Citation Nr: 1638330 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 10-37 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back condition. 2. Entitlement to service connection for a neck condition. 3. Entitlement to service connection for fibromyalgia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to October 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Board hearing on her VA Form 9 in August 2010. In a correspondence dated June 3, 2011, the Veteran indicated that she no longer wished to appear for a Board hearing. The Board therefore considers the hearing request withdrawn. See 38 C.F.R. § 20.704 (2015). The issues were previously remanded by the Board in June 2015 for additional development. The issues have since returned to the Board. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a low back condition that is etiologically related to a disease, injury, or event which occurred in service. 2. The preponderance of the evidence is against a finding that the Veteran has a neck condition that is etiologically related to a disease, injury, or event which occurred in service. 3. The preponderance of the evidence is against a finding that the Veteran has a fibromyalgia condition that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSIONS OF LAW 1. A low back condition was not incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 2. A neck condition was not incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 3. A fibromyalgia condition was not incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter from November 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that VA examinations were not conducted in the claims for service connection and finds that no examination was required by VA as there is no competent and credible indication that the claimed disabilities are related to service, as will be discussed below. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) and Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service). Accordingly, the Board will address the merits of the claims. Service connection 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 establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, there is no indication of onset of arthritis within the initial post-separation year. To prevail on the issue of service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Facts and analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a low back, neck, or fibromyalgia condition. A low back, neck, or fibromyalgia condition is not shown in service. None of the claimed disorders are etiologically related to disease or injury incurred in service. The claimed disabilities are first documented many years after service discharge and no competent evidence has been submitted showing that they are etiologically related to service. The Veteran asserts that she had back pain prior to service, was treated on several occasions for back pain during service, and back pain continued after service. Specifically, she contends that upper and lower back conditions are due to rigorous activity and heavy lifting during enlistment. The Veteran reports a particular injury during basic training where she hurled her body over a six foot wall and subsequently felt pain from the base of her neck down her spine. On another instance, she went to the infirmary for back pain. She contends that no one documented her visits to the infirmary. She detailed that her back hurt in her 20s after service and she took over the counter medication to treat symptoms. In 1978, she sought treatment from her private physician regarding pain and was initially treated with medication and later referred to physical therapy. As she grew older the pain became worse. In 1998, she tried to get out of bed but could not. She sought treatment from her primary care physician for pain and she continued taking medication. The Veteran reported that that her specialists communicated to her that her low back and neck conditions occurred over time and the possibility existed that the conditions may have occurred without injury. See November 28, 2008 correspondence, December 10, 2010 notice of disagreement, and December 26, 2015 correspondence. The Veteran asserts that her fibromyalgia is due to chronic, long-term pain. She also contends that the condition is possibly due to exposure to tear gas during basic training. See December 10, 2010 notice of disagreement (due to chronic long-term pain) and December 26, 2015 correspondence (exposure to tear gas). The Veteran has a current diagnosis of cervical and lumbar degenerative disc disease, lumbar spondylosis, sciatica, mild scoliosis and fibromyalgia. See e.g., private treatment records dated October 18, 1996 (lumbar MRI indicates mild scoliosis and spondylosis), July 22, 2004 (cervical and lumbar degenerative disc disease, fibromyalgia) and December 9, 2009 VA problems list (sciatica, lumbar spondylosis, fibromyalgia). The Veteran served on active duty from July 1974 to October 1974. STRs show no complaints or findings for abnormal back or neck pathology or a diagnosis of fibromyalgia. The Veteran was recommended for the trainee discharge program due to an inability to effectively adjust to the military environment because of family difficulties. See record dated September 23, 1974. The Veteran declined a separation medical examination if the discharge was approved. See trainee discharge program document dated September 24, 1974. Although a separation examination is not of record, the Veteran filled out a statement of medical condition indicating that she underwent a separation medical examination more than three working days prior to her departure from place of separation and that to the best of her knowledge there had been no change in her medical condition. The Board also finds it significant that there is no indication of any back, neck or fibromyalgia complaints in the record despite complaints and treatments for multiple other medical problems during her brief period of active duty. For example, the Veteran was treated for a skin rash, upper respiratory infection, and a swollen right ankle. With regard to the low back, post service treatment records show that abnormal back pathology is first documented many years after service discharge. The first documented complaint of low back pain of record is from May 2, 1983; however, it was associated with complaints of menometrorrhagia and dysmenorrhea. An October 18, 1996 MRI diagnosed mild scoliosis and mild spondylosis of the lumbar spine. A May 18, 1998 private treatment note reflects treatment for musculoskeletal back pain and, by history, that the Veteran injured her back in a motor vehicle accident from 1984 and back pain began onset after the injury. An associated lumbar spine MRI showed a tiny left lateral focal disc herniation at L4-L5 with no significant thecal sac compression and mild scoliosis. Notably, multiple treatment records reflect that the Veteran reported a 1998 onset of low back pain, see e.g., private treatment records dated April 15, 2004 and May 7, 2004; private patient history form dated October 5, 2004; and VA treatment record dated December 5, 2008. With regard to the neck, post service treatment records show that abnormal neck pathology is first documented many years after service discharge. The Veteran complained of headaches and neck pain in a January 5, 1982 private treatment record, with a diagnosis of headaches. The Veteran reported musculoskeletal neck pain in multiple private records including those from November 13, 1998; December 11, 1998;January 8, 1999; and December 19, 2003. In an April 21, 2000 private treatment record, a superficial cyst was found in the posterior aspect of the Veteran's neck between C5-C6. A March 24, 2004 imaging study found spinal stenosis at C5-C6 secondary to a large gibrous bony bar resulting in deformity of the ventral aspect of the cord. Additionally, there was right sided neural foraminal encroachment related to degenerative uncovertebral disease. Notably, the Veteran reported a 1998 onset of neck problems in multiple treatment records. See e.g., private treatment record dated April 15, 2004 and VA treatment record dated June 22, 2010. Of significance, the Veteran applied for VA pension benefits in September 2004, and indicated that her spinal disease and cervical disorder were not service-connected and prevented her from working. She indicated that both her spinal disease and cervical disorder began in May 1998. See VA Form 21-526 received September 27, 2004. With regard to the fibromyalgia, post service treatment records show that fibromyalgia is first documented many years after service discharge. A May 18, 2004 state retirement physician's report indicated a primary diagnosis of fibromyalgia (with displacement of cervical intervertebral disc without myelopathy and a secondary condition of displacement of lumbar intervertebral disc without myelopathy). In a December 5, 2008 VA treatment record, the Veteran provided a history that she was declared medically disabled in 2003, in part, due to fibromyalgia. While the Veteran has presented medical evidence showing that she has a chronic low back, neck and fibromyalgia condition, she has not presented a medical opinion linking her conditions to disease or injury incurred in-service. For the Veteran's back and neck conditions, the only opinion offered regarding an etiology is the Veteran's report that her private physicians told her that the her conditions could have occurred on their own over time without injury. This does statement does not indicate that it is at least as likely as not that the Veteran's current cervical, low back, and fibromyalgia disabilities are related to, or had their onset during, her military service. The Board acknowledges that the Veteran has reported to VA, in connection with her claim for benefits, incurrence of a back and neck injury during basic training and another instance of low back treatment. However, the Board finds that the Veteran's more recent reports that she received treatment for neck and back pain during service are less probative than the medical records wherein she reported to those providing her medical treatment for back complaints post-service that she injured her back from a motor vehicle accident in 1984 and multiple reports that her back and neck conditions began post-service. The Board finds that the Veteran's reports while receiving treatment for her back and neck is more probative than the history given many years later. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Regarding the Veteran's statement of a link between tear gas and fibromyalgia, the Board finds the Veteran is not competent to establish an etiological link. Here, the evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion regarding an etiological link between exposure to gas and fibromyalgia. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran believes her fibromyalgia is due to chronic pain, she is not service-connected for any condition, including any resulting in chronic pain. As such, the Board finds the Veteran is not competent to report that exposure to gas caused fibromyalgia, and her lay statements lack any significant probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Therefore, the Veteran's statements regarding her neck, back and fibromyalgia have diminished probative value. The Board assigns greater probative value to the STRs showing no abnormal pathology of the low back or neck and no findings for fibromyalgia, coupled with the many years intervening service and the first documented complaints or findings. The Board finds it significant that as there are records that the Veteran sought treatment for other medical issues during service, it stands to reason that had she sought treatment for neck, back, or fibromyalgia, there would be a record of such. On balance, the weight of the evidence is against the claims. As the evidence of record is not in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claims for service connection are denied. ORDER Service connection for low back condition is denied. Service connection for a neck condition is denied. Service connection for fibromyalgia is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs