Citation Nr: 1334467 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-03 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Missouri Veterans' Commission ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to September 1977, June 1979 to June 1980, and December 1982 to November 2000. She also had additional service in the Missouri Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2010, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. The issues of entitlement to service connection for asthma, and entitlement to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran does not have fibromyalgia at any time during the period on appeal. CONCLUSION OF LAW Service connection for fibromyalgia is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for fibromyalgia, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that VCAA letters dated in October 2004 and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The October 2004 VCAA letter informed the Veteran of what information or evidence was needed to support her claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. A March 2006 notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. Although this last notice was delivered after the initial denial of the claim, the agency of original jurisdiction subsequently readjudicated the claim based on all the evidence in the December 2006 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). While the Board acknowledges that there are no post-service treatment records in the claims file from the period on appeal, the Board notes that the Veteran has not identified any outstanding VA treatment records for VA to obtain, and she has not replied to several requests made by the RO in October 2004 (VCAA notice), April 2010, and October 2012 that she identify any outstanding treatment records and provide the requisite Forms 21-4142 so that any such private treatment records may be obtained. In that regard, the Board notes that the later two requests were made pursuant to the Board's February 2010 remand directive, and that there has therefore been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Also, while the Board acknowledges that the Veteran identified on her October 2004 Form 21-526 formal claim private treatment by Dr. V.H. at St. Luke's Medical Center, again, the Board notes that the RO has made repeated efforts to obtain the requisite Form 21-4142 authorization so that any outstanding records from that facility could be obtained, but the Veteran has failed to complete and return the form. In addition, the Board acknowledges that it appears that there may be some outstanding service treatment records from the Veteran's period of Air National Guard service that was prior to her period of active service from December 1982 to November 2000. See Deferred Rating, December 2008; Correspondence (RMC), May 2009. In that regard, however, because the Board finds in this case that the Veteran has no medically diagnosed fibromyalgia at any time during the period on appeal, any failure to obtain such records is nonprejudicial. See 38 U.S.C. § 7261(b)(2) (Court shall take due account of the rule of prejudicial error); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (Court should not unnecessarily impose additional burdens on the Board or VA with no benefit flowing to the veteran). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In February 2010, the Board remanded the Veteran's claim so that she could be provided with a VA examination. Pursuant to the Board's remand directive, the Veteran was provided with a VA examination in August 2012. Because the Veteran submitted new treatment records relating to her claim (dated in 2000 during her period of active duty and prior to the period on appeal), the Veteran was provided with a new VA examination in March 2013. A July 2013 addendum VA medical opinion was obtained to address the "CDC" criteria for fibromyalgia, which July 2013 VA medical opinion answered all of the questions posed by the Board. The above VA examination reports and medical opinion reflect that the examiners had an opportunity to review the entire claims file, and that they provided a thorough rationale for their opinions. The examiners in August 2012 and March 2013 also had an opportunity to elicit a history from the Veteran and to examine her. Therefore, the Board finds that there has been substantial compliance with the Board's remand directives, and that these VA examination reports and medical opinion contain sufficient evidence upon which to base a decision with regard to the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that she has fibromyalgia that is related to service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service for certain presumptively chronic diseases is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As an initial matter, the Board notes that the Veteran has had no foreign service. See DD Form 214. Therefore, the Board notes that the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 providing for presumptive service connection for certain illnesses associated with service in the Persian Gulf (including certain medically unexplained chronic multisymptom illnesses with signs or symptoms including fibromyalgia) are not for application. The Board notes as an initial matter that there are no post-service private or VA treatment records in the claims file for the period on appeal despite several requests having been made by the RO to the Veteran that she identify any outstanding treatment records relating to her claim, and that she provide Forms 21-4142 authorizations so that any outstanding records could be obtained (as discussed in the VCAA section above). A recent VA medical center problem list was added to the Veteran's electronic claims folder (Virtual VA), which list is blank or empty. The Veteran was provided with VA examinations in August 2012 and March 2013, and a July 2013 VA medical opinion was also obtained. The August 2012 VA examination report reflects that the Veteran reported that she was diagnosed during her active service with fibromyalgia, and that her current primary care physician accepted that diagnosis. The examiner noted, however, that a review of the Veteran's service medical records in the claims file showed no diagnosed fibromyalgia, and that there were no post-service treatment records from the Veteran's primary care physician in the claims file for review. She reported experiencing intermittent fibromyalgia, but that she was not currently under any treatment or taking any medications for such. The examiner noted that there were no findings, signs, or symptoms attributable to fibromyalgia. No widespread musculoskeletal pain was noted, and no tender points (trigger points) for pain. The examiner opined that the Veteran did not have and has never been diagnosed with fibromyalgia. The examiner explained that there was no documentation of diagnosed fibromyalgia, and that symptoms and signs on that day's examination neither diagnose nor exclude fibromyalgia. After the August 2012 VA examination was performed, the Veteran submitted in support of her claim certain private rheumatology treatment records dated from August 2000 to October 2000 (during the Veteran's active duty and prior to the filing of her claim herein) from Dr. F.C. and from the St. Luke's Medical center. These records reflect complaints of body tenderness, myalgias and arthralgias. Referable to the Veteran's disability picture, the August 2000 record indicates that, "[t]his is not classic for connective tissue disease, or necessarily for fibromyalgia since she sleeps well and it does not seem to be exacerbated by stress and it is not any better when she exercises." The record further notes that if certain diagnostic testing was unrevealing, may consider a bone scan or some other treatment for possible fibromyalgia." After various x-rays and a bone scan were performed, an October 2000 treatment record reflects an impression of "myalgias/arthralgias . . . she probably has atypical fibromyalgia." Again, the Veteran has refused to authorize VA to obtain records from this or any other provider. In light of these newly submitted records, however, a new VA examination was ordered. A March 2013 VA examination report from the same examiner who prepared the August 2012 examination report reflects that the examiner reviewed the above private rheumatology treatment records. The examiner acknowledged that the above October 2000 private treatment record reflects a diagnosis including "atypical fibromyalgia," but noted that medical literature did not show a division of fibromyalgia between atypical and typical, and noted that the diagnosis at that time was merely "probable." The examiner noted that the Veteran reported taking medication on an as-needed basis for fibromyalgia, and that she reported symptoms of widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headaches, depression, anxiety, and irritable bowel symptoms. In this regard, the examiner acknowledged that the Veteran is presently service-connected for depression (see Rating Decision, November 2012). No tender points (trigger points) for pain, however, were found on examination. The examiner again did not diagnose any current fibromyalgia. The examiner explained that fibromyalgia is a disease for which there is no laboratory, radiological, or other diagnostic tests. Rather, the examiner explained that it is diagnosed clinically, mainly by history, and that there is no evidence of diagnosed fibromyalgia despite having good medical insurance and access to medical care. In July 2013, the Chief of Rheumatology Service for the St. Louis VA Medical Center reviewed the file in order to address the "CDC" criteria for a diagnosis of fibromyalgia. This specialist explained that the CDC do not have criteria for diagnosing fibromyalgia, but rather, there were ACR criteria (and in this regard, the Board notes that a review of the CDC's website shows that "The American College of Rheumatology (ACR) 2010 criteria is used for clinical diagnosis and severity classification"). The specialist described the Veteran's history of complaints in great detail in her report, as well as the August 2000 to October 2000 private treatment records noted above, including the diagnosed "atypical fibromyalgia." The specialist explained step by step how the Veteran's disability picture has not, and does not currently meet either the 1990 or 2010 ACR criteria for a diagnosis of fibromyalgia. She explained that, While [the patient] did have intermittent exacerbations of musculoskeletal pain during her military service, which are well documented in the military medical record, she only had focal symptoms, such as pain in the lower back which radiated into the lower extremities or neck pain radiating into the trapezius. She had long periods between these exacerbations when she was apparently symptom-free. She did not have chronic, diffuse musculoskeletal pain; rather she had acute focal pain syndromes. It would be expected that a young person doing active work and caring for young children might have cervical or lumbar strain intermittently over the years. In addition, she had depression and adjustment disorder, which are characterized by depressed mood, insomnia, fatigue, and often, musculoskeletal pain. In [the specialist's] opinion, the patient's pain symptoms are better explained by her depression than by a diagnosis of [fibromyalgia]. ... Finally, the 2010 diagnostic criteria for FM ... require a widespread pain index (WPI) score of at least 7 and a symptom severity (SS) score of at least 5; or a WPI score of 3-6 and a SS score of 9 or greater. Because the patient did not have more than 6 regions of pain at any given time (as documented in the medical record and as specified in the 2010 ACR criteria), she would have to have had a simultaneous SS score of at least 9. However, because of the intermittent nature of her symptoms during her military service, her SS score is well below 9. So she meets neither the 1990 criteria nor the 2010 criteria for FM. The Board finds this opinion to be highly probative on the issue of whether the Veteran has a current diagnosis of fibromyalgia. The specialist reviewed in detail the Veteran's history of symptoms in service and since. She explained the requirements for the diagnosis, and how the Veteran's disability picture does not meet those requirements. The only evidence to the contrary of this detailed explanation is the private treatment notes in service in which the reviewing physician notes "atypical fibromyalgia;" however, that phrase must be viewed in the context of the remaining record. The August 2000 treatment record first notes that the Veteran's disability picture was "not classic ...necessarily for fibromyalgia." It later referred to "possible fibromyalgia" if further testing was unrevealing. The October 2000 follow up note indicated that the Veteran "probably has atypical fibromyalgia." Medical evidence that does little more than suggest a possibility is insufficient to establish an element of service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Here, the Board places little probative value on the August and October 2000 treatment records that merely speak to a possibility of a fibromyalgia diagnosis. The Board is cognizant that the Veteran is competent to report experiencing symptoms such as pain or tenderness. The Veteran has not been shown, however, to have the medical education, training, or experience to diagnose fibromyalgia, which requires certain medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a) (2013). Moreover, the Board finds that fibromyalgia in particular is not a condition otherwise capable of lay observation. Additionally, to the extent that the Veteran has alleged that she was told by a physician that she has diagnosed fibromyalgia, the Board notes that hearsay medical evidence (reports by a lay person of what they were told by a clinician) does not constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The threshold requirement for service connection to be granted is competent evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without a current diagnosis of fibromyalgia, the Veteran's claim for service connection for such may not be granted. See id. In sum, the Board concludes that a preponderance of the evidence is against a finding that the Veteran has a current fibromyalgia disorder; therefore, service connection for fibromyalgia is not warranted, and the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for fibromyalgia is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs