered from a chronic undiagnosed illness or other medically unexplained chronic multi-symptom illness resulting from his service in the Persian Gulf War. Moreover, in May 2013, the Veteran submitted a statement contending that he did suffer from undiagnosed joint and muscle pain, unlike the findings made by the April 2013 VA examination. Therefore, it is reasonable to conclude that by his statements, the Veteran had actual knowledge of the criteria necessary to substantiate a claim for as due to an undiagnosed illness. Finally, as the competent and probative medical evidence does not show that the Veteran suffers from fibromyalgia, and also shows that all of his reported symptoms have been associated with diagnosed disabilities, and in light of the above notice and knowledge, the Board finds that no further development is necessary and no prejudice would result in adjudication of the Veteran's claim. Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA treatment records, and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. Additionally, he was afforded VA examinations in June 2003, October 2010, January 2012, October 2012, and April 2013 in order to adjudicate his service connection claim. The Board finds that the VA examinations obtained are adequate to decide the Veteran's claim because they offer clear findings in relation to the conclusions reached. There is no indication that the examiners lacked the necessary experience to conduct the examinations, and the conditions examined did not necessitate examination by a specialist. Therefore substantial compliance has been accomplished with respect to the previous remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he currently suffers from fibromyalgia, or joint and muscles aches and fatigue, as well as polymyalgias and polyarthalgias, and sleep disturbance that are due to an undiagnosed illness related to his service in the Persian Gulf war. He also contends that such symptoms are due to chemicals he was exposed to on the Kuwait/Iraq border and/or due to Anthrax injections that he was given. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f); 38 C.F.R. § 3.317(d). The Veteran's military records document that he served in Southwest Asia during the Persian Gulf War. Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834 -36 (Dec. 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995-97 (2010); 76 Fed. Reg. 41696-98 (July 15, 2011). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records reflect that the Veteran suffered from pain in his feet, ankles, both hips, both knees, and low back. However, the records do not reflect findings or diagnoses of fibromyalgia, or myalgia or athralgias, or other symptoms, that were medically unexplained. For example, in September 1986, the Veteran was diagnosed with myalgias, left forearm, after he fell and injured his arm. In June 1986, he suffered right knee pain diagnosed as a knee contusion due to injury. In January 1989, left ankle swelling was diagnosed as fracture or a sprain due to injury. To that extent, the Veteran's foot disabilities, hip disabilities, knee disabilities, and low back disability are currently service-connected. Post-service treatment records reflect that in February 2002, the Veteran was noted to have bilateral hip degenerative arthritis and plantar fasciitis. An April 2003 VA psychiatric note reflects that the Veteran believed he had fibromyalgia. Thus, he was given an Axis III diagnosis of rule out fibromyalgia. A June 2003 VA Gulf War examination reflects the Veteran's report that he had possibly been treated for fibromyalgia in the past. He had degenerative joint disease in the hips, knees, and back. He had been treated with Celebrex and was to start steroid shots. He was diagnosed with degenerative joint disease of the hips, knees, and back. No other unexplained symptoms were identified. On October 2010 VA examination, the Veteran reported several aches and pains. It was noted that his psychiatrist thought he might have fibromyalgia, but had not examined him. There was no evidence of a diagnosis of fibromyalgia or a connective tissue disorder. He was to be seen by a local rheumatologist in November 2010. The diagnosis was no evidence of fibromyalgia. He was noted to have a normal complete blood count and that the rheumatoid antibody was less than 20 which was normal. There was no clinical evidence of fibromyalgia. Concurrent VA examinations diagnosed the Veteran with bilateral pes planus, bilateral plantar fasciitis, bilateral heel spurs, myofascial low back pain, bilateral mild degenerative joint disease of the hips, bilateral knee patellofemoral syndrome, no ankle pathology, and bilateral inferior heel or calcaneal spurs. An August 2010 private record demonstrates that the Veteran had all over joint pain for a long time. He had taken Iburophen but it had not been working. He complained of polyarthralgias and polymyalgias that were getting worse. He had been seen by the VA but a Gulf War examination had been within normal limits. He had tick bites in the past but denied many other symptoms such as chest pain, dizziness, or shortness of breath. A brief physical examination resulted in the diagnosis of polyarthralgias and polymyalgias. Laboratory studies did not show evidence of fibromyalgia. On January 2012 VA examination, it was noted that a complete blood count had shown no chronic inflammatory pattern. He had sleep problems and was found to have obstructive sleep apnea and was being treated with a CPAP machine. He reported achiness in various areas. The examiner did not see any specific signs or symptoms specifically attributable to fibromyalgia. There was no evidence of muscle weakness. He had paresthesias attributable to a recent back injury on the job. He had some lower cervical pain. He had achiness and chondromalacia in the knees. On October 2012 VA examination, the examiner found no signs or symptoms of fibromyalgia. He was noted to have bilateral elbow and arm pain, neck and low back pain, fatigue, sleep disturbance, paresthesias of the hands, headaches, depression, and anxiety. However, there were underlying conditions that were most likely the cause for those symptoms, such as his low back injury, sleep apnea, and posttraumatic stress disorder, as well as carpal tunnel syndrome. Because fibromyalgia was diagnosed in the absence of other causes of the symptoms, he did not meet the criteria for that diagnosis. On April 2013 VA Gulf War examination, physical examination was negative for signs or symptoms of fibromyalgia. With regard to his feet, the Veteran reported that he was diagnosed with flat feet in 1983 and had intermittent moderate foot pain. He reported that he had pain in his feet after jumping in the military. He had pain in the soles of his feet. There were no other signs and symptoms of the feet not related to his plantar fasciitis or flat feet. With regard to his ankles, he reported that he had twisted his right ankle in 1985 and again a few years later. He had intermittent pain along the medial aspect of the right ankle. He reported also having shin splints. With regard to his back, he reported that he injured his back when playing football in service. He now had constant low back pain. Heat and pain medication helped. There were no neurological abnormalities. His arthritis was noted. With regard to his hips, he reported having bilateral hip pain after separation from service. He had fractured in his left hip at work. He still had left hip pain even after a total hip replacement. His right hip pain was constant. With regard to his knees, he reported that he began having knee pain while in service. His knee pain was stiff along the medial and lateral aspect of the knee. Physical examination of the affected joints did not reveal other, unaccounted for symptoms, as none were stated by the VA examiner at anytime during the examination. The examiner then reviewed the claims file and offered the following opinions. The examiner explained that the Veteran's fatigue and sleep disturbance were most likely due to his sleep apnea which he used a CPAP machine to treat. Sleep apnea was most commonly caused by anatomic abnormalities of the pharynx and obesity. His fatigue was also most likely due to his PTSD. Thus, the symptoms were not related to service. The examiner concluded that the Veteran did not suffer from fibromyalgia. The examiner found that all of the Veteran's joint symptoms were due to diagnosed disabilities, as each joint ache, in his hips, knees, and ankles, were most likely due to the diagnoses mentioned in the examination. Accordingly, the Veteran' symptoms were all attributed to known clinical diagnoses and there was no evidence of any other medically unexplained chronic multi-symptoms illness resulting from his service in the Persian Gulf War. In May 2013, the Veteran stated that he did have diagnoses of polyarthralgias and polymyalgias that were not mentioned in the examination, and that he had discussed his muscle and joint pain with his VA physicians. He was taking Meloxicam. He had reported to his psychiatrist that his conditions were becoming worse. He felt that the VA examiner had related all of his undiagnosed symptoms to his PTSD and sleep apnea which he felt was not the case. In this case, the Board finds that the preponderance of the evidence is against a claim for service connection for fibromyalgia because it has been repeatedly and affirmatively found, through physical examination and lab testing, that the Veteran does not suffer from fibromyalgia. In that regard, the Board notes that in the absence of proof of a present disability, there can be no valid claim, including under the provisions allowing service connection based on an undiagnosed illness. See 38 C.F.R. § 3.317; Brammer v. Derwinski, 3 Vet. App. at 225. Furthermore, arthralgias and myalgias are joint and muscle pain. Unless there is compensable limitation of function, service connection is not warranted, and such was not reported by the VA examiners who all reported no objective findings other than those related to already diagnosed disabilities, including those for which the Veteran is currently in receipt of service connection. In other words, although the Veteran does exhibit pain in the hips, back, knees, and feet, those symptoms have all been attributed to clinical diagnoses, as stated on VA examination and as noted in the record. There remains no other medically unexplained chronic multisymptom diagnosis not already attributed to a known clinical diagnosis. The April 2013 VA examiner, as well as the other VA examiners, found no other unaccounted-for symptoms of joint or muscle pain. Thus, there is simply no objective evidence at this time of any other chronic myalgia/arthralgia disability that has manifested to a compensable degree. See 38 C.F.R. § 4.71a, Diagnostic Codes 5000-5297 (2012). With regard to the August 2010 treatment record showing a diagnosis of polyarthralgias and polymyalgias, the Board finds that diagnosis to be unclear and unsubstantiated. First, the diagnoses are general, as was the examination itself, as it is not clear whether the physician was generally listing the Veteran's symptoms or whether he was offering diagnoses that were considered to be independent from his other diagnosed disabilities that affect multiple joints. Secondly, those diagnoses were not confirmed on more thorough testing, such as on repeat VA examination. The treatment record includes a cursory physical examination and does not rule out other etiologies, such as due to a tick bite. Thus, it is entirely not clear whether the physician was stating that the Veteran suffered from polyarthralgias and polymyalgias due to an undiagnosed illness or a chronic multi-symptom illness, or whether the examiner was simply documenting that the Veteran was suffering from joint and muscle pain due to his variously diagnosed joint disabilities. The Board affords the treatment record less probative value than the other evidence of record because the VA examinations and VA treatment records, dating before and after 2010, do not show any evidence of joint or muscle pain that has been unaccounted for by a diagnosis. With regard to the Veteran's fatigue and sleep disturbance, the April 2013 VA examiner related those symptoms to the Veteran's sleep apnea and PTSD. The Veteran has stated that he experiences sleep disturbance when receiving counseling, and he has also stated that his sleep apnea is better when using a CPAP machine. Despite the Veteran's contentions otherwise, there is no indication that he suffers from sleep disturbance or fatigue due to an undiagnosed illness. Accordingly, the Board finds that the Veteran's reported symptoms, including fatigue, sleep disturbance, and multiple joint and muscle pain, have all been attributed to diagnosed illnesses and do not meet the criteria to be considered chronic multi-symptom illnesses. He also does not currently have any qualifying chronic disability. Moreover, none of this symptoms have been shown to be directly related to his service, as he did not display such symptoms in service and there is no medical nexus relating them directly to his service outside of his already diagnosed and service-connected joint disabilities. The same is the case for his claim that his symptoms are related to Anthrax injections or chemicals. On VA examination, his symptoms were all related to diagnosed illnesses and disabilities that were not considered to be related to his service. Moreover, he has only offered very conclusory statements with regard to those latter etiologies, and has provided no statements as to what symptoms or disabilities the injections or chemical exposure caused or aggravated. Thus, the Board finds little probative value to those contentions in light of the VA examination opinions that find that his symptoms are unrelated to his service. The Board notes that the Veteran has contended on his own behalf that his current symptoms of joint and muscle pain, and fatigue and sleep disturbance are related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's symptoms of joint and muscle pain, and fatigue and sleep disturbance and any instance of his military service or a service-connected disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service complaints and his current manifestations, the Board accords his statements little probative value, as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). As stated above, although the Veteran is competent to state that he has experienced symptoms of joint and muscle pain, and fatigue and sleep disturbance following his service and that they are due to an undiagnosed illness, the Board finds these statements are outweighed by the medical opinions of record. Absent necessary competent evidence demonstrating that the symptoms of joint and muscle pain, and fatigue and sleep disturbance are related to service or to an undiagnosed illness, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for fibromyalgia, also claimed as polyarthralgia and polymyalgia due to undiagnosed illness. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for fibromyalgia, also claimed as polyarthralgia and polymyalgia due to undiagnosed illness, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs