Citation Nr: 1335242 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-20 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the case was subsequently transferred to the RO in Wichita, Kansas. In December 2008, April 2010, and May 2013, the Board remanded the claims for additional development. In June 2008, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. A review of the record shows that the VLJ that conducted the June 2008 hearing has retired. Notice was provided to the Veteran in March 2013 informing him of this development and providing him the opportunity to request a new hearing. He was provided 30 days to respond. To date, he has not contacted the Board about scheduling a new hearing. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT A diagnosis of fibromyalgia or peripheral neuropathy of the upper and lower extremities has not been established; and, there is no evidence that any neurological disorder of the extremities (other than the already service connected dysfunction of the left upper extremity or neuromuscular disorder such as fibromyalgia had its onset in service, within one year of service discharge, or is otherwise shown to be etiologically related to the Veteran's active service. CONCLUSION OF LAW 1. Fibromyalgia was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Peripheral neuropathy of the upper and lower extremities was not incurred in service, nor may it be presumed to be related to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Service Connection The Veteran asserts that he has fibromyalgia and peripheral neuropathy of the upper and lower extremities due to his service. No more specific arguments have been advanced. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); organic diseases of the nervous system (e.g., peripheral neuropathy) are a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology does not apply to the claim for fibromyalgia. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection is currently in effect for disabilities that include residuals, fracture, left humerus, with marked atrophy, Muscle Groups III and V, with neurological involvement, and traumatic arthritis. Service treatment records show that in May 1966, the Veteran sustained a fractured left humerus when he was involved in an automobile accident. The Veteran's separation examination report, dated in October 1966, shows that his neurological system was clinically evaluated as normal. In an accompanying "report of medical history" the Veteran denied having a history of neuritis, but indicated that he had a history of "swollen or painful joints." Service treatment records from the Veteran's post-active duty service include an examination report, dated in June 1971, which shows that his neurological system was clinically evaluated as normal. In an accompanying "report of medical history," the Veteran denied having a history of neuritis, or "swollen or painful joints." As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1967 and 2011. This evidence includes a VA examination report, dated in December 1980, which shows that the Veteran complained of tingling in his hands, arms, and legs. However, on examination, he had no neurological problems. The diagnosis was residuals of fracture, left humerus, with arthritis of the left elbow and shoulder. A VA progress note, dated in December 1994, shows that the Veteran complained of hand and arm numbness. The assessment was chronic pain due to degenerative joint disease and traumatic arthritis. VA progress notes, dated in 1995, show complaints of chronic pain in the left hip, leg, and back, and pain in the upper abdomen upon bending or exertion. The diagnosis was fracture, left humerus. X-rays showed degenerative joint disease of the lumbar spine and left shoulder. A VA examination report for the peripheral nerves, dated in May 1995, shows that the diagnosis was chronic lumbar back strain. However, a subsequent June 1995 examination report indicated that there was no specific neuropathy. The limitations experienced by the Veteran due to mechanical damage to the left humerus and shoulder joint. VA progress notes, dated in 1996, note right thumb degenerative joint disease, and right carpal tunnel syndrome. VA progress notes, dated between 2002 and 2006 establish that the Veteran has diabetes mellitus. There are also assessments or findings of radicular pain, shoulder bursitis, and fibromyalgia. The diagnosis of fibromyalgia has been a subject of contention. Reports dated in April 2003 and October 2004 indicate that there were no active tender points, or that they were not enough tender points were active for a diagnosis. Another report indicates that fibromyalgia points were active only at the elbows, hips, and knees. See April 2003 report. A May 2003 report notes that all fibromyalgia tender points were active. These reports note degenerative joint disease of the hips, knees, and ankles. A May 2006 report notes a history of fibromyalgia, but that the Veteran did not have any active tender points. Overall, some reports note a history of fibromyalgia or raise a question of a diagnosis of fibromyalgia. A QTC examination report, dated in May 2006, shows that on examination, the upper and lower extremities were within normal limits with the exception of the neurological dysfunction associated with the left upper extremity. Reflexes were all 1+. There was no relevant diagnosis. A VA examination report for the peripheral nerves, dated in June 2006, shows that on examination, sensory and motor function was intact. Reflexes were normal and symmetrical. Grip strength was normal. The diagnoses note neurological involvement and traumatic arthritis, left arm, status post fracture left humerus, and atrophy, Muscle Groups III and V, left arm. No other neurological dysfunction was identified. A VA EMG (electromyogram) report, dated in August 2007, clearly indicated that there was no radiculopathy C5-T1, left side, and that there was a probable ulnar-dominated left hand normal variant. The Board finds that the preponderance of the evidence shows that the Veteran does not have fibromyalgia, or peripheral neuropathy of the upper or lower extremities. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110 and § 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). As indicated, a diagnosis of fibromyalgia and/or peripheral neuropathy of the extremities has not been established. It is true that there was some question of whether the Veteran had fibromyalgia. However, in the end, a diagnosis has never been made. There has only been a suggestion that the Veteran had a past history of fibromyalgia. There are no treatment records contemporaneous to the appeal that establish a fibromyalgia diagnosis. Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). A similar finding can be made with respect to the Veteran's claim for service connection for peripheral neuropathy. Emphasis is placed on the fact that the August 2007 EMG did not identify any neurological disorder of the extremities other than his already service connected dysfunction of the left upper extremity. Without a diagnosis of fibromyalgia and/or peripheral neuropathy, the claims for service connection must fail. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of a proof of present disability there can be no claim). Moreover, notwithstanding the finding that the preponderance of the evidence is against a finding that the Veteran currently has any of the claimed disabilities, the Board notes that there is no evidence of treatment, diagnoses, or complaints of fibromyalgia or peripheral neuropathy during active duty service or within one year of separation from service. Further, to the extent that the Veteran may have pain his extremities, he is shown to have a complex medical history, to include degenerative joint disease of multiple joints, a total left knee replacement, and diabetes mellitus. Service connection is not currently in effect for any of these disabilities. There is likewise no competent evidence to show that the Veteran has any of the claimed disabilities that are related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has also considered the Veteran's assertions that he currently has fibromyalgia and peripheral neuropathy of his upper and lower extremities that are related to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, fibromyalgia, and peripheral neuropathy of the upper and lower extremities, these fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Fibromyalgia, and peripheral neuropathy, are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice 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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in March and June of 2006 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements. Nothing more was required. The matter was then readjudicated as recently as July 2013. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records. The Veteran has not been afforded an examination, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings fibromyalgia or peripheral neuropathy, the Veteran is not currently shown to have either fibromyalgia or peripheral neuropathy of any extremity (as opposed to the already service connected neurological disorder of the left upper extremity), and there is no competent opinion of record in support of any of the claims. The first, second and third McLendon criterion are not satisfied. Therefore, examinations and etiological opinions need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board remanded these claims in December 2008, April 2010, and May 2013. In December 2008, the Board directed that the Veteran be requested to identify all VA and non-VA health care providers who have treated him for the claimed conditions, and that all identified records be obtained, to include VA treatment for carpal tunnel syndrome in 1996, and all VA treatment since November 2006. A number of VA treatment reports, to include 1996 records of treatment for carpal tunnel syndrome (from the Oklahoma City VAMC) (VA Medical Center), and VA reports dated between 2007 and 2008 (from the Topeka VAMC), were subsequently obtained. In April 2010, the Board noted that although the RO had obtained VA imaging reports dated from April 2007 to August 2008, there were no accompanying progress reports. Although the Veteran had testified that he underwent a nerve conduction study in around 2007, no such report had been obtained. An April 2009 VA interoffice email memo referred to a February 4, 2003 VA treatment record from the Muskogee VAMC, which reported that there were not enough tender points on examination for a diagnosis of fibromyalgia. That report was not of record, and no VA treatment records, dated between July 2002 and January 2004, had been received. On remand, the Board again directed that the Veteran be requested to identify all VA and non-VA health care providers who have treated him for the claimed conditions, and that all identified records be obtained, to include any pertinent records dated between July 2002 and January 2004, and from April 2007 to the present, as well as a nerve conduction study dated in 2007 or 2008 performed at the Topeka VAMC. VA reports, dated between 2007 and 2011, from the Topeka VAMC, were subsequently obtained, to include EMG reports, dated in August 2007 and January 2008. No earlier records were obtained. In May 2013, the Board remanded the claims, after noting that, in responding to the Appeals Management Center's (AMC's) May 2010 request for records, it appeared that the Topeka VAMC put a handwritten notation on the AMC's request that the Veteran was living in Oklahoma between 2002 and 2004. The aforementioned April 2009 interoffice email memo also states that, "Most of his records are at the Muskogee VA." The Board therefore directed that appropriate efforts should be taken to obtain all VA treatment records for the Veteran, dated between July 2002 and January 2004, from all VA facilities in Oklahoma, to include the Tulsa and Muskogee VAMCs, that are not currently of record. Subsequently, treatment reports from the Muskogee VAMC, dated between July 2002 and January 2004 were obtained, and it has been shown that there were no treatment reports for the Veteran from the Oklahoma VAMC dated between 1996 and 2006. See CAPRI record from Oklahoma VAMC, received in July 2013. Given the foregoing, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); 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). Discussion of the Veteran's June 2008 personal hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for fibromyalgia and peripheral neuropathy were identified as issues at the hearing. Information was elicited from the Veteran concerning nature, onset, and etiology of the disabilities. Sources of evidence relevant in this regard were identified during this process. Indeed, as a result of the Veteran's testimony, the matter was Remanded to secure additional evidence/records. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for fibromyalgia and peripheral neuropathy of the upper and lower extremities is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs