Citation Nr: 1804526	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  14-15 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi



THE ISSUE

Entitlement to service connection for fibromyalgia.



REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

P. Childers, Counsel



INTRODUCTION

The Veteran served on active duty from June 1983 to January 2003.  He also served in the Army National Guard, including on active duty for training from January 1976 to April 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2012 by a Department of Veterans Affairs (VA) Regional Office (RO).  

No pertinent evidence has been associated with the claims file since the March 2014 statement of the case (SOC).  Military records (including service treatment records (STRs)) associated with the claims file ostensibly in 2015 are duplicative of those already of record.  See, e.g., August 2011 deferred rating decision, and March 2014 SOC.  Therefore, remand for further RO consideration is not necessary.  See 38 C.F.R. § 20.1304(c).


FINDING OF FACT

The Veteran did not serve in the Southwest Asia Theater of Operations, and his post-service fibromyalgia is not related to service.


CONCLUSION OF LAW

The criteria for service connection for fibromyalgia have not been met.  38 U.S.C. §§ 1110, 1131, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

The Veteran seeks service connection for fibromyalgia, which he contends began during his 1990-1991 mobilization to active duty service in support of Operation Desert Shield/Desert Storm.  He specifically asserts that his post-service fibromyalgia may be related to a fall that he had down a track vehicle ramp while he was on active duty in 1991, or to poor accommodations and extreme field conditions during that mobilization.  See, e.g., statement from Veteran dated December 9, 2011.

Legal Criteria

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. §§ 1110, 1131; 38 C.F.R. § 3.303.  "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)). 

Additionally, VA will also pay compensation to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest either during that veteran's active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more thereafter.  38 U.S.C. § 1117; 38 C.F.R. § 3.317.  Fibromyalgia is such a qualifying chronic disability characterized as a medically unexplained chronic multisymptom illness.  See 38 C.F.R. § 3.317(a)(2)(i)(B)(2).


Analysis

The Veteran's STRs show that he was treated for various joint pains after falls during service, including ankle and back pain, diagnosed as sprains.  He was also treated for wrist pain after falling, diagnosed as carpal tunnel syndrome.  The Veteran is service connected for a left wrist condition.

Post-service medical records dating from 2008 show treatment for "pain in hands, forearms, legs, and feet . . . deep and radiates thru soft tissues", diagnosed as chronic pain syndrome.  Post-service medical records dating from 2009 reflect a diagnosis of fibromyalgia, and on VA fibromyalgia examination in October 2011 the diagnosis was fibromyalgia.  

Service records confirm that the Veteran's military service was entirely stateside.  Additionally, the Veteran states that he was never deployed outside of the United States.  See, e.g., May 2014 statement.

First, the Board finds that the Veteran did not serve in the Southwest Asia Theater of Operations during the Persian Gulf War.  Therefore, presumptive service connection under special provisions of 38 C.F.R. § 3.317 pertaining to "Persian Gulf veterans" is not applicable because it requires service in that location, which is primarily made up of Middle Eastern countries and areas.  See 38 C.F.R. § 3.317(e).

As for service connection on a direct basis, the Veteran was not diagnosed with fibromyalgia during his stateside active duty service or in line of duty during a period of active duty for training, which weighs against the claim.  

In this regard the Board notes that while STRs show treatment for pain, according to the October 2011 VA examiner "there is no evidence from the C file that suggests that he had fibromyalgia while in service."  The examiner added that "joint pains do not suggest fibromyalgia."  This is highly probative evidence against the claim, and there is no medical evidence of record to the contrary.  

Although the Veteran contends that his fibromyalgia may be related to a fall that he had down a track vehicle ramp while he was on active duty in 1991 or the poor accommodations and extreme field conditions during that mobilization (see, e.g., statement from Veteran dated December 9, 2011); a lay opinion is limited to inferences which are rationally based on a claimant's perception and does not require specialized knowledge; and no factual foundation has been established to show that the Veteran is qualified through specialized knowledge, education, training, or experience to offer a medical diagnosis or opinion.  The Board therefore finds that the Veteran's opinion as to an association between his presently diagnosed fibromyalgia and service is beyond the Veteran's lay capacity and is of no probative weight.

As for the Fact Sheets submitted by the Veteran on fibromyalgia and Persian Gulf War Veterans, the Veteran is not a Persian Gulf War Veteran for VA purposes pertaining to the presumptive provisions of 38 C.F.R. § 3.317 (that is, a veteran with service in the Southwest Asia Theater of Operations during the Persian Gulf War), so this evidence does not assist his claim. 

In sum, while the Veteran had active duty during the Persian Gulf War era, he did not serve in the Southwest Asia Theater of Operations, so service connection for fibromyalgia under the presumptive provisions of 38 C.F.R. § 3.317 is not possible.  Moreover, while the Veteran was apparently treated for pain after falls during service, including to the back, wrist ,and ankle, he was not diagnosed with fibromyalgia 2009, long after his separation from service; and competent medical evidence, which is uncontroverted by any other medical evidence of record, reflects that the Veteran's symptoms during service did not constitute fibromyalgia.  There is also no competent evidence of record regarding this complex medical question that relates this Veteran's fibromyalgia back to service.  As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  Therefore, service connection for fibromyalgia is not warranted.


ORDER

Service connection for fibromyalgia is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs