Citation Nr: 18142369 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 12-30 672 DATE: October 15, 2018 ORDER Entitlement to service connection for pain of both upper and lower extremities, to include as due to fibromyalgia, and to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for Parkinson’s disease, to include as secondary to service-connected disease or injury is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to a disability rating in excess of 10 percent for TBI is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A disability manifested by pain of the upper and lower extremities to include fibromyalgia did not manifest in service and is not attributable to service. 2. A disability manifested by pain of the upper and lower extremities to include fibromyalgia is not caused or aggravated by service-connected disease or injury. 3. Parkinson’s disease did not manifest in service or within one year of separation and is not attributable to service. 4. Parkinson’s disease is not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. A disability manifested by pain of the upper and lower extremities to include fibromyalgia was not incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. A disability manifested by pain of the upper and lower extremities to include fibromyalgia is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2017). 3. Parkinson’s disease was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. Parkinson’s disease is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to January 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the sleep apnea, back, and bilateral upper and lower extremities claims in an August 2015 decision. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Court issued an order granting a March 2016 Joint Motion for Remand (JMR). The Board subsequently remanded these claims in October 2016, June 2017, and June 2018. They have now been returned to the Board. The remaining claims were remanded in June 2017 and June 2018 and have also been returned to the Board. In August 2013, the Veteran presented sworn testimony regarding three of his claims (sleep apnea, back, and bilateral upper and lower extremities) during a video conference hearing in Boston, Massachusetts, which was chaired by the undersigned. A transcript of the hearing has been associated with the claims file. The Veteran declined a hearing on the remaining issues. During the August 2013 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran’s sleep apnea, back, and bilateral upper and lower extremities and service or service-connected disease or injury; clarified the type of evidence that would support the Veteran’s claims; enquired as to the existence of potential outstanding records; and held the record open for 60 days for the submission of additional evidence. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Veteran was also scheduled for another hearing before a Veterans Law Judge to take place in April 2018. See RO report dated January 2018. However, the Veteran subsequently withdrew the hearing request in January 2018. Accordingly, his request for a hearing is considered to be withdrawn and his claims will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service 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 or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Pain of upper and lower extremities and Parkinson’s disease The Veteran contends that he has pain of the upper and lower extremities to include fibromyalgia as well as Parkinson’s disease that are related to his service, to include as due to a motor vehicle accident during service that resulted in a TBI. He alternatively contends that his disability of the upper and lower extremities and Parkinson’s disease are secondary to his service-connected TBI residuals. Direct service connection As discussed above, the Veteran contends that his disability of the upper and lower extremities and Parkinson’s disease is related to his service. He further contends that the disability of the upper and lower extremities and Parkinson’s disease is due to an in-service motor vehicle accident. The Board notes that the Veteran’s service treatment records are not available. However, a newspaper article received in November 2012 that appeared in the Newark Sunday News on September 8, 1957 indicates that seven soldiers, including the Veteran, were injured in a motor vehicle accident “yesterday.” The article states that none of the Veterans sustained serious injuries and the injuries to the Veteran were “contusions of the forehead, head and facial lacerations.” In light of the foregoing, the Board finds that the Veteran was involved in a motor vehicle accident during service. A July 2017 VA examination report documents diagnosis of fibromyalgia which the Veteran reported having such since 1987. He was also diagnosed with Parkinson’s disease during the July 2017 VA examination and reported during a private evaluation dated October 2015 by Dr. B.H. that he has had rest tremors since 2012. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current fibromyalgia and Parkinson’s disease are related to his service. Specifically, a VA examiner opined in a February 2015 report that after consideration of the Veteran’s medical history, it is less likely than not that the Veteran’s fibromyalgia was incurred in or caused by the Veteran’s service to include the motor vehicle accident. The examiner’s rationale for his conclusion was based on his finding that fibromyalgia has no known causes or etiologies. He further stated while it can be diagnosed, it is never known with certainty what the cause is. He asserted that suspected causes include genetic, infectious, emotional trauma and physical trauma. He determined that it is difficult to associate fibromyalgia with a motor vehicle head injury. Additionally, a VA examiner opined in a March 2018 report that after consideration of the Veteran’s medical history, it is less likely than not that the Veteran’s in-service motor vehicle accident caused the current Parkinson’s disease. The examiner’s rationale for his conclusion was based on his finding that the Veteran’s TBI from the motor vehicle accident was mild, and the Veteran likely has Parkinson’s disease for the same reasons other elderly patients develop idiopathic Parkinson’s disease. Further, while the exact etiological factors underlying idiopathic Parkinson’s disease are not clear, there was no reason for the Veteran’s in-service accident resulting in the TBI to explain the Veteran’s Parkinson’s disease. The February 2015 and March 2018 VA medical opinions were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiners’ opinions are consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with fibromyalgia or other disability manifested by pain of the upper and lower extremities or Parkinson’s disease for more than 25 years after active service. The examiners also noted the Veteran’s in-service motor vehicle accident resulting in TBI which they determined to be less likely as not related to his current fibromyalgia and Parkinson’s disease. The Board notes that a September 2011 letter from the Veteran’s massage therapist, T.K., indicates that he was treated for chronic pain in his head, neck back, arms, hands, legs and feet. She stated that this appears to be a long-standing issue that came from a trauma to the neck. She noted that the Veteran disclosed that he was in a car accident while he was in service and was never treated for muscle spasm or whiplash. She opined that the long-standing neck trauma and whiplash have affected other areas of the Veteran’s body, as the body has attempted to reach homeostasis and find balance. She indicated that the Veteran has forward head posture which affects not only the neck and head, but the entire spine, the lumbar and sacral areas, the scapula bilaterally, the entire erector spinae bilaterally, the occipital ridge which is severely tight and causes constricted blood flow and headaches in addition to limited range of motion. Pertinently, T.K. did not provide a rationale as to her finding that the Veteran’s current pain of the upper and lower extremities is due to the in-service motor vehicle accident. Indeed, she did not provide a finding as to why the Veteran’s in-service motor vehicle accident caused the current pain of the upper and lower extremities. Moreover, she did not consider the Veteran’s statement of record that he did not lose consciousness at the time of the accident and other evidence indicating the accident had mild effects. As such, the Board finds that the September 2011 report from T.K. is of minimal probative value and outweighed by the opinion from the February 2015 VA opinion who provided a thorough rationale for his conclusion. The Board also notes that a September 2012 letter from Dr. L. F. indicates that the Veteran’s symptoms such as generalized pain may possibly be linked to the motor vehicle accident in service. However, the Court has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Notably, the February 2015 VA examiner reviewed the Veteran’s medical history and considered his complaints and thereafter concluded that the Veteran’s fibromyalgia is not related to service. As such, the September 2012 letter from Dr. L.F. is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner’s opinion. Also, regarding the Veteran’s Parkinson’s disease, the Board notes that in a private treatment report dated August 2015, Dr. M.F. noted that while a TBI does not cause Parkinson’s disease, it can increase the risk. However, Dr. M.F. did not provide a rationale for his finding. Moreover, in a private treatment report dated October 2015, Dr. B.H. opined that a history of neuroleptic exposure could have some causal relationship with Parkinson’s disease. As discussed above, the Court has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. In light of the foregoing, the Board finds the opinions of Dr. M.F. and Dr. B.H. are of no probative value. On the contrary, the Board finds the March 2018 VA opinion to be of great probative value as the examiner provided a rationale for his findings and the opinion was based on thorough review of the Veteran’s medical history. 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 or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board acknowledges statements from the Veteran, his wife, and M.M. indicating that the Veteran has a disability manifested by pain of the upper and lower extremities to include fibromyalgia as well as Parkinson’s disease that are related to service. The Board notes that the Veteran and other lay individuals are competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, the record does not document any findings of symptoms associated with pain of the upper and lower extremities to include fibromyalgia until the 1980s which is more than 20 years following the Veteran’s discharge from service as well as no findings associated with Parkinson’s disease until 2012. Further, although there is no separation examination from service associated with the claims folder, as discussed above, the Veteran indicated an onset of 1987 of his fibromyalgia during the July 2017 VA examination as well as onset of Parkinson’s disease symptoms since 2012 during a private evaluation dated October 2015 by Dr. B.H. As such, while the Board has considered the lay assertions of the Veteran, his wife, and M.M., the Board does not find them sufficient to outweigh the VA opinions of record which as discussed above, were based on thorough consideration of the Veteran’s medical history. Moreover, the lay evidence is inconsistent with the generally silent history of symptoms associated with pain of the upper and lower extremities until the 1980s and Parkinson’s disease until 2012. Thus, these arguments do not outweigh the specific findings of the VA examiners who are skilled neutral professionals. In short, the credible and probative evidence establishes that the Veteran’s current disability manifested by pain of the upper and lower extremities to include fibromyalgia as well as Parkinson’s disease were not manifest during service. Secondary service connection The competent evidence establishes that the Veteran has fibromyalgia and Parkinson’s disease. Additionally, the Veteran is currently service-connected for TBI. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current fibromyalgia and Parkinson’s disease are due to or aggravated by his service-connected TBI and service connection is therefore not warranted on a secondary basis. Specifically, in a July 2017 VA opinion, the VA examiner concluded after review of the Veteran’s medical history that Veteran’s fibromyalgia/upper and lower extremity disabilities is less likely than not related directly to the service-connected TBI based on his finding of an absence of a relationship between a TBI and development of fibromyalgia. He also opined that it is less likely than not that the Veteran’s TBI caused the Parkinson’s disease. He noted that while head trauma has been associated with an increased risk of developing Parkinson’s disease, the increase in risk is relatively small, and the TBI was mild. In a March 2018 addendum opinion, the VA examiner opined that it is less likely than not that the Veteran’s fibromyalgia is aggravated by the TBI. The examiner again noted that there is no known association between fibromyalgia and TBI. The examiner further opined that it is less likely than not that the Veteran’s TBI aggravated the Veteran’s Parkinson’s disease. The examiner noted that the Veteran has idiopathic Parkinson’s disease which is the most common form of parkinsonism and that Parkinson’s disease is typically age related. The July 2017 and March 2018 VA medical opinions were based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom, supra. The Board further notes that regarding the Veteran’s Parkinson’s disease, due to the underlying in-service TBI the Veteran sustained for which he is service connected, the Board has specifically considered the presumptive provisions of 38 C.F.R. § 3.310(d). In particular, under 38 C.F.R. § 3.310(d)(i), in a veteran who has a service-connected TBI, Parkinsonism, including Parkinson’s disease following moderate or severe TBI shall be held to be the proximate result of the service-connected TBI, in the absence of clear evidence to the contrary. The determination of the severity level (mild, moderate, or severe) of the underlying TBI is based on the TBI symptoms at the time of the injury or shortly thereafter. The TBI does not have to meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then the TBI should be ranked at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. 38 C.F.R. § 3.310(d)(3). A TBI is mild in severity if there is normal structural imaging, loss of consciousness for up to 30 minutes, alteration of consciousness or mental statement for a moment to up to 24 hours, post-traumatic amnesia for up to a day, and a Glasgow Coma Scale ranging from 13 to 15. A TBI is moderate in severity if there is normal or abnormal structural imaging, loss of consciousness from 30 minutes to less than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia from one to 7 days, or Glasgow Coma Scale from 9-12. A TBI is severe if there is normal or abnormal structural imaging, loss of consciousness for more than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia for more than 7 days or a Glasgow Coma Scale of 3-8. See 38 C.F.R. § 3.310(d)(3). Based on the evidence of record, the Board finds that the Veteran’s TBI did not rise to the level of moderate or severe. On the contrary, the available evidence indicates that the Veteran’s TBI was mild. The Board notes that the Veteran’s service treatment records are not available. However, the Veteran reported during a July 2017 VA TBI examination that while he “may” have lost consciousness, a neuropsychology evaluation dated 1996 notes his report that he did not lose consciousness and that he was not aware of any cognitive changes at the time. Moreover, although he has reported memory difficulty, the VA examination documents the memory impairment as mild in severity. Indeed, as discussed above, the VA examiner opined that the Veteran’s TBI from the motor vehicle accident was mild, and the Veteran likely has Parkinson’s disease for the same reasons other elderly patients develop idiopathic Parkinson’s disease. Moreover, there was no reason for the Veteran’s in-service accident resulting in the TBI to explain the Veteran’s Parkinson’s disease. Also, as indicated above, there is no probative evidence to the contrary. In light of the foregoing, the Board finds that the Veteran’s in-service TBI was mild in severity, and that presumptive service connection for Parkinson’s disease under 38 C.F.R. § 3.310(d)(i) is not warranted. The Board observes that the Veteran has submitted lay statements as well as statements from other individuals indicating that his disability manifested by pain in the upper and lower extremities to include fibromyalgia as well as Parkinson’s disease are secondary to his service-connected TBI. The Board notes that the Veteran is competent to report that he has been diagnosed with fibromyalgia and Parkinson’s disease. However, to the extent the Veteran proffers this information as a positive nexus between his fibromyalgia and Parkinson’s disease and service-connected TBI, the Board finds that such an opinion is outweighed by the evidence of record, in particular the July 2017 and March 2018 VA medical opinions which were based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by adequate rationales. Therefore, this lay evidence is accorded little probative value. Here, the preponderance of the evidence is against the claims and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for pain of both upper and lower extremities, to include as due to fibromyalgia and Parkinson’s disease, to include as secondary to service-connected disease or injury. The benefits sought on appeal are accordingly denied. REASONS FOR REMAND Sleep apnea, low back disability, TBI, and TDIU With regard to the Veteran’s claim of service connection for sleep apnea and a low back disability, the Veteran contends that these disabilities are secondary to his service-connected TBI. The Board remanded these claims in June 2018 in order for a VA medical opinion to be obtained as to whether these disabilities were caused or aggravated by the Veteran’s TBI. Pursuant to the Board remand, the Veteran’s claims folder was forwarded to a VA examiner who opined in a June 2018 report that it is less likely than not that the Veteran’s sleep apnea and low back disability diagnosed as spondylosis are aggravated by the Veteran’s TBI. However, the only rationale provided by the VA examiner was that the sleep apnea and spondylosis did not develop until later in the Veteran’s life. Indeed, the VA examiner did not provide any opinion as to whether current residuals of the Veteran’s TBI have aggravated the current sleep apnea and spondylosis. No other medical opinion was obtained following the June 2018 Board remand addressing such issue. The Board further notes that these claims were previously remanded in response to a March 2016 JMR and Court Order, and the JMR specifically discussed concerns over the adequacy of a prior medical opinion as it related to aggravation of these disabilities by a service-connected disability. In light of the foregoing, the Board finds that an addendum opinion should be obtained on remand as to whether the Veteran’s current TBI residuals aggravate the sleep apnea and low back disability. Additionally, regarding the Veteran’s claim of entitlement to an increased disability rating for TBI, the Board finds that this claim is inextricably intertwined with the Veteran’s claim of service connection for sleep apnea. In this regard, the Board remanded the TBI claim in June 2017 for the Veteran to be provided a VA examination and for the examiner to determine whether the Veteran’s reported fatigue is a symptom of the TBI or a nonservice-connected disability. Pursuant to the June 2017 remand, the Veteran was provided a VA examination for his TBI in July 2017. After examination of the Veteran, the VA examiner opined that the Veteran’s reported fatigue “may very well be” related to the Veteran’s sleep apnea but not the TBI, and the sleep apnea is not related to the TBI. However, as discussed above, the medical opinion rendered for the Veteran’s sleep apnea as related to the TBI is inadequate for evaluation purposes. As such, it is unclear as to whether the Veteran’s fatigue is a symptom of sleep apnea that is related to the TBI. Moreover, although the examiner did not report the severity of the fatigue, the record documents the Veteran’s regular complaints of fatigue and therefore may entitle him to a higher disability rating if it is considered a symptom of a related disability. Therefore, the Board finds that Veteran’s TBI claim is inextricably intertwined with the Veteran’s sleep apnea claim as development of the sleep apnea claim may impact his TBI claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The Board further finds that on remand, if the VA examiner determines that the Veteran’s sleep apnea is aggravated by the TBI, he/she should clarify the severity of the Veteran’s fatigue. The Board finally notes that the claim of entitlement to TDIU is inextricably intertwined with the claims of entitlement to service connection for sleep apnea and low back disability as well as entitlement to an increased rating for TBI. In other words, development of these claims may impact his TDIU claim. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate examiner(s) for addendum opinions on the sleep apnea and low back disability claims. The examiner(s) must review the claims folder and the opinion must reflect that such a review was conducted. The Veteran may be recalled for examination if deemed necessary. Based on the review, the examiner should respond to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s low back disability diagnosed as spondylosis is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected TBI, to include current residuals of the TBI. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s sleep apnea is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected TBI, to include current residuals of the TBI. c. If, and only if, the Veteran’s sleep apnea is aggravated by the TBI, the examiner must address the severity of the Veteran’s reported fatigue and whether such is a symptom of the sleep apnea. Provide a rationale for every opinion. 2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. If any of the benefits   3. sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel