Citation Nr: 1750130 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 15-17 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for fibromyalgia. ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969, including service in the Republic of Vietnam from December 1968 to September 1969. His awards include the Combat Action Badge This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his March 2015 VA Form 9, the Veteran requested a Travel Board hearing. He withdrew this request in a February 2016 communication. Therefore the Board can proceed to address this claim on its merits. In July 2016, the Board denied service connection porphyria cutanea tarda, granted an increased rating for lichen planus, and remanded the issue of service connection for fibromyalgia for further development. In June 2017, the Board remanded this case for further development. FINDING OF FACT The Veteran's current fibromyalgia is not etiologically related to his active service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for fibromyalgia have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran is seeking service connection for fibromyalgia, to include as secondary to his service connected malaria, hepatitis C. and/or posttraumatic stress disorder (PTSD). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of any veteran who engaged in combat with the enemy during active service, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154 (b). As noted in the Introduction, the Veteran was awarded the Combat Infantry Badge, indicating that he engaged in combat with the enemy. This applies only to the in-service requirement referred to in the previous paragraph. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996); see also Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). Service connection for certain disabilities, but not fibromyalgia, is presumed for veterans who were exposed to herbicides while in service if this disability manifests to a compensable degree at any time after service. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309 (e). A veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Alternately, 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. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). In this case, the Veteran has been diagnosed with fibromyalgia. See e.g., October 2015 VA Examination. With regard to the question of an in-service occurrence, the Veteran's service treatment records do not show complaints of joint pain or fatigue and no associated condition was noted on his December 1969 separation examination. The Board notes that the Veteran is a combat veteran. He has not described a specific combat-related incident that he associates with his current fibromyalgia. Instead he has only stated that he had joint pains during his service generally. As such, he has not described the type of disease or injury during combat; consistent with the circumstances, conditions, or hardships of such service; for which the Veteran's lay evidence despite the lack of any official record of such incurrence or aggravation. 38 U.S.C.A. § 1154 (b). Additionally, the Veteran served in the Republic of Vietnam during the Vietnam Era and is therefore presumed to have been exposed to herbicide agents during that service. See 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The remaining question is whether this current condition is directly related to the Veteran's active duty military service. To this end, the Veteran underwent a VA examination in December 2016. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed thorough clinical evaluations, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. The December 2016 found that the Veteran's fibromyalgia was less likely than not the result of his military service, including due to presumed exposure to herbicides, noting that there was no documented complaint of joint pain in his service treatment records and if his fibromyalgia had been caused by his in-service exposure to herbicides, it would have manifested much earlier than thirty-five years after his separation from service. Despite the Veteran's lay statement that his doctor linked his fibromyalgia to his military service, the record does not contain a positive medical nexus opinion. Here, the Veteran has argued that his fibromyalgia was causally related to his service connected malaria, hepatitis C, or posttraumatic stress disorder (PTSD). The Veteran has a current fibromyalgia diagnosis and is service connected for malaria and PTSD. The question then is whether this current condition is related to the Veteran's malaria, hepatitis C, or PTSD. To this end, VA has obtained multiple medical opinions. The December 2016 VA examiner also found that it was less likely than not that the Veteran's fibromyalgia was caused or aggravated by his service connected malaria or hepatitis C as there was no medical evidence that either condition caused or aggravated fibromyalgia. In a July 2017 addendum, this examiner also found that it was less likely than not that the Veteran's fibromyalgia was caused or aggravated by his service connected PTSD. This examiner noted that the cause of fibromyalgia was unknown. Symptoms may occur after a physical trauma, surgery, infection, or psychological stress, but there was no evidence and no study which states that there is a 50 percent or greater probability that PTSD caused fibromyalgia. There had been no chronic or permanent worsening of the fibromyalgia. To the extent that the Veteran has argued that his fibromyalgia was caused or aggravated by his military service or his service connected malaria or PTSD, the Board finds that this is a complex medical question. The Veteran's symptom of fatigue, for example, was previously attributed to his service connected hepatitis C. See e.g., November 2002 private treatment record. Indeed, the rating criteria for the Veteran's current 100 percent rating for hepatitis C contemplate near-constant debilitating fatigue and arthralgia (joint pain). As such, specific knowledge or training is required to differentiate between the symptoms of these conditions and the record does not suggest that the Veteran has the requisite knowledge or training to provide such and opinion. Therefore, his lay opinion in this regard is not competent. The preponderance of evidence is against service connection for fibromyalgia and the appeal must be denied. ORDER Service connection for fibromyalgia is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs