Citation Nr: 1754622 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 10-25 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a condition causing shortness of breath, to include as due to an undiagnosed illness. 3. Entitlement to service connection for asthma, to include as due to an undiagnosed illness. 4. Entitlement to service connection for status-post total right knee replacement due to osteoarthritis, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1990 to April 1991, including service in Southwest Asia. He also had unverified service in the Army National Guard of Puerto Rico, including a period of verified active duty for training (ACDUTRA) from January 1963 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In November 2013, the Board remanded the present claims for further development. There has been substantial compliance with the Board's remand directives as to the issues decided herein. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In August 2016, during the pendency of the present appeal, the RO granted service connection for allergic rhinitis (claimed as a throat condition/irritation of the throat) and tension headaches. As those were full grants of the benefits sought, the service connection claims for headaches and a throat condition are no longer on appeal. The Veteran was scheduled for a hearing before the Board at the Central Office in Washington, D.C. in April 2017. He did not appear for this hearing and did not provide an explanation or ask that it be rescheduled. Therefore, his request for a Board hearing is deemed to have been withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a disability causing shortness of breath that is separate and distinct from the shortness of breath that is a symptom of his service-connected allergic rhinitis. 2. The Veteran does not have a current diagnosis of asthma or any respiratory symptoms that are separate and distinct from the respiratory symptoms caused by his service-connected allergic rhinitis. 3. The Veteran does not have a current diagnosis of fibromyalgia. 4. The Veteran's symptoms of muscle cramps and muscle pain are related to his non-service connected diabetic peripheral neuropathy and are not manifestations of an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability causing shortness of breath (aside from service-connected allergic rhinitis) are not met. 38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for service connection for asthma are not met. 38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 3. The criteria for service connection for fibromyalgia are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Pursuant to the remand, the AOJ sent a request for any records from the Social Security Administration; however, the SSA indicated that there are no records for the Veteran. See January 2016 SSA National Records Center memorandum. Accordingly, additional efforts to obtain any such records are deemed futile. Service Connection - Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, and "any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Aside from the general statutes and regulations, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi- symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness, or (B) a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). 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 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Claims for Asthma and a Condition Causing Shortness of Breath - Analysis The Veteran is seeking service connection for asthma and a condition causing shortness of breath as separate and distinct conditions. The Veteran is currently in receipt of service-connection for allergic rhinitis. This disability is rated under 38 C.F.R. § 4.97, DC 6522 (2017), which contemplates respiratory symptoms and impaired breathing. The Veteran was afforded a VA examination in February 2016. He reported symptoms of shortness of breath, a persistent cough, and a dry throat sensation. The VA examiner stated that the Veteran did not have a diagnosed respiratory or pulmonary condition. The VA examiner opined that the Veteran's complaints were associated with his service-connected allergic rhinitis. The Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, with permanent hypertrophy of the nasal turbinates. The Veteran was afforded a VA examination in August 2016. The August 2016 VA examiner diagnosed the Veteran with allergic rhinitis and stated that the Veteran did not have diagnosed respiratory or pulmonary conditions. The Veteran reported symptoms of a persistent cough, shortness of breath, and a dry throat sensation. Pyramiding, the rating 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 disability. 38 C.F.R. § 4.14. Thus, the Board finds that separate service connection for either asthma or a condition causing shortness of breath is not warranted, as it would violate the rule against pyramiding. See 38 C.F.R. § 4.14. To the extent that the Veteran seeks service connection for asthma and a condition causing shortness of breath as undiagnosed illnesses, the Board finds that all of the Veteran's respiratory symptoms have been attributed to the known clinical diagnosis of allergic rhinitis. Therefore, neither asthma nor a condition causing shortness of breath meet the criteria for classification as undiagnosed illnesses under 38 C.F.R. § 3.317(a)(1)(ii). As the Veteran's symptoms, including shortness of breath, have been medically attributed to his service-connected allergic rhinitis, are contemplated by the assigned schedular rating for allergic rhinitis, and are not undiagnosed illnesses, no further discussion of service connection for either asthma or a condition causing shortness of breath is warranted. Service Connection Claim for Fibromyalgia - Analysis The Veteran contends that he has fibromyalgia as a result of his service in the Southwest Asia theater of operations during the Persian Gulf War. He seeks service connection on this basis. After review of the lay and medical evidence, the Board finds that the weight of the evidence is against a finding of current fibromyalgia. The service treatment records and post-service treatment records show no diagnosis or treatment fibromyalgia. In a March 1991 Report of Medical History, the Veteran indicated that he had cramps in his leg. He was found to have polyarticular tenderness of the lower extremities. A rheumatology consult was needed to rule out rheumatoid arthritis. In a December 2008 statement, the Veteran's wife stated that he complains of muscle pain throughout his body. The Veteran was afforded a VA examination in February 2016. The VA examiner stated that the Veteran did not have a diagnosis of fibromyalgia and did not have any findings, signs, or symptoms attributable to fibromyalgia. The VA examiner noted that the Veteran had a history of chronic cervical pain, chronic lumbar pain, diabetes mellitus, and peripheral neuropathy, but no history of migratory arthralgia. The VA examiner opined that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities was caused by his diagnosed diabetes mellitus and noted that diabetes mellitus is the most common cause of peripheral neuropathy. The VA examiner also stated that the Veteran's reported muscle pain is a cramping sensation at the bilateral upper and lower extremities due to his peripheral neuropathy. As such, the VA examiner stated that it is a disease with a clear etiology and diagnosis that is less likely than not related to any exposure while in Southwest Asia. In an August 2016 addendum opinion, the February 2016 VA examiner addressed the 1991 notation of polyarticular arthritis and cramps in his legs. The VA examiner stated that cramp in the legs is a non-specific finding that can be linked to several causes. The VA examiner also stated that there was no evidence of continuity or chronicity of any polyarticular arthritis, despite the 1991 notation. The VA examiner reiterated that the Veteran's current peripheral neuropathy is caused by the diabetes mellitus, which is the most common cause of peripheral neuropathy. The VA examiner opined that the current peripheral neuropathy is less likely than not related to service, to include any exposure while in Southwest Asia. The Board notes that sufficiently trained examiners are competent to reach diagnoses or find the absence of diagnosable disorder. See Guerrieri V. Brown, 4 Vet. App 467 (1993). Here, the VA examiner personally examined the Veteran, reviewed his file and performed extensive testing concluded that the Veteran had no current diagnosis of fibromyalgia. Furthermore, because the VA examiner has medical training and expertise, based the medical opinion on an accurate medical history, and provided adequate rationale for the medical opinion, the Board finds that the February 2016 VA medical opinion and August 2016 addendum opinion are of significant probative value. There is no other competent medical opinion of record. In this case, the Veteran, as a lay person, is competent to report experiencing any symptoms that come to him through the senses at any given time, including any observable musculoskeletal symptoms; however, he does not have the requisite medical training or expertise to attribute those symptoms to a diagnosis of fibromyalgia. A diagnosis of fibromyalgia is based on clinical findings and knowledge of medical principles that would eliminate various possible etiologies for the musculoskeletal pain and cramps; therefore, it is beyond the realm of competence for a lay person (i.e., use of the five senses). The weight of the evidence demonstrates that the Veteran has never had and does not currently have fibromyalgia. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Because the weight of the evidence is against finding a current diagnosis of fibromyalgia, the service connection claim for fibromyalgia must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To the extent that the Veteran is seeking service connection for the symptoms of muscle pain and muscle cramps as an undiagnosed illness, the Board finds the VA examiner's opinion that these symptoms are attributable to the non-service connected diabetic peripheral neuropathy to be highly probative. Therefore, the Board finds that the Veteran's symptoms of muscle pain and muscle cramps are related to the non-service connected diabetic peripheral neuropathy. Therefore, neither asthma nor a condition causing shortness of breath meet the criteria for classification as undiagnosed illnesses under 38 C.F.R. § 3.317(a)(1)(ii). For these reasons, service connection for an undiagnosed illness manifested by muscle pain and cramps is not warranted. ORDER Service connection for asthma is denied. Service connection for a disability causing shortness of breath, separate from already service-connected allergic rhinitis, is denied. Service connection for fibromyalgia is denied. REMAND Remand is necessary to afford the Veteran a VA compensation examination of the right knee. The Veteran is diagnosed with a right knee disability. He contends that his right knee disability is related to an injury he had while in training for the National Guard in 1983. The Veteran's military personnel records indicate that he injured his right knee in May 1983 during National Guard training. The Veteran has not yet been afforded a VA examination. A VA examination in this instance is warranted as there is evidence of a current right knee disability and the Veteran's military personnel records document a right knee injury during training, but there is insufficient competent medical evidence on file to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, on remand, a VA examination should be obtained in order to assist in determining whether the current right knee disability is related to or caused by service, to include the May 1983 right knee injury. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's updated VA medical records, and any identified private treatment records. 2. Then, schedule the Veteran for a VA examination to determine the etiology of his right knee disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. After reviewing the Veteran's claims file and examining the Veteran, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the current right knee disability is related to, or caused by, the documented May 1983 right knee injury during National Guard ACDUTRA training . See May 1983 Line of Duty determination and Physical Profile. A detailed rationale should be provided for the opinions rendered. If the examiner cannot provide the requested information without resort to speculation, he or she must state the reasons why, and if an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. After completion of the above and compliance with the requested action has been ensured, adjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs