Citation Nr: 1325265	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  11-00 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a left knee disorder.

2.  Entitlement to service connection for fibromyalgia, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Hancock, Counsel





INTRODUCTION

The Veteran served on active duty from March 1990 to August 1995.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  


FINDINGS OF FACT

1.  There has been no demonstration by competent medical evidence, or competent and credible lay evidence, that the Veteran has a left knee disability that is related to active duty.  

2.  The Veteran does not have a current diagnosis of fibromyalgia during the appeal period.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a left knee disorder have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012).

2.  Fibromyalgia, including as due to undiagnosed illness, was not incurred in or aggravated during active.  38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show.

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Appropriate notice was provided in May 2008.

The duty to assist the Veteran in the development of the claims has also been met.  VA obtained service treatment records, post-service VA and private medical treatment records.  While the Veteran claimed in August 2009 that he was being treated at the Iron Mountain VA Medical Center (VAMC) (see August 2009 VA Form 21-4138), the RO informed him as part of the December 2010 Statement of the Case (SOC) that a search for such records was unsuccessful.  Review of "Virtual VA" (A VA electronic-database) by the Board also shows that no such medical records are of record.  The Veteran was afforded a VA examination in September 2008.  The Board finds that the VA examination (and included nexus opinion) is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record.  The examination report/opinion also is shown to have provided adequate medical information/opinions needed to adjudicate the affected claims.  

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).  

Contentions

As part of a VA Form 21-526, received in March 2008, the Veteran sought service connection for, in pertinent part, a left knee disorder and fibromyalgia.  The Veteran essentially contends that he presently has a left knee disorder as a result of his active military service, and that he also has fibromyalgia due to, at least in part, as a result of his exposure to Gulf War environmental hazards.  

Laws and Regulations

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a "chronic disease" in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic disease" became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307 . The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013).  The Veteran is not here diagnosed with a disorder listed in 38 C.F.R. § 3.309(a).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as arthritis, if the disease became manifest to a compensable degree within the year after active service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).  

With regard to undiagnosed illnesses, a statutory presumption exists for chronic disabilities resulting from an undiagnosed illness which became manifest either during active 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, 2011, confirmed by objective indications.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(2)(ii).  Specifically, in order to establish entitlement to service connection under section 1117, the evidence must show that (1) the appellant is a Persian Gulf veteran who (2) exhibits objective indications; (3) of a chronic disability; (4) which became manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or "to a degree of 10% or more not later than [September 30, 2011]"; and the evidence must show "that (5) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis."  Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004).

With regard to the presumption of service connection for certain disabilities occurring in Persian Gulf veterans, a "qualifying chronic disability" includes fibromyalgia. 38 C.F.R. § 3.317(a)(2)(i)(B)(1) . 

As to whether the appellant is a Persian Gulf veteran, the record shows that he served on the U.S.S. Nimitz (the dates of such service are not of record; however, the Veteran's DD 214 shows three years and one month of sea service), and that he received the Southwest Asia Service Medal.  And, Naval records show that the criteria for the award of the Southwest Asia Service Medal includes service between August 2, 1990, and November 30, 1995, in the Persian Gulf, Red Sea, Gulf of Oman, Gulf of Aden, and that portion of the Arabian Sea that lines north of 10 degrees N. latitude and west of 68 degrees E. longitude.  Therefore, the Board finds that the Veteran meets the threshold criteria to be considered a Persian Gulf veteran.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In adjudicating a claim, the Board must assess the competence and credibility of the veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, at 1337.  However, such lack of contemporaneous evidence is for consideration in determining credibility.

Factual Background

The service treatment records show that examination of the Veteran's left knee was normal in the course of examinations conducted in February 1990 (enlistment) and June 1995 (physical evaluation board -- PEB).  He did complain of occasional knee swelling and pain in the course of his June 1995 PEB examination.  A November 1992 emergency care and treatment record shows the Veteran was seen for complaints of left knee pain; left knee tendonitis was diagnosed.  A July 1995 emergency care and treatment record shows the Veteran was seen for complaints of left knee pain and swelling; left knee pain ("no obvious injury") was diagnosed.  X-ray examination was negative.  A follow up visit report dated later in July 1995 shows a diagnosis of probable medial collateral ligament strain/medial meniscus injury.  The Veteran's service treatment records also include several reports of back pain complaints and clinical findings, such as muscle strain.  A March 1995 health record includes a diagnosis of fibromyalgia and myofascial pain syndrome.  

Post service medical records associated with the Veteran's claims file include private medical records dated in 2002 and 2003.  None of these include either references to complaints relating to, or diagnoses pertaining to, the Veteran's left knee or to fibromyalgia.  

A September 2008 examination report shows that the examiner commented on the Veteran's service treatment records which showed he was treated for his left knee in 1992, and that X-ray examination was normal.  A post service history of working in an auto body shop was noted, where the Veteran preformed heavy lifting and stood on concrete floors.  Arthritis was not present.  In the course of the examination X-ray examination of the left knee showed normal findings.  The examiner supplied a diagnosis of status post left knee sprain.  The examiner determined that it was less likely than not that the Veteran had a left knee disorder which was related to his military service.  As rationale for this supplied opinion, the examiner commented that the Veteran's medical history, examination and test findings, records and medical literature were all reviewed.  It was again mentioned that arthritis was not found on X-ray examination.  The Board notes that the Veteran in January 2011 mentioned that he was not afforded an X-ray examination of his knee in the course of the examination.  See VA Form 9.  The examiner conclude by stating that the Veteran's knee sprain was temporary and resolved, and that the examination was negative.  

As concerning the instant fibromyalgia claim, the examiner pointed out that while the Veteran had a present diagnosis of mechanical thoracic back syndrome which was related to his military service (service connection was later granted for this disability in November 2008), he did not meet the criteria for fibromyalgia.  He added that fibromyalgia was not found in the course of the examination.  The examiner concluded by stating that other than some mild tenderness on firm palpation the back examination was negative.  

Analysis

The only medical opinion to address causation is that offered by the September 2008 VA examiner who concluded that the Veteran did not have a current left knee disability which was due to service; a supporting rationale was offered.  The examiner, as to the Veteran's claim regarding his claimed fibromyalgia, opined that this disorder did not exist.  To the extent the Veteran asserts his currently claimed left knee disorder and fibromyalgia are due to service, the Board finds that given the particular facts of this case, his claimed conditions could have multiple causes and are not disabilities for which a lay opinion is competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  

While the Veteran has not explicitly contended that symptoms relating to either of his two presently-claimed disorders have been constant since his military service, the post service medical records clearly show this to not be the case.  




The Board also finds that service connection for fibromyalgia is not warranted.  While the Veteran has complained of having such a disorder, there is no current diagnosis of fibromyalgia during the appeal period.  Moreover, the September 2008 VA examiner indicated that no diagnosis of fibromyalgia could be made.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  As the evidence fails to demonstrate a diagnosis of fibromyalgia during the appeal period, the Board finds that, as there is no current disability of either disorder, service connection is not warranted.

The Board recognizes the Veteran's assertions that he has a left knee disability and fibromyalgia related to his military service.  However, as a layperson, the Veteran is not competent to opine on medical matters such as a diagnosis or etiology of any medical diagnosis.  The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter.  In this regard, the diagnosis of specific left knee pathology and fibromyalgia requires specialized testing and interpretation of such results.  Accordingly, the Veteran's lay statements are not competent to render a diagnosis of either a left knee disorder or fibromyalgia.  See Davidson; Jandreau; see also 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).



Therefore, the Board finds that the probative evidence of record is against the Veteran's claims for service connection for a left knee disorder and fibromyalgia and such claims 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 claims of entitlement to service connection for a left knee disorder and for fibromyalgia.  As such, that doctrine is not applicable in the instant appeal, and his claims must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a left knee disorder is denied.

Entitlement to service connection for fibromyalgia is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs