Citation Nr: 1338525 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-30 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for fibromyalgia, also claimed as chronic pain disorder. 2. Entitlement to service connection for inflammatory arthritis of the right knee, originally claimed as painful swelling of the right knee. 3. Entitlement to service connection for inflammatory arthritis of the left knee, originally claimed as painful swelling of the left knee. 4. Entitlement to service connection for edema of the ankles and legs. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran had active service from May 1967 to June 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied the Veteran's claims for service connection for fibromyalgia, a chronic pain disorder, degenerative disc disease of the spine, bilateral inflammatory arthritis of the knees, and edema of the ankles and legs. In her September 2007 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge at the RO. Such a hearing was scheduled for July 2009, and the Veteran was so notified in May 2009. However, in July 2009, the Board received a statement indicating that the Veteran wished to withdraw her request for a Board hearing. Accordingly, the Board may proceed with adjudication of the Veteran's appeal. 38 C.F.R. § 20.704(d). In April 2011, the Board remanded the appeal for further development to the Appeals Management Center (AMC) in Washington, DC. In an August 2012 rating decision, the AMC granted, inter alia, service connection for L1 and L2 retrolisthesis, which is considered a full grant of the Veteran's claim of entitlement to service connection for degenerative disc disease of the spine, previously before the Board in April 2011. Accordingly, such is no longer part of the present appeal. The Board has combined the Veteran's claims of entitlement to service connection for fibromyalgia and entitlement to service connection for a chronic pain disorder, as both claimed disabilities have consistently been based on the same set of symptoms and medical records, such that the Board finds the claims are one and the same. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, including reference to a specific body part or system or a description of symptoms, as well as the other information of record); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Fibromyalgia, also claimed as chronic pain disorder, is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. Inflammatory arthritis of the right knee is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 3. Inflammatory arthritis of the left knee is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 4. Edema of the ankles and legs is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Fibromyalgia, also claimed as chronic pain disorder, was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Inflammatory arthritis of the right knee was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. Inflammatory arthritis of the left knee was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 4. Edema of the ankles and legs was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2005 letter, sent prior to the initial unfavorable decision issued in May 2006, advised the Veteran of the evidence and information necessary to substantiate her service connection claims as well as her and VA's respective responsibilities in obtaining such evidence and information. This letter also informed the Veteran of what type of information and evidence was needed to establish disability ratings and effective dates in accordance with Dingess/Hartman, supra. Accordingly, VA has satisfied its duty to notify under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains private and VA treatment records, along with Social Security Administration records. As noted in the Board's April 2011 remand, the record appeared to contain partial service treatment records and suggested the existence of outstanding treatment records from the Jesse Brown (Chicago) VA Medical Center for treatment from 1972 to 1985. Accordingly, the Board instructed the AOJ to request any potentially outstanding records, and obtain current VA treatment records. As documented in the claims file, AOJ efforts yielded negative replies, with the exception of current VA treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Pursuant to the Board's April 2011 remand, the Veteran underwent a VA examination in May 2011, with an addendum to such issued in September 2012. The opinions considered the full record, to include the Veteran's available service treatment records, lay statements, and current medical conditions. The VA examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided opinions supported by complete rationales, relying on, and citing to, the records reviewed. Moreover, the experts offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Additionally, the Board finds that the AOJ substantially complied with the prior remand directives, to include requesting additional records and obtaining the above VA opinions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and will proceed to a decision. II. Legal Criteria The seeks service connection for fibromyalgia, also claimed as chronic pain disorder, inflammatory arthritis of the right and left knees, and edema of the ankles and legs, claiming such is related to strenuous basic training she endured during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify'). III. Factual Background & Analysis Service treatment records show that the Veteran entered service with a clinically normal evaluation, but two weeks later, was hospitalized with abdominal complaints. She reported that four days prior to admission she began to have pain in her back with gradual movement of the pain into the right lower quadrant, and some radiation to the leg on long standing. Multiple tests were performed, yielding no abnormalities. She was discharged approximately one month later with the diagnosis "abdominal pain, etiology undetermined." A June 1967 treatment note states that the "patient is fine and seems to have another problem each time discharge is advised." Similarly, in the Veteran's June 1967 discharge report, it was noted that "in passing it seemed that every time this patient was told that she would go to duty the next day she would develop symptoms of gastrointestinal pain, abdominal pain or some other vague ache or pain. Because of this on 6/19/67 she was sent to duty without having been notified beforehand. With all the diagnostic procedures and examinations performed on this patient we have been unable to pinpoint any definite organic pathology." While hospitalized, records reflect that the Veteran went swimming six times and attended the movies sixteen times. Post-service medical records do not show the onset of any of the Veteran's claimed disabilities until several years after service separation. In this regard, the Veteran was treated for swelling in the left calf in July 1985, at which time she also reported being diagnosed with rheumatoid arthritis in 1981. Her swelling ultimately resolved after a few days without discerning the cause, and she was instructed to follow-up with rheumatology and an orthopedic clinic. A November 1992 private treatment note indicates treatment for fibromyalgia, and a February 1994 letter from the Veteran's private physician indicates that she has suffered from arthritis of the knees since the early 1980's. In March 1994, the Veteran underwent a VA joints examination. The examiner noted that "the examination is full of inconsistencies to the extent that a meaningful examination is not possible...To raise one leg, she bends the opposite knee in an exaggerated manner and one not consistent with her walking gait as observed in the corridors...she does not allow flexion of her hips beyond 60 or 70 degrees, but was previously observed to sit in a chair in an erect position and at the conclusion of the examination, she is able to sit upright on the examining table...In reviewing the x-rays, it is obvious that she is able to assume a position for the x-rays (frog leg views) that she would not allow during examination in attempting to perform Faber test." The examiner concluded that her complaints of low back pain, hip pain, knee pain, and should pain were without objective evidence of orthopedic impairment or residual disability. He found that, based on the examination, it was not possible to exclude a degree of malingering. In May 1994, the Veteran was awarded Social Security Disability benefits, based, in pertinent part, on findings that she had fibromyalgia. A February 1998 Social Security Disability indicates continuation of the Veteran's benefits, on the revised basis of her primary diagnosis of fibromyalgia and a secondary diagnosis of degenerative joint disease of the right knee. On an accompanying pain questionnaire, the Veteran stated that she began to experience pain all over her body in 1987. In May 2003, the Veteran was treated for swelling of the right ankle, the cause of which was undetermined. A May 2005 VA treatment note indicates negative findings for edema. Subsequent treatment notes do not show further complaints of edema of the ankles and legs, or a current diagnosis of such. (This appeal was filed in September 2005.) The Veteran has argued that she was treated for various pain symptoms which began during her period of basic training, that she was hospitalized at Beaufort Naval Hospital for a period of about a month and the pain symptoms receded and she was returned to duty at that time. She has indicated that these conditions were not properly diagnosed during her service, and so her treating physicians suspected that her problem was perhaps psychosomatic, or a way to avoid duty. However, she has argued that the condition had only receded due to the rest from strenuous duty, but that she continued to experience relevant symptoms, and eventually worsened to disabling degree. See the Veteran's September 2007 VA Form 9; see also the Veteran's February 1994 and September 2005 claims, December 1994 and March 2006 statements, and February 2007 NOD. In May 2011, the Veteran again underwent a VA examination. The examiner diagnosed her with right ilioinguinal neuritis, secondary to L1/L2 retrolisthesis, which the examiner stated was due to the Veteran's service. (As mentioned above, the Veteran was awarded service connection for such in August 2012.) The examiner noted the Veteran's in-service complaint of pain radiating down her back into her light leg with long standing, and explained that iloinguinal neuritis is a common condition occurring in thing young females when subjected to rigors of abdominal muscular wall exercises during basic training. The examiner then opined negatively on the Veteran's remaining claims, finding that such were less likely than not due to service. Regarding the Veteran's claimed edema, the examiner noted that there was no edema of the lower extremities present upon examination, and no edema noted during service. The examiner noted the Veteran's July 1985 post-service treatment for left calf swelling, which resolved without the cause being determined. With respect to fibromyalgia, the examiner noted the Veteran's in-service complaints of pain, but attributed such to the diagnosed right iloinguinal neuritis, as explained above, and, based on a review of the Veteran's medical evidence, found that fibromyalgia was not objectively documented until January 1988. Turning to the Veteran's claims of bilateral inflammatory arthritis, the examiner noted that there was no mention of knee conditions in the military and that post-service, a reported diagnosis of rheumatoid arthritis in 1981 was never confirmed with a positive rheumatoid arthritis screen. The examiner added that the Veteran's symptoms were indicative of pulmonary osteoarthropathy consistent with her diagnosed chronic obstructive pulmonary disease due to a 44 pack year smoking history, based on a December 1999 chest X-ray report. In September 2012, an addendum to the May 2011 VA examiner report was issued. The examiner recounted the service treatment records suggesting the Veteran was developing symptoms when discharge was suggested, that she was given exhaustive testing in service and found to be normal, and that such suggested malingering. The examiner further noted that there was no objective evidence available in medical literature to suggest that the Veteran's currently diagnosed disorders were related to her service, to include the strenuous nature of basic training. After a careful review, the Board finds that service connection for the Veteran's claimed disabilities is not warranted. Here, service treatment records do not show any complaints or treatment for symptoms relating to fibromyalgia/chronic pain disorder, right or left knee arthritis, or edema of the lower extremities. The Veteran's in-service complaints of pain radiating from her back to her right lower quadrant/leg have been attributed to right ilioinguinal neuritis, secondary to L1/L2 retrolisthesis, which has been service-connected. Post-service medical records do not show the onset of any of the Veteran's claimed disabilities until several years after service separation. In this regard, her claim of arthritis of the right and left knees does not meet the criteria for presumptive service connection, as arthritis did not manifest within one year of service discharge. There is also no competent medical evidence linking the Veteran's claimed disabilities to service. To the contrary, the May 2011 and September 2012 VA opinions found that the Veteran's claimed disabilities were not related to service. The May 2011 opinion gave an exhaustive account of the Veteran's in-service and post-service medical history, finding no medical evidence to support a link between the claimed disabilities and her service. The September 2012 VA opinion cited the absence of treatment for any of the Veteran's claimed disabilities while in service-despite undergoing a month-long hospitalization replete with extensive testing, and noted that her in-service caregivers were given the impression that she was seeking to avoid returning to duty. The Board accords these VA opinions great probative weight, as these opinions were formed based on a thorough review of the Veteran's medical records and provide rationales which discuss the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the examiners offered clear conclusions with supporting data and reasoned medical explanations. Id., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no contrary competent evidence or opinion of record to refute the VA examiners' opinions, and neither the Veteran nor her representative have identified an existing opinion by a competent professional to support the claim. To the extent that the Veteran's request for service connection for fibromyalgia and arthritis of the knees can be construed as an assertion that her claimed disabilities are related to service, she is not competent make this conclusion as medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Specifically, as fibromyalgia and arthritis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Rather, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See 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). Moreover, to the extent the Veteran has alleged continuity of symptomatology of right and left knee problems since service, the Board observes that while she is competent to make such assertions, she is nonetheless not credible. The Board finds it significant that the Veteran's in-service caregivers noted their impression that the Veteran was essentially exaggerating her symptoms to avoid returning to duty, and that the March 1994 VA physician noted multiple inconsistencies while examining the Veteran, stating that such suggested malingering. Accordingly, the Board finds the Veteran's statements asserting a continuity of knee problems since service lack credibility and are without probative value. See, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Accordingly, entitlement to service connection for arthritis of the right and left knees, based on a showing of continuity of symptomatology, is not warranted. Similarly, while the Veteran is competent to report symptoms of edema, the objective medical evidence lacks a current diagnosis of such during the appeal period. Even assuming she has such a disability, the September 2012 VA examiner found no basis to link edema to the Veteran's service. Though the Veteran receives Social Security disability benefits based on her fibromyalgia and arthritis of the right knee, the Board notes that Social Security decisions are non-binding on VA, and the supporting records for that decision do not link any of the Veteran's claimed disabilities to service. Based on the foregoing, the claims for service connection must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for fibromyalgia, also claimed as chronic pain disorder, is denied. Service connection for inflammatory arthritis of the right knee, originally claimed as painful swelling of the right knee, is denied. Service connection for inflammatory arthritis of the left knee, originally claimed as painful swelling of the left knee, is denied. Service connection for edema of the ankles and legs is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs