Citation Nr: 1504593 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 12-33 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In August 2013, the Veteran indicated that he was unable to attend a scheduled videoconference hearing and that he did not wish to reschedule the hearing. The Veteran's appeal was remanded by the Board in September 2013 so that additional VA treatment records could be obtained and so that a VA examination to determine whether the Veteran had a current fibromyalgia disability could be conducted. Additional VA treatment records were obtained in September 2013, and the requested VA examination was conducted in November 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the September 2013 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). FINDING OF FACT The most probative evidence of record does not establish that it is at least as likely as not that the Veteran has fibromyalgia that is attributable to active military service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for fibromyalgia are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA correspondence issued in September 2011 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Additionally, a VA examination was provided to the Veteran in November 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in November 2013 is adequate with respect to the issue decided herein, as it includes a discussion of the Veteran's relevant symptomatology and opinions as to the probable etiologies supported by sufficient rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations relevant to the issue decided herein has been met. 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran seeks entitlement to service connection for fibromyalgia. The Board notes that he is already service connected for degenerative disease of the lumbar spine with strain of the thoracic spine (rated as 20 percent disabling) as well as for muscle strain of the cervical spine (rated as 10 percent disabling). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct-incurrence basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Here, the Veteran contends that he has fibromyalgia due to "bodily trauma" during military service. In particular, he asserts that carrying 200 pounds on his back during service caused his claimed fibromyalgia and his service-connected disabilities of the cervical, thoracic, and lumbar spine. The claim for fibromyalgia was denied in an October 2011 rating decision because service treatment records were silent for complaints and/or treatment for fibromyalgia, and while a June 2011 post-service VA treatment record showed a probable diagnosis of fibromyalgia, VA treatment records dated in January 2011 and February 2011 documented no features of fibromyalgia found at that time. The RO determined that the diagnosis of probable fibromyalgia, which was made seven years after discharge from military service, was not shown to be linked to his military service. A review of the Veteran's service treatment records reveals that in a January 2004 airborne report of medical history, the Veteran denied currently or ever having swollen or painful joints, arthritis or rheumatism, or recurrent back pain or any back problem. On examination, clinical evaluation of the upper and lower extremities and spine was normal. A July 2004 chiropractic clinic note reflected the Veteran's complaints of neck pain, mid back pain, left rib pain, and low back pain. He denied any major trauma, but reported "rucking" with 200 pounds during training for Special Forces. The diagnosis was "739.1/2/4 segmental dysfunction cervical, thoracic, [sacroiliac]" and "729.1 myofascitis." During an August 2004 chiropractic visit, he reported mid back pain, neck pain, low back pain, and sharp pain in the right teres major. The assessment was "739.2/4/0" and "729.1." The Board notes that the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM) identifies 729.1 as "myalgia and myositis, unspecified." His DD Form 214 listed the reason for separation as personality disorder. Post-service treatment records reflect that the Veteran's VA primary care physician recommended a rheumatology consultation in September 2010. The Veteran underwent a contracted VA rheumatology evaluation twice in January 2011. On both visits, there were no clinical features of fibromyalgia. The VA primary care physician noted the rheumatologist's findings in subsequent progress notes. However, a May 2011 VA treatment record reflected that the Veteran's primary care physician assessed "probable" fibromyalgia and follow-up notes document treatment for fibromyalgia. VA treatment records also reflected the Veteran's reports that he feigned a personality disorder to a military psychiatrist for a separation from service. In his December 2012 substantive appeal, the Veteran stated that he had been suffering from fibromyalgia for many years and that "the same symptoms that [he] filed in [his] initial claim [for his back] (which was successful) are the same." An August 2013 letter addressed to the Veteran from his VA primary care physician responded to his "request for an opinion regarding the possible service connection of [his] chronic musculoskeletal condition as it relates to fibromyalgia." The physician stated that: [a]lthough there was no specific related injury, repeated microtrauma to the tissues, secondary to the wear and tear of active service duty, carrying equipment, the heavy loads required as part of your daily activities, certainly could lead to chronic musculoskeletal problems. The fact that it involves multiple areas including your neck, upper and lower back, and lower extremities could also be consistent with this service connection. I believe it would be as likely as not that there is a service-related connection to this musculoskeletal condition. An August 2013 VA treatment note by the same VA primary care physician confirmed that the Veteran specifically requested a letter of support regarding whether or not his fibromyalgia condition could reasonably be service related. As such, in its September 2013 Remand, the Board found that there was conflicting medical evidence as to whether the Veteran had a confirmed diagnosis of fibromyalgia, and remanded the claim in order to obtain an opinion as to whether any diagnosed fibromyalgia was distinct from his service-connected degenerative disease of the lumbar spine with strain of the thoracic spine and muscle strain of the cervical spine, and whether any current fibromyalgia disability was incurred in or was medically related to his military service. Pursuant to the Board's September 2013 Remand, the Veteran was provided with a VA fibromyalgia examination in November 2013, at which time the examiner concluded that there was no diagnosis of fibromyalgia possible. The VA examiner explained that, for VA purposes, widespread musculoskeletal pain for the purposes of diagnosing fibromyalgia means that pain occurs in both sides of the body, both above and below the waist and affecting both the axial skeleton and the extremities. Here, however, she indicated that the Veteran's subjective history of symptoms, upon direct questioning, was not consistent with the widespread pattern of pain described above. Rather, the clinical evidence indicated that the Veteran had objective evidence for pain in response to tactile pressure at the lower cervical region on the right side only, at the second rib at the costochondral junction right side only, over the supraspinatus muscle above the medial border of the scapular spine right side only, at the upper outer quadrant of the right buttocks bilaterally, and at the posterior to greater trochanteric prominence on the right hip only. There was no clinical evidence or objective evidence for pain or subjective reports of pain to tactile pressure at the medial joint of the knees. Moreover, tactile pain was absent at the lateral epicondyles of the elbows bilaterally, at the trapezius muscle midpoint of upper border, and at the occipital lobe at the suboccipital muscle insertion points. As such, the examiner concluded that the Veteran's subjective reports of symptoms and clinical evidence did not support a diagnosis for fibromyalgia based on the diagnosing criteria of the VA. The examiner further concluded that the Veteran's reported signs and subjective symptoms of musculoskeletal pain were not distinct from his complaints regarding his service-connected degenerative disease of the lumbar spine with strain of the thoracic spine and/or muscle strain of the cervical spine. In discussing the opinion of the Veteran's VA primary care physician, the VA examiner emphasized that the physician did not have the benefit of review of the claims file, nor did he cite any medical references in support of his opinion. The examiner summarized that there was insufficient clinical and diagnostic evidence for a diagnosis that matches the VA criteria for fibromyalgia. Review of the claims file was silent for complaints of widespread pain that was consistent with VA criteria for diagnosis for fibromyalgia. Additionally, a rheumatology consultation ruled out fibromyalgia as the likely etiology of the Veteran's complaints of back pain that radiated to his to buttocks in 2011. The Veteran's insomnia was likely related to other factors such as over-analytical mind, racing thoughts, and nightmares according to his mental health treatment notes. Bowel complaints were reported as being present only with increased pain levels in the lumbar spine. There was no subjective report of trauma to the spine or neck on direct questioning on past VA examinations, in the VA treatment records, or in the service treatment records that would provide a possible link between his chronic back and neck complaints from trauma and a diagnosis for fibromyalgia related to trauma to the body. Moreover, there was no pattern or accumulation of clinical or diagnostic evidence that was consistent or suggestive of fibromyalgia upon examination and review of the records. As such, the VA examiner concluded that no current diagnosis of fibromyalgia was possible. In evaluating conflicting medical reports, the Board must analyze their credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior medical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 336 (1994). Here, the Board affords the opinions of the November 2013 VA examiner much more probative value than the opinions of the Veteran's VA primary care physician. Unlike those of the Veteran's VA primary care physician, the VA examiner's opinions were formed after a complete review of the claims file, cited medical literature to support the conclusions, and provided a thorough explanation for all conclusions. The VA examiner's conclusions are further supported by the findings of VA rheumatology in January 2011 that determined the Veteran exhibited no clinical features of fibromyalgia. Moreover, the Veteran's primary care physician merely diagnosed "possible" fibromyalgia, and opined that the condition "could" be related to service. As such, the Board finds that the opinions offered by the VA primary care physician were couched in terms that are too speculative to be of any significant probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis implies he may not have been showing symptoms and therefore deemed speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (holding that a private physician's opinion that veteran's preexisting service-related condition may have contributed to his ultimate demise too speculative); Stegman, 3 Vet. App. at 230. To prevail on a claim for service connection, there must be evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). The requirement for a current disability can also be met if there is a disability at any point during the appeal period or even shortly before the appeal period. See McClain v. Nicholson, 21 Vet, App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In this case, there is no competent evidence of fibromyalgia at any point during the appeal period or shortly before the claim was filed. While the Board recognizes the Veteran's sincere belief in his claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran had a confirmed diagnoses of fibromyalgia proximate to or during any period of his appeal. With respect to the foregoing, the Board recognizes that the Veteran does claim to experience musculoskeletal pain; however, the Board notes that symptoms such as these do not in and of themselves constitute a disability for which service connection may be granted. See, e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The Board again emphasizes that the Veteran is already service connected for degenerative disease of the lumbar spine with strain of the thoracic spine (rated as 20 percent disabling) as well as for muscle strain of the cervical spine (rated as 10 percent disabling), which are not before the Board at this time. The VA examiner opined that the Veteran's reported signs and subjective symptoms of musculoskeletal pain, although claimed as "fibromyalgia," were not distinct from his complaints regarding his service-connected degenerative disease of the lumbar spine with strain of the thoracic spine and/or muscle strain of the cervical spine. The Board emphasizes that pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for fibromyalgia is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. ORDER Entitlement to service connection for fibromyalgia is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs