Citation Nr: 1803712	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-05 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for muscle pain of the upper back, arms, and thighs, to include as due to a medically unexplained chronic multisymptom illness (MUCMI).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to July 1991.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In June 2014, the Veteran testified before the undersigned at a Board hearing in Denver, Colorado.  A transcript of that hearing has been associated with the virtual file and reviewed. 

This case was previously before the Board in February 2015 and December 2016, on which occasions it was remanded for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directives is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In December 2016, the Board remanded a claim of service connection for a gastrointestinal disability, to include dysphagia and irritable bowel syndrome (IBS).  An August 2017 rating decision granted service connection for IBS with dysphagia, which constituted a full grant of the benefit sought on appeal.  Accordingly, that issue is no longer in appellate status and is not currently before the Board.  


FINDING OF FACT

The Veteran, who served in the Southwest Asia theater of operations during the Persian Gulf War, experiences muscle pain of the upper back, arms, and thighs that has not been accounted for by any clear diagnosis or understood etiology.  



CONCLUSION OF LAW

The criteria for entitlement to service connection for a medically unexplained chronic multisymptom illness, to include muscle pain of the upper back, arms, and thighs, have been met.  38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed.

II.  Service Connection 

Service connection will 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). 

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  

Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317(a)(1)(i); see 81 Fed. Reg. 71,382, 71,383 (Oct. 17, 2016).  

A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War.  38 U.S.C. § 1117(f?); 38 C.F.R. § 3.317(d).  The Southwest Asia theater of operations is defined as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).  Service personnel records reflect that the Veteran had active service in Southwest Asia from October 1990 to May 1991.  03/03/2015, DD 215.  

A "qualifying chronic disability" means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders).  38 C.F.R. § 3.317(a)(2)(i).  Chronic in this context is defined as existing for six months or more and/or exhibiting intermittent episodes of improvement and worsening over a six-month period.  See 38 C.F.R. § 3.317(a)(4). 

In particular, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. § 3.317(a)(2)(ii).  Therefore, even if a multisymptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  Id.  

Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI include, but are not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 C.F.R. § 3.317(b).  

The Veteran is competent to report symptoms and experiences observable by her senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  

After review of the record, the Board finds that the criteria for service connection for muscle pain of the upper back, arms, and thighs have been met.  

Initially, the Board notes that the Veteran is service-connected for IBS with dysphagia, undiagnosed neurological disorder (including peripheral neuropathy of unknown etiology) of the bilateral upper and lower extremities, and migraine headaches, all of which involve symptoms set forth in Section 3.317 as common manifestations of undiagnosed illness or MUCMI in Persian Gulf War veterans.  See 38 C.F.R. § 3.317(b).  In fact, IBS and the neurological disorder affecting the bilateral upper and lower extremities were granted specifically based on the Gulf War presumption set forth in Section 3.317.  Section 3.317 recognizes muscle pain as a common manifestation of undiagnosed illness or MUCMI for Persian Gulf veterans.  See 38 C.F.R. § 3.317(b).

An October 2010 VA examination provided a diagnosis of arthralgias and myalgias of multiple joints of uncertain etiology.  07/17/2012 (LCM), VAMC, p. 114.  

In March 2011, a VA examiner noted the Veteran's report of muscle tenderness and soreness in the upper back, shoulder blades, upper arms, and thighs, and provided a diagnosis of myalgia with unknown etiology.  03/14/2011, VA Examination.  

A January 2012 neurology treatment note indicates that the Veteran has numerous diffuse, nonspecific symptoms and an examination did not reveal significant abnormalities.  07/17/2012 (LCM), VAMC, p. 33.

In December 2012, a VA examiner distinguished between muscle pain and muscle tenderness, opining that muscle tenderness is associated with peripheral neuropathy.  The examiner further opined that myalgia is less likely as not due to toxic exposure in service because it is not medically considered to be due to exposure to toxins.  12/05/2012, VA Examination.  The Board assigns the examiner's opinion as to the etiology of muscle pain little probative value because, as previously stated, muscle pain is recognized as a common manifestation of undiagnosed illness or MUCMI exhibited by veterans of the Persian Gulf War.  See 38 C.F.R. § 3.317(b).  The examiner subsequently provided a clarification regarding the etiology of peripheral neuropathy, stating that the Veteran's neurological symptoms and diseases are part of a larger neurologic chronic multisymptom illness of unknown etiology.  12/20/2012, VA Examination.  

In September 2015, a VA examiner stated that there have been no findings of any specific etiology for the Veteran's complaints of muscle pain.  The examiner opined that the Veteran's muscle pain was less likely than not incurred in or related to her period of active service, stating that there were no complaints of upper back muscle pain during service.  The examiner's opinion as to etiology is assigned little probative weight because the presumption set forth in Section 3.317 applies to disorders that manifest to a compensable degree no later than December 31, 2012, thus recognizing that symptoms associated with undiagnosed illness or MUCMI may not appear during service.  See 38 C.F.R. § 3.317(a)(1)(i).  The September 2015 VA examiner further opined that the Veteran's muscle pain and tenderness is not secondary to her service-connected neurological disorder of the extremities, as muscle spasm and tension are not symptoms of peripheral neuropathy.  09/21/2015, C&P Exam.  

In February 2017, a VA examiner determined that a diagnosis of fibromyalgia is not warranted.  The examiner opined that myalgia remains an unexplained subjective symptom, noting that there is insufficient objective clinical evidence to diagnose an acute or chronic muscle or rheumatologic condition; that the Veteran has undergone extensive testing by a number of specialists, all of which have been unrevealing; and the lack of evidence of objective pathologic findings.  02/28/2017, C&P Exam.  

In June 2017, a VA examiner stated that there is no objective evidence to diagnosis a related acute or chronic muscle disability, noting that despite extensive testing and evaluations by multiple specialists across a number of fields, there are no associated objective findings.  06/28/2017, C&P Exam.  

Based on the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran has a medically unexplained chronic multisymptom illness, to include muscle pain of the upper back, arms, and thighs, with no clear etiology.  As previously stated, the Veteran is service-connected for gastrointestinal symptoms, a neurological disorder affecting the extremities, and headaches, all of which are recognized as common manifestations of MUCMI for Persian Gulf War veterans.  There is no reasonable basis for finding that muscle pain is not also a symptom of a MUCMI, which is presumed related to the Veteran's period of active service, specifically her service in the Southwest Asia theater of operations.  See 38 C.F.R. § 3.317.  

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ORDER

Service connection for a medically unexplained chronic multisymptom illness, to include muscle pain of the upper back, arms, and thighs, is granted. 




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs