Citation Nr: 18149889 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-08 625 DATE: November 14, 2018 ORDER Entitlement to service connection for a low back disability manifested by pain, to include as due to undiagnosed illness related to service in Southwest Asia, (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain) is denied. Entitlement to service connection for tinnitus, to include as due to undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to an initial rating in excess of 20 percent for muscle and joint stiffness (based on widespread musculoskeletal pain) due to undiagnosed illness is denied. FINDINGS OF FACT 1. The preponderance of the most probative evidence of record is against a finding that the Veteran has a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain) that is etiologically related to a period of active duty service, including as due to an undiagnosed illness. 2. The preponderance of the most probative evidence of record is against a finding that the Veteran’s tinnitus is due to acoustic trauma in service, or undiagnosed illness. 3. The Veteran’s service-connected muscle and joint stiffness (based on widespread musculoskeletal pain) has been manifest, at its most severe, to functional impairment comparable to episodic exacerbation, often precipitated by environmental stress, present more than one-third of the time. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain), to include as due to undiagnosed illness related to service in Southwest Asia, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). 3. The criteria for entitlement to an initial rating in excess of 20 percent for muscle and joint stiffness (based on widespread musculoskeletal pain) due to undiagnosed illness have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71, Diagnostic Code 8850-5025 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1988 to November 1991, and from September 2010 to September 2011. The Veteran served in Southwest Asia during both periods of active duty service. These matters come before the Board of Veterans’ Appeals (Board) on appeal of December 2008 (low back and tinnitus) and September 2015 (muscle and joint stiffness) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan and the VA The Board previously remanded this appeal in July 2014 and December 2016. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As part of the December 2016 remand, the RO was asked to issue a statement of the case in response to the Veteran’s notice of disagreement with a September 2015 rating decision assigning a 20 percent initial disability rating for service-connected muscle and joint stiffness. A statement of the case was issued on March 21, 2018, and the Veteran’s Form 9 was received on May 23, 2018. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, which is presumed to be the same date as the date of the statement of the case. 38 C.F.R. § 20.302 (b). A response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. 38 C.F.R. § 20.305. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of VA’s receipt of the document. Id. While the Veteran’s Form 9 was received outside of the 60-day time limit, it is nevertheless presumed to have been postmarked within five days of its receipt, as provided by 38 C.F.R. § 20.305. As such, it is timely filed. The Veteran’s May 2018 Form 9 appealed VA decisions on claims for service connection for tinnitus and muscle and joint stiffness/pain. In subsequent correspondence, the RO asked the Veteran to clarify if he intended to withdraw the remaining issues on appeal. In response, the Veteran and his representative submitted a signed Form 9 indicating that the Veteran also appealed a claim for service connection for back pain. The representative thereafter submitted an informal hearing presentation which briefed only the three indicated issues. Withdrawal may be made by the Veteran or by his authorized representative, and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. 38 C.F.R. § 20.204; DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Considering that the Veteran was explicitly notified of the requirements for withdrawal, and responded accordingly, all issues not addressed herein are considered withdrawn. Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service Connection – Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation during service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131. To establish service connection for a disability on a direct-incurrence basis, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 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 nonservice-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, will also be service-connected. 38 C.F.R. § 3.310 (b). Service connection for chronic diseases, including organic diseases of the nervous system, listed at 38 C.F.R. § 3.309 (a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service; or was noted in service with continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a). Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition existed during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). This presumption may be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 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 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). Compensation shall not be paid under this section for a chronic disability if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability. 38 C.F.R. § 3.317 (a)(7)(i)(ii).   Service Connection – Back Disability The Veteran seeks entitlement to service connection for a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain), to include as due to an undiagnosed illness resulting from service in Southwest Asia. Service treatment records do not evince any complaints, symptoms, treatment, or diagnoses of back pain. The Veteran did not have an examination on separation from his original period of active duty service. Records from the Veteran’s second period of active duty likewise do not indicate back pain. The Veteran denied having back pain, or any history of back pain, during a periodic health assessment in April 2010. He denied being bothered by any symptoms of back pain in an August 2011 post-deployment questionnaire, and denied having any concerns over back pain related to his deployment during a December 2011 post-deployment reassessment. Nevertheless, the earliest medical documentation of back pain in the record is in April 2002. The Veteran visited a private physician complaining of recurrent back pain for one week. The Veteran reported prior occurrences of back pain before while working at a water heater manufacturing company. The Veteran reported having had magnetic resonance imaging (MRI) testing, physical therapy, but no surgery. The physician listed an impression of lower back pain/spasm. The Veteran’s wife submitted lay statements describing her observations of the Veteran’s symptoms. She did not indicate that she observed any back pain. The Veteran was afforded a VA examination in October 2008. The Veteran reported having back pain since 1992, and described the level of pain as a 4-5 out of 10. He reported having flare-ups a couple of times a month. The examiner described the course since onset as intermittent with remissions. The examiner conducted range of motion testing, and found restricted flexion to 80 degrees with pain beginning at 70 degrees, full extension with pain beginning at 20 degrees, and concurrent evidence of pain on active and passive motion, and with repetitive use. The examiner diagnosed lumbago, and stated that “with all these subjective allegations, [the Veteran] has very little objective findings on physical exam. X-rays show normal knees, elbows, and lumbar spine.” The Veteran had an additional VA examination in October 2014. The Veteran told the examiner that he did not have any specific diagnosed back condition, and was not currently being treated for any back condition. The examiner indicated that the Veteran verified and expressed agreement with the above facts. The examiner did not conduct any testing or report any objective indications of a back disability. The October 2014 VA examiner provided an addendum opinion in June 2015. He stated that the Veteran’s complaints of back pain are the result of an undiagnosed illness (generalized aches of joints, muscle aches, fatigue, and stiffness). The Veteran had an additional VA examination in July 2017. The examiner diagnosed degenerative disc disease of the lumbar spine, confirmed by an imaging study. The Veteran reported that his symptoms began after his first deployment in the early 1990s, and that he received treatment and physical therapy from a civilian physician. Upon range of motion testing, the Veteran exhibited restricted flexion, extension, and rotation, and exhibited lower back pain and stiffness. The examiner opined that it was at least as likely as not that the Veteran’s back pain was caused by or a result of in-service events/deployment to Southwest Asia. She reasoned that the Veteran never received a diagnosis other than “back pain” despite complaining of back pain since the early 1990s; therefore, his symptoms represented an objective indication of chronic disability resulting from undiagnosed illness. She explained that the Veteran’s mild degenerative disc disease was due to wear and tear and the aging process, which is superimposed on previous back pain and not related to the back pain extant since the early 1990s. The examiner provided an addendum report in February 2018. She stated that based on her July 2017 examination, the Veteran did not have a clear and specific etiology or diagnosis for his back pain, although she believed it was likely due to wearing or carrying heavy equipment during his deployment. She stated that given the lack of a diagnosis, she believed that the Veteran’s back pain was likely a medical condition that at the time was undiagnosed by a medical provider. She stated that VA should not arbitrarily disregard a Veteran’s subjective reports of symptoms, and that she had found the Veteran to be credible. She opined that she could not “rewrite history” and come up with a diagnosis for back pain and symptoms which the Veteran stated have been present since the 1990s. She further stated that back pain symptoms cannot be sorted according to various disabilities. The Veteran has had VA medical treatment since 2012. In October 2012, the Veteran had a post-deployment physical. A VA physician noted that the Veteran reported “neck pain for years. Lower back – just annoying since he got he has gotten back. He thinks that long hours in vehicles with heavy armour [sic] may have contributed.” After thorough review, the Board finds the preponderance of the evidence is against the claim for service connection for a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain). Service treatment records do not evince any indications of a back disability. The medical evidence also does not establish that arthritis manifested to a degree of 10 percent or more disabling within one year of a period of active duty service. Savage, 10 Vet. App. at 495-96. The Board will now also consider entitlement to service connection for a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain) on a presumptive basis as a disability resulting from an undiagnosed illness due to service in Southwest Asia. 38 C.F.R. § 3.317. Pursuant to 38 C.F.R. § 4.14 the evaluation of the same disability under various diagnoses is to be avoided. The September 2015 rating decision granted service connection for muscle and joint stiffness, and assigned an initial evaluation of 20 percent, effective from January 29, 2007. The text of the September 2015 rating decision noted that the 20 percent initial rating assigned was based on widespread musculoskeletal pain and tender points that are episodic. It was noted that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e. cervical spine, anterior ches, and thoracic spine or low back) and the extremities. See also Note following 38 C.F.R. § 4.71a, Diagnostic Code 5025. As such, disability manifested by low back pain due to undiagnosed illness is contemplated in the already service-connected muscle and joint stiffness rated based on widespread musculoskeletal pain, and may not serve as the basis for an award of separate service connection and rating. As previously noted, the earliest complaints of back pain in the medical record occurred in April 2002. No diagnosis was listed at the time. The Veteran had a subsequent VA examination in October 2008. Upon testing, the examiner noted pain resulting in functional loss, but only provided a diagnosis of lumbago (back pain). The examiner did not indicate any hint of malingering. He noted that the Veteran’s subjective allegations manifested little objective findings. The October 2014 examiner did not conduct testing, but provided an addendum opinion in which he attributed the Veteran’s complaints of back pain to an undiagnosed illness. Specifically, the October 2014 examiner opined that the Veteran demonstrated objective indications of chronic back pain, resulting in functional loss, that is not attributable to a diagnosable condition. It is noted that the July 2017 examiner diagnosed degenerative disc disease. Significantly, however, she explained that the arthritis was due to recent wear and tear and the aging process, and was distinct from the back pain manifestations reported by the Veteran prior to his diagnosis of arthritis. The Board has considered whether there is affirmative evidence that the disability was not incurred due to service in Southwest Asia, or was caused by a supervening condition or event occurring between the Veteran’s most recent departure from active duty in Southwest Asia and the onset of the disability. 38 C.F.R. § 3.317 (a)(7)(i)(ii). However, there is no indication in the medical evidence that the Veteran’s back pain was caused by a supervening condition, or was not otherwise due to an undiagnosed illness resulting from service in Southwest Asia, contemplated in the current service-connected muscle and joint stiffness based on widespread musculoskeletal pain. The Board has considered the Veteran’s lay statements and arguments. He is competent to report symptoms of back pain as such are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the Veteran’s credibility is undermined by notable inconsistent statements. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Caluza v. Brown, 7 Vet. App. 496, 511 (1995). For example, the Veteran reported having symptoms of back pain since 1992 on his application for service connection, but denied having current back pain, or any history thereof, during an April 2010 military health assessment. Additionally, the Veteran told a VA treatment provider in October 2012 that his neck pain had been bothering him for years, but that his back pain had been “just annoying since he has gotten back,” which weighs against his claims of longstanding back pain. For these reasons, the Board affords his statements low credibility and probative weight. See Caluza, 7 Vet. App. at 511. Nevertheless, the Board is cognizant that the medical evidence of record has found the Veteran to have been suffering from a back disability due to an undiagnosed illness. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board may not substitute its own judgment for that of a medical expert). The probative value of medical evidence is based on the medical expert’s personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board attaches high probative weight to findings of the October 2008 VA examiner, who found evidence of pain resulting in functional loss, but could not ascribe the symptoms to a diagnosis other than lumbago (back pain). The Board also attaches high probative weight to the July 2017 VA examiner’s report. She examined the Veteran, considered his history and reports, found his reports to be credible, documented functional loss, opined that it was at least as likely as not that the Veteran’s back pain was due to an undiagnosed illness, and thoroughly explained her rationale. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (pain may establish an undiagnosed illness that causes a qualifying chronic disability). However, as noted above, this disability is contemplated in the already service-connected muscle and joint stiffness based on widespread musculoskeletal pain, and may not serve as the basis of an award of separate service connection. In sum, the Board finds that the preponderance of the evidence is against service connection for a low back disability manifested by pain (other than that contemplated by already service-connected muscle and joint stiffness based on widespread musculoskeletal pain) that is etiologically related to an undiagnosed illness resulting from service in Southwest Asia. 38 C.F.R. § 3.317. The appeal is denied. Service Connection – Tinnitus The Veteran seeks entitlement to service connection for tinnitus, to include as due to an undiagnosed illness resulting from service in Southwest Asia. Service treatment records from the Veteran’s first period of active service are devoid of any complaints, treatment, symptoms, or diagnoses of tinnitus. The enlistment examination report noted that the Veteran had cerumen (earwax), but otherwise normal ears. Simultaneous audiological testing did not document hearing loss. The Veteran’s enlistment examination for the National Guard in February 2009 revealed a slightly depressed hearing threshold at 6000 Hertz. The Veteran denied any concerns over tinnitus in a post-deployment questionnaire dated August 2011. However, the Veteran reported ringing in the ears in a post-deployment health reassessment in December 2011. The Veteran submitted private medical records from January 1997. The Veteran reported ringing in the ears, and the physician listed an impression of tinnitus. The Veteran’s wife submitted lay statements in February 2007. She stated that the Veteran had not been the same since coming back from the Gulf War, and has bouts of ringing in his ears. The Veteran had a VA examination for tinnitus in October 2008. The Veteran reported experiencing tinnitus since the mid-1990s. The Veteran also reported working at a water heater factory (with hearing protection), as an excavator, a self-employed home builder, and a concrete laborer. He had minor exposure to recreational noise, including music and power tools. The Veteran had difficulty describing his tinnitus, but likened it to the whine or hum of a fluorescent light. The examiner opined that tinnitus was not due to or aggravated by the Veteran’s history of military noise exposure, or alleged exposure to nerve agents, vaccines, oil fires or any other exposure event during service in Southwest Asia. The examiner reasoned that the first documentation of tinnitus was in October 1996, and that studies have shown that hazardous noise exposure impacts hearing immediately without delayed onset. A VA examiner, Dr. J.J., Au. D., provided a medical opinion regarding the Veteran’s tinnitus in August 2015. She reviewed the Veteran’s case file and prior medical history. Dr. J.J. opined that it is very unlikely that tinnitus etiology is related to military service or undiagnosed illness. Rather, it was more likely that the etiology of the Veteran’s tinnitus was vocational and avocational noise exposure. She noted the Veteran’s civilian employment history, and exposure to industrial noise. She observed that the Veteran did not have diagnosable hearing loss after either of his active duty deployments, but that his February 2009 National Guard examination documented a shift in hearing at 6000 Hertz bilaterally. She noted that the Veteran reported working as a concrete laborer around that time. The Veteran did not report any tinnitus symptoms, or a traumatic noise experience consistent with the onset of tinnitus, during service. The examiner cited evidence stating that the degree of any noise-induced hearing loss is highly correlated with the intensity of the noise and the length of exposure. Dr. J.J. observed that the Veteran’s exposure to civilian industrial noise was far greater than any exposure during the Gulf War or on his last deployment. She noted that the Veteran reported at least 18 years of occupational noise exposure. Dr. J.J. concluded that the Veteran’s audiograms showed an upward trend toward hearing loss not occurring during a period of active duty service. The Veteran submitted lay statements in September 2015. He disputed the length of his exposure to civilian occupational noise, and noted that tinnitus appeared in the medical records as early as 1996. He stated that his tinnitus had no known etiology per multiple physical examinations, and that failure to determine etiology is evidence in support that he suffers from an undiagnosed illness. He maintained that his tinnitus was a symptom of undiagnosed illness under 38 C.F.R. § 3.317. The Veteran had a VA examination in July 2017. The examiner reviewed the claims file, and conducted audiological testing. The Veteran’s hearing was found to be normal. However, he reported recurrent tinnitus, and described it as a high-pitched whine in his ears since 1993 or 1994. The Veteran reported being exposed to military noise including mortars, rockets, small arms fire, and vehicle noise, but that he used hearing protection. He stated that his tinnitus is “annoying” and that he sleeps with a fan on to “muffle out” the noise. The examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. She reasoned that any tinnitus related to military noise exposure would have manifested immediately, but the veteran did not report tinnitus until several years after service. She noted that complaints of tinnitus are subjective and cannot be confirmed using current clinical technologies. The July 2017 examiner provided an addendum opinion in February 2018. The examiner reviewed the claims file, and indicated that it was less likely than not that the Veteran’s tinnitus was incurred in or caused by military service. She reasoned that tinnitus is immediate, and does not happen after separation if it is from military noise. She stated that the Veteran did not report tinnitus during either period of active service, or report any increase in severity of his tinnitus during the second period of active duty service. The examiner further reasoned that any acoustic trauma in the military loud enough to cause tinnitus would also have caused a shift in hearing sensitivity, and no significant threshold changes occurred during military service. She noted that tinnitus could be secondary to problems not associated with the ear, but found that it is less likely than not that the Veteran’s tinnitus is due to military noise exposure, or other causes not yet identified. The Veteran submitted additional lay statements in May 2018. He reiterated that service connection for tinnitus should be granted on a presumptive basis as due to an undiagnosed illness. He opined that VA and himself agreed that tinnitus was not due to noise exposure, military or otherwise. He indicated that he believed his tinnitus should be considered a neurological symptom under 38 C.F.R. § 3.317. The Board notes that the Veteran’s application for service connection indicated that he worked at a water heater manufacturing company between January 1992 and March 2001, as an equipment operator between March 2001 and April 2003, and as a builder from April 2003 and for some time after. After careful consideration, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. The most probative evidence of record attributes the Veteran’s tinnitus to civilian occupational noise exposure unrelated to active duty service. Dr. J.J. opined that the Veteran’s tinnitus was less likely than not related to or caused by an in-service injury, event or disease, and more likely related to civilian occupational noise exposure. She thoroughly reviewed the claims file, and discussed the history of the Veteran’s condition. She noted that the Veteran had a long period of industrial noise exposure, and cited evidence that that the degree of any noise-induced hearing loss is highly correlated with the intensity of the noise and the length of exposure time. She noted that the Veteran had a slight shift in his hearing bilaterally in 2009, after approximately 18 years of civilian occupational noise. Because Dr. J.J. provided a persuasive rationale supported by relevant evidence, the Board affords her opinion high probative weight. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008); Nieves-Rodriguez, 22 Vet. App. at 308. The Veteran disputed the length of his exposure to civilian industrial noise. However, even when the Veteran’s earliest reports of tinnitus are considered, the record still shows significant civilian noise exposure prior to the onset of tinnitus. Specifically, the Veteran reported experiencing symptoms of tinnitus as early as 1993/1994 to the July 2017 VA examiner. Based on the Veteran’s employment information, there is, at the very least, a full year of industrial noise exposure prior to the earliest reported onset of tinnitus. As such, Dr. J.J.’s opinion remains persuasive even when considering the earliest reports of tinnitus. See Nieves-Rodriguez, 22 Vet. App. at 308. The 2008 VA examiner opined that the Veteran’s tinnitus was not due to or aggravated by military service, including military noise exposure, alleged exposure to nerve agents, pills, vaccines, oil fires, or any other event during the Veteran’s first period of active military service. He considered research studies showing that hazardous noise exposure has an immediate effect on hearing, and does not have a delayed onset. As such, the Board affords his opinion high probative weight. Nieves-Rodriguez, 22 Vet. App. at 308. The July 2017 VA examiner opined that tinnitus was less likely than not a result of military noise exposure. She opined that tinnitus does not happen after separation if it is from military noise, and that the earliest documented evidence of tinnitus in the medical record occurred 7 years after military service. She also noted that any acoustic trauma loud enough to cause tinnitus would also have caused a shift in hearing sensitivity; however, records revealed no such shift during service. She found no objective evidence of noise injury during service. The Board affords her statements high probative weight. See id. The Board has considered whether service connection may be granted under the chronic disease presumption for an organic disease of the nervous system under 38 C.F.R. § 3.309 (a). Tinnitus is considered an organic disease of the nervous system, at a minimum, when there is evidence of acoustic trauma in service. Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). However, the probative medical evidence has attributed the Veteran’s tinnitus to civilian occupational noise exposure. Therefore, presumptive service connection is rebutted by affirmative evidence to the contrary. See 38 C.F.R. §§ 3.307 (d); 3.309 (a). The Veteran alleges that he should be granted service connection for tinnitus on a presumptive basis due to an undiagnosed illness related to service in Southwest Asia. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. However, such presumption applies only to conditions that have not been affirmatively attributed to a supervening condition or disease. Id. § 3.317 (7)(i)(ii). The probative medical evidence has attributed the Veteran’s tinnitus to civilian industrial noise exposure; therefore, the undiagnosed illness presumption is inapplicable. Id. The Board has considered the Veteran’s lay statements and arguments. The Veteran is considered competent to report symptoms of tinnitus. Layno, 6 Vet. App. at 469. However, he has not been demonstrated to be competent to opine as to the etiology of his tinnitus, as such is a complex determination requiring medical expertise. Jandreau, 492 F.3d at 1377 n.4. The Board has considered the Veteran’s arguments that his tinnitus is due to an undiagnosed illness under 38 C.F.R. § 3.317. As previously indicated, however, the probative evidence has attributed the etiology of the veteran’s tinnitus to civilian noise exposure, not an undiagnosed illness. Further, while the Veteran is competent to report continuity of tinnitus symptomatology since service, the Board does not find him to be credible in this regard as, in a May 2018 statement, he himself agreed that tinnitus was not due to noise exposure, military or otherwise. In sum, the preponderance of the evidence is against the claim for service connection for tinnitus. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b). Increased Rating – Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Increased Rating – Muscle and Joint Pain/Stiffness The Veteran seeks a higher initial rating for his service-connected muscle and joint pain/stiffness. The Veteran was granted service connection for muscle and joint pain/stiffness, and assigned a 20 percent initial disability rating effective January 29, 2007. Therefore, the rating period on appeal is from January 29, 2007. 38 C.F.R. § 3.400. The Veteran’s disability is not listed in the rating schedule. Therefore, it is evaluated as a closely-analogous disease or injury that best approximates the Veteran’s symptomatic picture. 38 C.F.R. § 4.20. The Veteran’s disability is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5025. Such code provides for rating fibromyalgia-like symptoms with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, anxiety, or Reynauld’s-like symptoms: that require continuous medication for control (10 percent disabling); that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time (20 percent disabling); or that are constant, or nearly so, and refractory to therapy (40 percent disabling). As noted above, the Note to Diagnostic Code 5025 defined widespread pain as meaning pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e. cervical spine, anterior chest, thoracic spine, or low back) and the extremities. The Veteran’s wife submitted lay statements dated February 2007. She indicated, among other things, that the Veteran’s muscles and joints are so stiff that his hands can hardly pass his knees when he bends to try and touch his toes, that his knees occasionally swell up to five times their normal size, and that she was certain that the Veteran’s ailments are attributable to his service in the Gulf War. The Veteran had a VA examination in October 2008. He complained of pain and stiffness in his knees and elbows, stating that his knees hurt all the time with the pain varying from a 4/10 usually to an 8/10 during a flare-up. He indicated that he would grab his knee and stretch it to make the pain go away, and occasionally took ibuprofen. The Veteran reported that the pain in his elbow “comes and goes” with the usual level being a 3/10 increasing to a 6-7/10 during a flare-up. He denied taking medication for elbow pain. The Veteran reported severe weekly flare-ups of joint pain, lasting for hours, stops walking, and waits for the pain to go away. The Veteran reported having back pain, and described the level of pain as a 4-5 out of 10. He reported having flare-ups a couple of times a month. The examiner described the course since onset as intermittent with remissions. The examiner conducted range of motion testing, and found restricted flexion to 80 degrees with pain beginning at 70 degrees, full extension with pain beginning at 20 degrees, and concurrent evidence of pain on active and passive motion, and with repetitive use. The Veteran had an enlistment examination for the National Guard in February 2009. His upper and lower extremities were found to be normal. The Veteran denied any history of painful shoulder, elbow, or wrist, recurrent back pain or any back problem, numbness or tingling, swollen or painful joints, knee trouble, or having applied for any pension or compensation for any disability or injury. At his August 2011 post-deployment health assessment, he denied experiencing any muscle aches, weakness, or swollen, stiff, or painful joints. In December 2011 reassessment, he continued to deny experiencing the above conditions. In October 2012, the Veteran had a post-deployment physical. A VA physician noted that the Veteran reported “neck pain for years. Lower back – just annoying since he got he has gotten back.” The Veteran had a VA musculoskeletal examination in October 2014. The examiner interviewed the claims file and conducted an in-person examination of the Veteran. The examiner stated that the Veteran’s claimed muscle and joint pain cannot be attributed to a known diagnostic entity, and that it is at least as likely as not an objective indication of chronic disability resulting from an undiagnosed illness related to service in Southwest Asia. The examiner did not complete the disability benefits questionnaire, or explain the current severity of the condition. The Veteran also had a peripheral nerve VA examination in October 2014. The Veteran reported mild intermittent pain in his right and left upper extremities, and denied experiencing pain in his lower extremities. He had moderate paresthesias and numbness in his right and left upper extremities. The Veteran submitted lay statements with his notice of disagreement in October 2015. He stated that his widespread musculoskeletal pain and tender points with fatigue, stiffness, and sleeplessness, is not episodic. He claimed that his symptoms are constant and refractory to therapy. He requested a 40 percent rating. The Veteran received occasional VA treatment for musculoskeletal pain during the appeal period. In February 2016, he reported having pain in his elbows and knees, and receiving limited benefit from medication. He told the treating physician that his pain was not arthritis, and that he thought he had fibromyalgia. The physician suggested medication, but noted that there was no definitive test for fibromyalgia. The Veteran had a VA examination for elbow and forearm conditions in July 2017. The Veteran reported right elbow pain which began in 2000 after working at a water heater company for 9 years. The Veteran indicated that he was not overusing his elbow, and he did not seek medical care when his pain began. The Veteran also reported injuring his elbow after falling off a ladder in 2005. The Veteran stated that “nothing makes [his elbow pain] better or worse,” but nevertheless reported taking ibuprofen and medication, and finding both treatments effective. Upon range of motion testing, right arm flexion, extension, and forearm supination were normal. There was mildly decreased forearm pronation to 75 degrees bilaterally, which the examiner opined was likely a normal anatomical variant. The examiner made similar findings for the left side (ie. normal results, other than slight pronation limitation due to anatomical variant). The examiner did not note any pain, weakness, fatigability, or incoordination. The Veteran performed repetitive use testing with no additional loss of range of motion. There was no evidence of pain on passive range of motion, or in non-weightbearing situations. Upon range of motion testing, the Veteran exhibited restricted flexion, extension, and rotation, and exhibited lower back pain and stiffness. Regarding flare-ups, the examiner stated that it was not possible to determine additional limitations to functional ability with repeated use over time, because there is no empirical or conceptual basis for making such a determination without specifically observing function under those conditions. Testing revealed normal muscle strength, and X-rays showed normal osseus structures of the elbows. The examiner indicated that the Veteran’s condition did not impact his ability to perform occupational tasks. The Veteran also had a VA peripheral nerves examination in July 2017. The Veteran stated that his symptoms were primarily numbness and tingling, without dysesthesias or pain. The examiner found no evidence of constant or intermittent pain or paresthesias, but noted the presence of mild left and right upper extremity numbness. Muscle strength was normal, and the Veteran noted mild, incomplete paralysis of the median nerve. The lower radicular group of nerves was found to be normal. The examiner noted that the Veteran’s condition did not impact his ability to complete occupational tasks. The Board finds that the Veteran’s functional loss or impairment has not manifested to an extent that an initial rating in excess of 20 percent for muscle and joint stiffness/pain is warranted. Specifically, on VA examination in October 2008, the Veteran described the level of pain as a 4-5 out of 10. He reported having flare-ups only a couple of times a month, and the examiner described the course since onset as intermittent with remissions. The Veteran denied any history of joint pain or muscle aches in his February 2009 National Guard examination. In October 2012, the VA physician noted that the Veteran reported that his lower back was just annoying since he got he had gotten back from service. The Veteran did not manifest symptoms of right or left extremity knee pain at his peripheral nerve examination in October 2014. The Veteran reported pain in his knees in February 2016, but did not exhibit objective indications of functional loss. The July 2017 VA examiner documented no elbow pain or tenderness. Range of motion testing resulted in normal findings for elbow flexion, extension, and supination, and a slight limitation in pronation due to an anatomical variant. The Veteran reported that ibuprofen and medication were effective treatments, despite also stating that nothing makes his condition better. The July 2017 VA peripheral nerve examination did not note any muscle pain, tenderness, or weakness in the elbow joints or upper extremities. Considering the forgoing, the evidence does not warrant a higher rating for muscle and joint stiffness/pain. The Board has considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995), Burton v. Shinseki, 25 Vet. App. 1 (2011); see also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). However, the evidence does not show that his disability creates functional loss to an extent that a higher rating is warranted. Specifically, the Veteran’s complaints of joint pain and stiffness have been sporadic, and are often inconsistent with VA examination reports. Additionally, the Veteran admitted that treatments, including ibuprofen and other medication, are effective for his condition. This indicates that the Veteran has not exhibited functional loss consistent with widespread musculoskeletal pain and tender points that are constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. The Board finds that the Veteran’s pain and functional loss are encompassed by the rating provided, and a higher rating is not warranted at any time during the rating period. Additionally, the Board has considered the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the Board finds the totality of the record, including the July 2017 VA examination, is adequate for rating purposes and that a higher rating is not warranted based on painful limitation of motion, to include during flare-ups and after repetitive use. The July 2017 VA examiner elicited information regarding the characteristics and severity of the Veteran’s reported flare-ups. The examiner considered all available data, but was unable to say without speculation if pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, because she determined that there is no empirical or conceptual basis for making such a determination without specifically observing functional ability under those conditions. Further, such examination does not suggest that the results, including normal extension, flexion, and supination, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence. The Board has considered lay statements provided by the Veteran and his wife. A Veteran is ordinarily considered competent to report symptoms such as pain and muscle joint stiffness. Layno, 6 Vet. App. at 469. However, the Veteran’s credibility is undermined by obvious inconsistent statements. See Caluza, 7 Vet. App. at 511. For example, during the February 2009 National Guard enlistment examination, the Veteran denied any history of the following: painful shoulder, elbow, or wrist; recurrent back pain or any back problem; numbness or tingling; swollen or painful joints, knee trouble; and ever having applied for any pension or compensation for any disability. Such denials occurred after he told the October 2008 VA examiner that he experienced constant stiffness and pain in his elbows, back, and knees, and after he had filed a claim for disability compensation and pension with VA. Health assessments in August 2011 and December 2011 show that the Veteran did not report any muscle and joint pain during his second period of service, despite complaints of severe pain and stiffness in October 2008. Accordingly, the Board attributes low credibility and probative weight to the Veteran’s statements. The Veteran’s wife’s statements are not consistent with the Veteran’s reports to the National Guard, or with the medical evidence of record. See id. Thus, her statements are entitled to little probative weight. In sum, the Veteran’s service-connected muscle and joint stiffness/pain has not manifested a level of functional impairment to a degree that would be better   approximated by a higher rating. Staged ratings are not for application. See Fenderson, 12 Vet. App. at 126-27; Hart, 21 Vet. App. at 519. The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel