Citation Nr: 1328730	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  05-26 134	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 

INTRODUCTION

The Veteran had active military service from June 1989 to March 1992, to include service in the Southwest Asia Theater of Operations.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The Veteran testified before a Veterans Law Judge in May 2008 at a hearing conducted via videoconference.  A transcript of the hearing is of record.  The Veterans Law Judge who conducted the May 2008 hearing is no longer employed by the Board.  Pursuant to 38 C.F.R. § 20.717, the Veteran was offered the opportunity to testify at another hearing.  See September 2011 letter.  The Veteran responded in September 2011 that she does not wish to have another hearing.  As such, the Board will proceed based on the evidence of record.

This case was last brought before the Board in March 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her claim, to include providing the Veteran with a VA examination.  The case is once again before the Board for appellate consideration of the issue on appeal.

In March 2012, the issues of entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness, and a disability of the bilateral first toes were also on appeal.  The Board remanded the claims, and in November 2012, the RO granted service connection for a left knee disorder, and osteoarthritis of the right and left great toes. 


FINDINGS OF FACT

1.  The Veteran served in the Southwest Asia theater of operations from June 1989 to March 1992.

2.  The Veteran's does not have fibromyalgia; her joint pain is etiologically related to her service-connected disabilities.


CONCLUSION OF LAW

The criteria for service connection for fibromyalgia, to include as due to an undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Stegall Considerations

As noted above, the Board remanded this matter on several occasions.  In August 2008, October 2009, and March 2012, the Board instructed the RO/Appeals Management Center (AMC) to afford the Veteran additional VA examinations.  Pursuant to the Board's remands, the Veteran was provided VA examinations in June 2009, January 2010, with an addendum dated in July 2011, and April 2012, and her claims were readjudicated in a November 2013 Supplemental Statement of the Case (SSOC).  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 

Duties to Notify and Assist

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements.  As to the claim for service connection for fatigue and drowsiness, in correspondence dated in July 2003, May 2006, and January 2010 the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The claim was subsequently readjudicated in various SSOC's, most recently in November 2012.  See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case).  The January 2010 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  All identified and available treatment records have been secured.  The Veteran's service treatment records and post-service medical records are in the claims folder.  Furthermore, the Veteran was provided multiple VA examinations during the appeal.  Although the Board previously determined that earlier examination reports were inadequate, she was most recently provided addendum reports to the previous examination reports.  Cumulatively, these examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and her representative have not contended otherwise.  Additionally, the Veteran presented testimony in support of her claim before an Acting Veterans Law Judge, and the hearing addressed the elements of the claims and the evidence needed to support the claims.  See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010).  Thus, the duties to notify and assist have been met.

Analysis

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

In order to establish service connection for the claimed disorder, 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) 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).

In order to show 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, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.'  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Board observes that the record reflects that the Veteran served in Southwest Asia from June 1989 to March 1992.  Accordingly, she is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation, and service connection may also be established under 38 C.F.R. § 3.317.  Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a)(1) (2012)).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for 'direct service connection,' there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5) (2012); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A 'medically unexplained chronic multisymptom illness' means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.'  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii) (2012).

'Objective indications of chronic disability' include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3) (2012).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b) (2012).  For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4) (2012).

The Veteran essentially contends that she has fibromyalgia due to service, specifically due to her service in the Gulf War.  However, at no time has the Veteran had a diagnosis of fibromyalgia. 

In a June 2009 VA examination, the Veteran denied any diagnosis of fibromyalgia.  She complained of fatigue, joint pains (specifically her big toes, left ankle, and knees) and depression.  After a physical examination, the examiner determined there was no diagnosis of fibromyalgia by history or on physical examination.  

Based on the evidence, the Board finds that service connection for fibromyalgia is not warranted.  As an initial matter, the Board notes that all of the medical evidence is clear that the Veteran does not meet the criteria for a diagnosis of fibromyalgia to warrant a grant of presumptive service connection as a qualifying chronic disability.  See 38 C.F.R. § 3.317 (a)(2)(i) (2012).

Additionally, the VA examiners have determined the Veteran's joint pains are not manifestation of undiagnosed illness or a medically unexplained multi-symptom illness.  The symptoms have been attributed to various conditions such as ankle, knee, and toe disabilities for which the Veteran is separately service-connected.  While the Veteran also complained of fatigue and depression during the June 2009 VA examination, the Board notes the Veteran is also service connected for depressive disorder and chronic fatigue as due to undiagnosed illness. 

The Board also finds that service connection for fibromyalgia is not warranted on a direct theory of entitlement.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  As demonstrated above, the most probative medical evidence of record indicates that the Veteran's does not have fibromyalgia.  Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  'In the absence of proof of a present disability, there can be no valid claim.' Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the competent medical evidence of record does not indicate a diagnosis of fibromyalgia in the record, to include any time during the appeal period (the Veteran filed her claim of entitlement to service connection in September 2008).  McClain v. Nicholson, 21 Vet. App. 319 (2007).

The Board finds that the VA examination report is competent, credible, and highly probative as a whole since it was based on a thorough review of the Veteran's medical records, reflects an evaluation of the Veteran, and cites to relevant medical principles.  The opinion is also consistent with the other evidence of record and is supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches).

The Veteran has submitted no competent medical evidence contrary to the June 2009 VA opinion.  The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of her claim; she has not done so.  See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits).

Indeed, there is no medical evidence of record showing that the Veteran has a current fibromyalgia diagnosis or undiagnosed joint pain due to service.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Duenas v. Principi, 18 Vet. App. 512, 520 (2004).  Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, in this case, assertions as to whether the Veteran's symptoms represent a diagnosis or were due to service concern medical concepts rather than direct observation.  But see Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins).  There is nothing in the record to suggest that the Veteran or her representative have the appropriate training, experience, or expertise to render a complex medical opinion on this matter.  See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness is denied. 



____________________________________________
A. C. MACKENZIE 
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs