Citation Nr: 1331037 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-14 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for neck pain other than fibromyalgia. 3. Entitlement to service connection for a thoracic and lumbar spine disability other than fibromyalgia. 4. Entitlement to service connection for a bilateral shoulder disability other than fibromyalgia. 5. Entitlement to service connection for bilateral leg pain other than fibromyalgia. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone Krembs INTRODUCTION The Veteran served on active duty from January 1989 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and April 2005 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims enumerated above. In April 2007, the Veteran testified before the Board at a hearing that was held via videoconference from the RO. In a September 2007 decision, the Board denied the Veteran's claims. The Veteran appealed the decision denying the claims to the United States Court of Appeals for Veterans Claims (Court). In a July 2009 Order, the Court remanded the claims to the Board for readjudication in accordance with a Joint Motion for Remand. In December 2009, the Veteran submitted correspondence to the Board indicating that she wished to present additional testimony before the Board via a hearing at her local RO. In January 2010, the Board remanded the claims for the purpose of scheduling the Veteran for an additional hearing before a Veterans Law Judge (VLJ). In July 2010, the Veteran presented testimony before a different V LJ at a hearing that was held at the RO. A transcript of that hearing is of record. In May 2011, the Board contacted the Veteran and informed her that as the law required that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal, and because she had testified concerning her claims before two different VLJs, the Board was legally required to assign a third VLJ to decide the issues, as a proceeding before the Board may be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C.A. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2010); see Arneson v. Shinseki, 24 Vet. App. 379 (2011). She was also informed that she had the option of having an additional hearing held before a third VLJ who would be assigned to the panel to decide her appeal. In correspondence received from the Veteran's representative in June 2011, the Veteran elected to waive her right to an additional hearing before the third VLJ on the panel deciding her appeal. As all obligations related to the Veteran's right to present testimony before the Board have been satisfied, the Board will proceed with a decision on the merits of the Veteran's claims. FINDINGS OF FACT 1. Fibromyalgia had its clinical onset during active service. 2. The Veteran's neck pain, thoracic spine pain, bilateral shoulder pain, and bilateral leg pain are associated with and encompassed by the manifestations of her fibromyalgia; there are no other disabilities of the neck, thoracic spine, lumbar spine, shoulders or legs that are unrelated to her service-connected fibromyalgia. 3. A mild compression deformity of the T12 vertebra and mild bulging of the L5 vertebra first manifested many years after service and are not related to her service or to any aspect thereof, including fibromyalgia. CONCLUSIONS OF LAW 1. Fibromyalgia was incurred in active service. 38 U.S.C.A. §§ 1131 and 1154(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. A neck disability (separate and distinct from service-connected fibromyalgia) was not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A thoracic spine disability (separate and distinct from service-connected fibromyalgia) was not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. A lumbar spine disability (separate and distinct from service-connected fibromyalgia) was not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. A bilateral shoulder disability (separate and distinct from service-connected fibromyalgia) was not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 6. A bilateral leg disability (separate and distinct from service-connected fibromyalgia) was not incurred in or aggravated by the Veteran's service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that although she was not diagnosed with fibromyalgia until after her separation from service, she experienced signs and symptoms of fibromyalgia during service, such that her fibromyalgia may be found to have had its clinical onset during her period of active service. Alternatively, she asserts that as a result of her active service she developed neck pain, a thoracic and lumbar spine disability, a bilateral shoulder disability, and bilateral leg pain, each separate and apart from fibromyalgia, such that she is entitled to service connection for each of these disabilities. In July 2010 testimony before the Board, the Veteran explained that during basic training she began to experience diffuse body pain. Her complaints were eventually attributed to the ovarian cancer with which she was diagnosed in April 1989. She reportedly was told that her pain would subside once she was treated for the malignancy. Her pain, however, did not resolve, and she continued to experience near constant generalized and specific joint pain after her separation from service. For these reasons, she asserts that she is entitled to service connection for her claimed disabilities. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify a claimant of the evidence that is necessary, or would be of assistance, in substantiating his or her claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Further, VA must review the information and the evidence presented with the claim and 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, notice was provided with respect to the claim for service connection for fibromyalgia in November 2003, prior to the initial adjudication of her claim in November 2004. Notice with respect to the remaining issues was provided to the Veteran in December 2004, prior to the initial adjudication of these issues in April 2005. The content of the notice letters fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is in favor of the claim for service connection for fibromyalgia, and the preponderance of the evidence is against the claims for service connection for the remaining issues. As such, any questions as to the appropriate disability rating or effective date to be assigned for the remaining issues are moot, and the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). In next addressing whether VA satisfied its duty to assist the Veteran with respect to her claims, the Board notes that pertinent records from all relevant sources identified by her, and for which he authorized VA to request, have been associated with the claims file. 38 U.S.C.A. § 5103A . The Veteran's service treatment records are also in the claims file. Additionally, VA treatment records are in the claims file. VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified. 38 U.S.C.A. § 5103A(b)(1) (West 2002). She has not identified any other treatment records aside from those that are already of record. Thus, VA has made every reasonable effort to obtain all records relevant to the Veteran's claims. VA is required to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Veteran was provided with an examination with respect to her claims in December 2011. The examination was inadequate, insofar as the examiner failed to consider the Veteran's lay testimony regarding the onset of fibromyalgia symptoms in service. In effort to remedy the inadequacies in the December 2011 examination, in December 2012 the Board requested an expert medical opinion from a specialist in rheumatology. The January 2013 opinion provided by the private rheumatologist was comprehensive and thoroughly addressed the Veteran's report of the onset of her symptoms and the course of her disease. The private rheumatologist also thoroughly addressed the Veteran's alleged disabilities of the neck, thoracic and lumbar spine pain, bilateral shoulders, and bilateral leg pain, and clearly explained why he did not feel that diagnoses separate and apart from fibromyalgia were warranted for each of these disabilities. To the extent that MRI reports indicated a mild compression deformity of the T12 vertebra and mild bulging of the L5 vertebra, the rheumatologist explained that mild compression deformities were generally asymptomatic and that mild bulging disks were extremely common and not very specific for indicating pain or resulting pathology. As such, it was less likely than not that the thoracic and lumbar spine pain of which the Veteran complained was related to these findings, and it was more likely than not that the pain was associated with her fibromyalgia. As the January 2013 expert medical opinion corrected the inadequacies in the December 2011 VA examination, the Board concludes that there is no further action to be undertaken with respect to examinations in order to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Finally, the record reflects that at each of the Board hearings, the VLJs before whom the Veteran testified set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims for service connection, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a VLJ has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. Based upon the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claims. Service Connection Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). As noted above, the Veteran asserts that she began to experience diffuse body pain associated with fibromyalgia during basic training. Her service treatment records, however, are silent as to any complaints of diffuse body pain or any complaints specifically related to the cervical, thoracic, and lumbar spine segments, shoulders, or lower extremities. Post-service clinical records demonstrate that the Veteran complained of leg pain in January 1990, lower back pain in March 1990, upper back and neck pain in May 1990, and knee and shoulder pain in June 1990, with frequent complaints of pain in each of those areas thereafter. A January 1990 bone scan was negative for any abnormalities. March 1990 X-ray examination of the lumbar spine and pelvis was also negative for evidence of fracture, dislocation, bone, or joint disease. She was assessed with lumbar spondylosis. Subsequent X-ray examination of the spine, shoulders, and knees were similarly negative for any evidence of abnormalities. In 1992, the Veteran's complaints were determined to be consistent with a diagnosis of rheumatoid arthritis. She continued to be treated for rheumatoid arthritis until March 2003, when she underwent a complete neurological work-up which was negative for rheumatoid factor. Given her complaints of chronic generalized pain, fatigue, insomnia, and irritable bowel syndrome, her diagnosis was at that time changed to fibromyalgia. Since March 2003, she has continued to be treated for fibromyalgia. In addition to being treated for fibromyalgia, the Veteran has been treated for back pain diagnosed as mild bulging of the L5 vertebra with no definite disc herniation by CT scan in July 2003 and a mild compression deformity at T12 by MRI in March 2004. Clinical records dated in April 2004 show that the Veteran reported having fallen earlier that month, and that her back pain had increased in severity since the April 2004 fall. Records dated as early as January 1991 show that the Veteran reported a history of falling as a result of her legs giving out. Given the Veteran's contention that her 1992 diagnosis of rheumatoid arthritis was in error, and that the appropriate diagnosis was fibromyalgia, the Board remanded the claim in August 2011 for the purpose of scheduling her for a VA examination in order to determine whether the 1992 diagnosis of rheumatoid arthritis was erroneous, and whether the Veteran had any underlying pathology, including arthritis of the cervical, thoracic, or lumbar segments of the spine, of the shoulders, or of the legs, which was unrelated to fibromyalgia, and, if so, whether that current pathology had its onset during the Veteran's period of service. The Veteran underwent the requested examination in December 2011, as a result of which she was diagnosed with fibromyalgia. In addressing whether her fibromyalgia was related to her active service, the examiner determined that it was not, as there was "no documentation in the C-file that the Veteran had any symptoms indicative of early onset fibromyalgia during military service." The examiner further determined that none of the Veteran's current complaints of pain were related to any specific diagnoses of arthritis in the cervical, thoracic, or lumbar spine segments, or bilateral shoulders, knees, hips, or ankles. Despite that there is no contemporaneous clinical evidence of symptoms associated with either fibromyalgia or specific joint pain during the Veteran's period of active service, the Board concluded that the December 2011 opinion was inadequate, as the Veteran's competent and credible statements regarding such symptoms constitute evidence of these symptoms in service. As such, the Board determined that an expert medical opinion was necessary. For this reason, in November 2012, the Board requested the opinion of a specialist in rheumatology. The Board received the expert medical opinion in January 2013. After reviewing the Veteran's claims file, the rheumatologist determined that it was at least as likely as not that the 1992 diagnosis of rheumatoid arthritis was in error and that it was at least as likely as not that the appropriate diagnosis at that time was fibromyalgia. The rheumatologist explained that rheumatoid arthritis is an inflammatory condition, the diagnosis of which is based upon objective findings of joint swelling and inflammation. The joints predominantly involved are the small joints of the hands and feet, but larger joints are also commonly involved. The diagnosis is supported by positive blood work including either a positive rheumatoid factor or anti-CCP antibody. There was no mention throughout the Veteran's treatment records of small joint arthritis, and a bone scan performed in January 1990 was reported as negative for any joint abnormality, large or small. In addition, a rheumatoid factor was reported as being negative in 2003. Finally, as rheumatoid arthritis classically has a chronically progressive disease course, it would be distinctly unusual to lack typical findings of progressive chronic small joint deformities of the hands, wrists, and feet over the course of 20 years, as was absent in the Veteran's case. Each of these findings suggested that the 1992 diagnosis of rheumatoid arthritis was in error. In addressing whether it was at least as likely as not that the appropriate diagnosis at that time was fibromyalgia, the rheumatologist noted that fibromyalgia is a condition heralded by widespread pain throughout the back, upper and lower extremities, shoulder girdles, and outer hips without objective findings of inflammation. Fibromyalgia also manifests with ongoing fatigue and non-restorative sleep. Subjective complaints such as headache, memory issues, and "fibro fog" are very common, as are co-existing functional somatic syndromes such as irritable bowel syndrome. The Veteran's treatment records and testimony clearly documented subjective complaints of spinal pain and extremity soreness without objective findings of swelling or joint abnormality, consistent with fibromyalgia. In March of 1990 she had negative X-rays of her spine, shoulders, and knees, in addition to the negative bone scan from January 1990. In May 1990 there were specific complaints of soreness of trigger points about the upper back and back of the neck for which she received trigger point injections. Soreness about the trigger points serves as a testament to soft tissue pain, which is classic for fibromyalgia syndrome. As such, it was at least as likely as not that the appropriate diagnosis in 1992 was fibromyalgia. In next addressing whether it was at least as likely as not that the Veteran's fibromyalgia had its onset during her period of active service, the rheumatologist opined that based on the Veteran's reports of having experienced the same symptoms during her period of active service as she currently experiences (chronic generalized pain, fatigue, insomnia, and irritable bowel syndrome), it was at least as likely as not that her currently diagnosed fibromyalgia had its clinical onset during her period of active service. With respect to whether the Veteran had any underlying pathology, including arthritis of the cervical, thoracic, or lumbar segments of the spine, or of the shoulders or legs which was unrelated to the fibromyalgia, the rheumatologist explained that fibromyalgia syndrome is a condition heralded by widespread pain across multiple body parts, typically on the back, upper, and lower extremities, shoulder girdles, and outer hips. As such, it was likely that her current complaints of neck pain, spinal pain, bilateral shoulder pain, and bilateral leg pain were related to her fibromyalgia syndrome, rather than to any underlying pathology. In support of this conclusion, the rheumatologist noted that her treatment records were negative for any separate current pathology for these areas. The rheumatologist noted, however, that MRI findings were positive for a mild compression deformity at T12, and mild bulging of the L5 vertebra. In explaining why these findings were not representative of current pathology, the rheumatologist stated that mild compression deformities were generally asymptomatic and that mild bulging disks were extremely common and not very specific for indicating pain or resulting pathology. As such, it was less likely than not that the thoracic and lumbar spine pain of which the Veteran complained was related to these findings, and it was more likely than not that the pain was associated with her fibromyalgia. After weighing the evidence regarding the relationship between the Veteran's fibromyalgia and her period of active service, the Board concludes that the record as a whole supports a grant of service connection for fibromyalgia. In this regard, the Board notes that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 472 (1993). In this case, the Board ascribes greater probative weight to the January 2013 opinion of the private rheumatologist than to the inadequate December 2011 VA examiner's opinion. As the December 2011 examiner did not consider evidence supportive of the Veteran's claim, the Board concludes that the examiner's finding that there was no relationship between her fibromyalgia and her active service is entitled to less probative weight. Given the greater probative weight of the January 2013 opinion, the Board concludes that is at least as likely as not that the Veteran's fibromyalgia had its onset during active service, and that service connection for fibromyalgia is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990); 38 C.F.R. § 3.102. In determining whether service connection for the remaining disabilities at issue is warranted, the Board has considered the Veteran's statements asserting a relationship between her active duty service, including her fibromyalgia, and the pain in her cervical, thoracic, and lumbar spine segments, shoulders, and lower extremities. See 38 U.S.C.A. § 1154(a) (requiring that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits). In the instant case, the Board finds that although the Veteran is competent to describe her symptoms, as such requires personal knowledge rather than medical expertise, she is not competent to diagnose any alleged disabilities of her cervical, thoracic, and lumbar spine segments, the shoulders, or lower extremities, or relate such disabilities to her active service, including her fibromyalgia. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that knowledge, skill, experience, training or education is necessary for an etiological opinion where the veteran is not competent to identify the medical condition and its cause); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that a professional medical opinion is not required to establish a nexus if a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). As the Veteran is not competent to provide an opinion relating her alleged disabilities of the cervical, thoracic, and lumbar spine segments, shoulders, and lower extremities to service, including her fibromyalgia, her lay statements attesting to such a relationship are entitled to little probative weight. The preponderance of the evidence in this case demonstrates that the Veteran's complaints related to her shoulders, lower extremities, and the cervical, thoracic, and lumbar spine segments, are related to her service-connected fibromyalgia, insofar as they represent the widespread pain characteristic of that disability. Both the December 2011 VA examiner and the private rheumatologist concluded that the pain in the cervical, thoracic, and lumbar spine segments, shoulders, and lower extremities was related to fibromyalgia, and did not constitute separate pathology beyond fibromyalgia. Additionally, the private rheumatologist thoroughly explained why neither the T12 compression fracture nor the mild bulging of L5 found on MRI examination were representative of current pathology; as neither finding was likely to result in pain or discomfort, it was more likely that the pain in the thoracic and lumbar spine segments was attributable to fibromyalgia. As the complaints for which the Veteran is otherwise seeking disability compensation (pain and discomfort) are unrelated to the aforementioned MRI findings, an award of service connection for the T12 compression fracture and the mild bulging of L5 is not warranted. Additionally, as the medical evidence of record (as discussed above) indicates that the pain in the Veteran's shoulders, lower extremities, and the cervical, thoracic, and lumbar spine segments is part and parcel of her service-connected fibromyalgia disability, a separate grant of service connection for these complaints is not appropriate. See 38 C.F.R. §§ 4.14 , 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2012). Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinions of the VA examiner and the private rheumatologist are the most probative evidence of record and carry the most probative weight on the question of whether the pain in the Veteran's shoulders, lower extremities, and the cervical, thoracic, and lumbar spine segments is related to her service, separate and apart from her service-connected fibromyalgia disability. As the preponderance of the evidence weighs against these claims, service connection for disabilities of the bilateral shoulders, bilateral lower extremities, and the cervical, thoracic, and lumbar spine segments (separate and distinct from a service-connected cervical spine disability) is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. At 50. (CONTINUED ON NEXT PAGE) ORDER Service connection for fibromyalgia is granted. Service connection for neck pain other than fibromyalgia is denied. Service connection for a thoracic spine disability other than fibromyalgia is denied. Service connection for a lumbar spine disability other than fibromyalgia is denied. Service connection for a bilateral shoulder disability other than fibromyalgia is denied. Service connection for bilateral leg pain other than fibromyalgia is denied. L. Howell George E. Guido Jr. Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ Laura H. Eskenazi Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs