Citation Nr: 18149348 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-15 196A DATE: November 9, 2018 ORDER Entitlement to service connection for left shoulder tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Entitlement to service connection for right shoulder tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Entitlement to service connection for left elbow tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Entitlement to service connection for right elbow tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied Entitlement to service connection for left wrist tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. Entitlement to service connection for right wrist tendonitis and chronic muscle pain, to include as due to a qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of left wrist tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. 2. The Veteran does not have a diagnosis of right wrist tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. 3. The Veteran does not have a diagnosis of left elbow tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. 4. The Veteran does not have a diagnosis of right elbow tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. 5. The Veteran does not have a diagnosis of left shoulder tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. 6. The Veteran does not have a diagnosis of right shoulder tendonitis and chronic muscle pain, to include as due to an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for left wrist tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 2. The criteria for the establishment of service connection for right wrist tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 3. The criteria for the establishment of service connection for left elbow tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 4. The criteria for the establishment of service connection for right elbow tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 5. The criteria for the establishment of service connection for left shoulder tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 6. The criteria for the establishment of service connection for right shoulder tendonitis and chronic muscle pain, to include as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to November 2002 and from January 2003 to May 2004. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifests “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 before December 31, 2021, and which, “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses.” See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i),(ii). A “qualifying chronic disability” is one that results from (1) “[a]n undiagnosed illness,” (2) “[a] medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms,” or (3) “[a]ny diagnosed illness that the Secretary determines warrants a presumption of service-connection.” 38 U.S.C. § 1117 (a)(2)(A), (B), (C); see 38 C.F.R. § 3.317(a)(2)(i). This regulation defines a “medically unexplained chronic multisymptom illness” as a “diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). VA defines “‘objective indications of a chronic disability’ as ‘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). Unlike claims for direct service connection, claims based on an undiagnosed illness under § 1117 and § 3.317(a) do not require a nexus linking the condition to service; rather they are presumptively service connected when the requirements of the statute and the regulation are met. See Gutierrez v. Principi, 19 Vet. App. 1, 8 (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). 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 is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic 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). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran alleges that he suffers from cramps and pain throughout his bilateral arms, which were claimed as tendonitis and chronic muscle pain of the bilateral shoulders, elbows, and wrists. He alleges he suffers from pain and muscle spasms throughout his bilateral arms. The Board finds that the Veteran does not currently have a diagnosis of disabilities of the shoulders, elbows, or wrists. A review of the Veteran’s service treatment records show that he did report pain and discomfort in his arms while in service with diagnosis of tendinitis of the wrists and elbows in 2003. Private treatment records from October 2005 show complaints of body spasms. At that time, the Veteran reporting dealing with these symptoms for approximately three years. More specifically, the Veteran informed the private provider that the spasms started approximately six months before the went to basic training and before serving in the Middle East. Records show multiple tests and evaluations with normal findings. A nerve conduction study in October 2005 was normal and evaluations found no deficits bilaterally in strength or range of motion. The Veteran underwent a bilateral VA wrist examination and bilateral elbow and forearm examination in February 2015. The examiner found that the Veteran’s diagnosis of wrist tendinitis in 2003 was resolved. Likewise, the examiner found that the Veteran’s past diagnoses of bilateral lateral epicondylitis and bilateral tenosynovitis of the elbows were resolved. On exam, the Veteran did not exhibit any strength or range of motion deficits in the bilateral wrists or elbows. The examiner also reviewed imaging of the bilateral wrists and elbows, all of which was unremarkable. The examiner opined that no current diagnosis can be established regarding the Veteran’s reported wrist, forearm, or elbow symptoms. The Veteran also underwent a Gulf War general medical examination in February 2015. The examiner opined that the Veteran did not have an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. Until recently, pain alone, without a diagnosis or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection could be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). However, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain... [t]o establish the presence of a disability, the veteran will need to show that [his or her] pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Again, the Board acknowledges the statements by the Veteran. However, while the Veteran is competent to report his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as diagnosing a medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Bostain v. West, 11 Vet. App. 124 (1998), Charles v. Principi, 16 Vet. App. 370 (2002). In this case there is no diagnosed disorder for which service connection can be considered. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel