Citation Nr: 1513010 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 07-25 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for pain in the bilateral elbows, to include fibromyalgia. 2. Entitlement to service connection for pain in the bilateral wrists, to include fibromyalgia. 3. Entitlement to service connection for pain in the bilateral ankles, to include fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from March 2004 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case was previously before the Board in June 2012, and November 2013, at which point these issues were remanded for further development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran does not have an elbow, wrist, or ankle disability, to include fibromyalgia, that was caused by her service, or that was caused or aggravated by a service-connected disability. CONCLUSION OF LAW An elbow, wrist, and ankle disability, to include fibromyalgia, was not caused by active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has repeatedly asserted that she does not have a specific disability of these joints but, rather, has pain in multiple joints and muscles that began in service, and that her service provider indicated may be fibromyalgia. See, e.g., August 2006 notice of disagreement. She has also asserted that the claimed conditions are due to her service-connected back disability. See statement attached to Veteran's appeal (VA Form 9), received in July 2007. The Board will address both concerns. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2014). Service connection is currently in effect for disabilities that include lumbar spine discogenic disease, radiculopathy of the left lower extremity with sensory changes, a bilateral knee disability, and myoclonus. The Veteran's service treatment records contain a number of "problem lists" which note disorders that included myalgia and myositis. An examination report, dated in February 2006, shows that her upper and lower extremities were clinically evaluated as normal, had a FROM (full range of motion), and that the upper extremities had 5/5 strength. There was bilateral lower extremity weakness, however, strength could not be tested due to back pain. In an associated "report of medical history," the Veteran indicated that she both had, and did not have, a history of "painful shoulder, elbow, or wrist." She indicated that she had a history of "numbness or tingling"; she denied having a history of "arthritis, rheumatism, or bursitis." She was further noted to complain of back pain that radiated to her bilateral lower extremities, and tingling and paresthesias down her bilateral lower extremities to her feet. She also complained of intermittent bilateral ankle pain, with a gradual onset since February 2005. There was a notation of lumbar disc disease with associated ankle pain. Reports, dated in February and March of 2006, show that the examiners stated that he found nothing wrong with her elbows or ankles. The relevant assessment was joint pain. A medical evaluation board report, and a physical evaluation board report, dated in April and May of 2006, show that the Veteran was determined to be unfit for duty due to chronic back pain due to degenerative disc disease at L5-S1, and/or myoclonus. In June 2006, she complained of multiple joint pain, and there was a notation of possible fibromyalgia. A June 2006 statement from P.D., D.O. shows that he reported that the Veteran had a number of symptoms consistent with possible fibromyalgia, but that further study was needed to diagnose it. A VA pre-discharge general medical examination report, dated in May 2006, shows that the Veteran complained of symptoms that included daily, constant, bilateral ankle, wrist and elbow pain, as well as weakness, stiffness, fatigue, and lack of endurance. On examination, no overt deformity was noted. There was tenderness to palpation. Strength was 5/5 grossly, throughout the body. The relevant diagnoses were chronic bilateral ankle sprain, bilateral wrist sprain, and elbow olecranonitis. As for the post-active-duty service medical evidence, it consists of VA and non-VA reports, dated between 2006 and 2014. A July 2006 VA neurological examination report shows that the musculoskeletal examination was within normal limits, except for tenderness of the spine. An October 2006 private medical report from F.A.P. M.D., notes a history of diffuse joint pain, with evaluation for "possible" fibromyalgia. On examination, there was some weakness at the ankles; strength was otherwise 5/5 throughout, providing some evidence against this claim. A May 2007 report from a private physician, R.S., M.D., notes that the Veteran's complaints of numbness and tingling in her feet are secondary to her back injury. A VA spine examination report, dated in May 2007, notes that the Veteran's laboratory evaluation was negative for a rheumatologic condition, that her rheumatoid factor was normal, that her antinuclear antibody test was negative, and that her sedimentation rate was normal, which would rule out an inflammatory-type condition, that there had been no injuries to the wrists or ankles. An October 2006 electromyograph (EMG) report was noted to contain results consistent with left carpal tunnel syndrome. The diagnosis section of the report notes that there is no evidence of synovitis or rheumatologic disease of the peripheral joints, providing more evidence against this claim. A September 2007 VA report notes evaluation for polyarthralgias and back pain. The Veteran complained of daily joint pain and stiffness. The report notes a past medical history of lumbago, sciatica, chronic low back pain, and myoclonus. An inflammatory component to her disease process was doubted. The assessments noted a history of chronic low back pain with sciatica, and that some of her symptoms suggestive of fibromyalgia, with a recommendation for psychotherapy. An addendum notes that chronic pain syndrome/fibromyalgia was likely. A January 2008 report notes a history of a back injury, and contains an assessment of chronic pain. The claims file includes disability benefits questionnaires (DBQs) covering the claimed joints, dated in August 2012. These reports show that the examiner indicated that the Veteran's claims file had been reviewed. This evidence shows the following: imaging studies did not show arthritis. There were no other significant diagnostic test findings or results. The claimed conditions are less likely as not (less than 50 percent probability) incurred in or caused by the Veteran's service. Importantly, the Veteran was found to have normal elbows, wrists, and ankles, providing highly probative evidence against the claim that she even has these problems, let alone whether these problems are related to service. In this regard, the examiner noted that she has minimal to no signs or symptoms related to degenerative disc disease. Her complaints are vague, she showed Waddell's sign, and her complaint of all her joints appears to be somatic. See also August 2012 back DBQ (noting vague, somatic complaints). She does have metabolic problems that could contribute to her complaints. With the exception of her degenerative disc, she has normal joints. There is no SMR (service medical record) evidence that she would have had chronic problems with her ankles, elbows, or wrists. There is no indication that her knees or back contribute to her joint issues. There were "diagnoses" of "normal bilateral ankles," "normal elbows," and "normal wrist." A VA DBQ, dated in January 2014, shows that the examiner indicated that the Veteran's claims file had been reviewed. This evidence shows the following: there were no complaints referable to the elbows. For all claimed joints, imaging studies had been performed with no abnormal findings, or which were noted to contain no evidence of arthritis. Strength was 5/5. There was no additional limitation of motion following repetitive motion testing, and no objective evidence of painful motion, joint laxity, functional loss, functional impairment, or ankylosis. A previous laboratory workup for rheumatic-type conditions was negative. The Veteran's ability to work was not impacted. The claimed conditions are less likely as not (less than a 50/50 percent probability) incurred in or caused by her service. The examiner explained that there were normal examinations, normal X-rays, and that there is no evidence of fibromyalgia on examination. There was no evidence of any myoclonus. Most, if not all, of the Veteran's complaints are related to adrenal insufficiency, anemia, and hyperthyroid conditions, all of which appear to be autoimmune-related, and which are not due to or aggravated by service, or any other conditions, providing more evidence against this claim. The Board finds that the evidence is insufficient to show that the Veteran currently has a disability of her wrists, elbows, or ankles. In fact, there is highly significant medical evidence against such a finding, as noted above. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). For all claimed disorders, the Veteran's laboratory testing has been within normal limits. See e.g., VA spine examination report, dated in May 2007. The August 2012 and January 2014 VA DBQs contain competent opinions that the Veteran does not have a disability of any of the claimed joints. The January 2014 examiner further indicated that no current disability was related to a service-connected disability. These opinions are considered highly probative, as they are shown to have been based on a review of the Veteran's claims file, and they are accompanied by a sufficient explanation and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With regard to fibromyalgia, the January 2014 DBQ shows that the examiner specifically stated that the Veteran does not have this disability. Id. There is no competent opinion of record in support of any of the claims, on any basis. In this case, the Board finds that the best evidence in this case does not support the contention that the Veteran currently has a disability related to these claims. Simply stated, the best medical evidence indicates the Veteran does not have these problems. In any event, even if we assume these problems exists, the best evidence indicates that they are not related to service or a service related problem. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied on any basis, to include as secondary to service-connected disability. 38 C.F.R. § 3.310. In reaching this decision, the Board has considered the notations of chronic sprain and olecranonitis in the 2006 VA examination report, and the indications of fibromyalgia in VA progress notes. However, this evidence is all dated well prior to the 2012 and 2014 VA DBQs, which reflect a more comprehensive view of the evidence and are based on current findings. This evidence is therefore insufficiently probative to warrant a grant of any of the claims. See Boggs v. West, 11 Vet. App. 334, 344 (1998) (holding that the Board may adjudge a more recent medical opinion to have greater probative value, particularly where the subsequent examiner had additional evidence available in rendering the opinion); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The best evidence indicates that the Veteran does not have, and has not had, these problems. The issues on appeal are based on the contentions that elbow, wrist, and ankle disorders, to include fibromyalgia, have been caused by service, or caused or aggravated by a service-connected disability. While the Board understands the Veteran's concerns, 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, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service treatment reports and post-service medical records have been discussed. Opinions have been obtained in which the examiners concluded that the Veteran does not have any of the claimed conditions. The Board has determined that service connection for the claimed conditions is not warranted. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that elbow, wrist, and ankle disabilities, to include fibromyalgia, were caused by her service, or that they were caused or aggravated by a service-connected disability. 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 this matter on that basis. 38 U.S.C.A. § 5107(b). There is significant evidence against these claims. 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). 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 a letter dated in May 2006 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required. The claim was readjudicated as recently as February 2014. 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 medical 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 medical records. The Veteran has been afforded several examinations and the two most recent reports show that the examiners concluded that the Veteran does not have any of the claimed conditions. In January 2013, the Board remanded this claim. The Board directed that the Veteran be afforded another examination, to include obtaining etiological opinions. In January 2014, this was done; the examiner concluded that the Veteran does not have any of the claimed conditions. Under the circumstances, the Board finds that there has been substantial compliance with its remand. 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). In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claim on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim does not cause any prejudice to the Veteran. ORDER Service connection for an elbow, wrist, and ankle disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs