Citation Nr: 18150230 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 09-02 807 DATE: November 14, 2018 ORDER Entitlement to service connection for a disability manifested by fatigue is denied. Entitlement to service connection for a disability manifested by joint and muscle pain is denied. FINDINGS OF FACT 1. The evidence shows that a disability manifested by fatigue is not related to service or caused or aggravated by service-connected disability. 2. The evidence shows that a disability manifested by joint and muscle pain is not related to service or caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a disability manifested by fatigue have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for establishing entitlement to service connection for a disability manifested by joint and muscle pain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310(b). In this case, the Veteran is service connected for urinary incontinence, intervertebral disc syndrome, anxiety and depression, erectile dysfunction, left and right radiculopathy, right testicular pain, and bowel dysfunction. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As a preliminary matter, the Board notes that it has characterized the issues on appeal as relating to a disability manifested by generalized joint and muscle pain and a generalized disability manifested by generalized fatigue in light of the Veteran’s statements regarding the nature and characteristics of the claimed disabilities. As to muscle and joint pain, while the Veteran has at times described muscle and joint pain in specific body parts in connection with this appeal, he has not consistently referred to one specific body part or region. See, e.g., March 2013 notice of disagreement; March 2016 hearing. Similarly, as to fatigue, in the June 2011 claim, for example, he claimed service connection for “fatigue” and at the March 2016 hearing, he reported that he had been diagnosed with chronic fatigue syndrome. The Board additionally notes that the Veteran has also made statements suggesting that these claimed disabilities are related to Gulf War Syndrome. Veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War may be entitled to compensation for an undiagnosed illness or medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117 (a)(2)(A), (B); 38 C.F.R. § 3.317 (a)(2)(A), (B) (2017). In this case, the Veteran’s DD-214s and personnel records show that his only foreign service took place in Korea. Accordingly, the provisions relating to compensation for certain disabilities occurring in Persian Gulf veterans are not for application. As noted above, the Veteran claims entitlement to service connection for disabilities manifested by joint/muscle pain and fatigue. The Veteran has attributed these claimed disabilities to service and/or to medications he is currently taking. The dispositive issue is therefore whether he has a current disability manifested by joint/muscle pain or fatigue that is related to service or secondary to service-connected disability. There is essentially one opinion on this matter. At a November 2016 VA examination, after reviewing the claims file and examining the Veteran, a VA physician concluded that it was less likely than not that a disability manifested by joint and muscle pain was related to service. He noted that although the Veteran had a history of a right rotator cuff surgery and biceps tenodesis, which had left him with residual pain, and had a recent fall and lacerated three fingers on his right hand, neither of these events have any connection to his service since they occurred 18 and 21 years after separation from service. As to a disability manifested by fatigue, the physician concluded that it was less likely than not that such disability was related to service because although he had signs and symptoms consistent with chronic fatigue syndrome, he has other health and mental conditions that can mimic or trigger those sign and symptoms. In addition, the examiner noted that there was no documentation in his military records that he developed chronic fatigue while in the service. In a November 2017 addendum, the same examiner concluded that it was less likely as not that the Veteran had a diagnosis of chronic pain syndrome that was related to service and that it was less likely as not that he had a diagnosis of chronic fatigue syndrome that was related to service. The examiner noted that the Veteran had been diagnosed with anxiety, depression, PTSD, sciatic pain, neck pain, chronic back pain, hip pain, and spondylolisthesis, displacement of lumbar intervertebral disc, all of which are a source of chronic pain and fatigue. In addition, the Veteran has sustained injury or undergone surgery since leaving service, for example undergoing right rotator cuff surgery and lacerated right hand pain, which can also contribute to his current overall pain. Further, there is no documentation showing a history of chronic fatigue syndrome or pain prior to service which might suggest aggravation and none of his medications have muscle aches as an adverse effect but rather most are to relieve pain and inflammation and other medications aid in stability of mood, which can also help to relieve pain. The Board affords the November 2016 and 2017 opinions significant weight as they were provided by a physician following a thorough review of the claims file, consideration of the Veteran’s specific contentions, reported history and symptoms, and are consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In this regard, the Board’s review of the service treatment records is negative for any diagnosis of a disability manifested by generalized muscle/joint pain or fatigue and although an October 2016 VA treatment record shows a diagnosis of chronic pain syndrome and the November 2016 VA examination shows a diagnosis of chronic fatigue syndrome, it is clear that the VA examiner’s opinion is that any such disability bears no relationship to service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Regarding the Veteran’s lay assertions that he has disabilities manifested by muscle/joint pain or fatigue that are related to service or service-connected disability, the Board does not find his statements competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion or current diagnosis depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: “[l]ay 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). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In the instant case, the question of whether the Veteran has a disability manifested by joint/muscle pain or fatigue that is related to service or service-connected disability is not something that can be determined by mere observation. Nor is this question simple. While the Veteran is competent to report symptoms such as fatigue, joint pain and muscle pain, the question of the cause of those symptoms is not an observable fact. It requires clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause. Therefore, the Board finds that the Veteran’s statements as to whether he has a disability manifested by joint/muscle pain or fatigue that is related to service or service-connected disability not competent evidence. In making these findings, again, the Board does not dispute that the Veteran is competent to report fatigue and joint/muscle pain or that the claims file shows that he has reported such symptoms. Rather, the Board does not find the Veteran competent to diagnose a disability characterized by generalized muscle/joint pain or generalized fatigue, or to relate any such disability to service or service-connected disability. The Board also does not dispute that many of the Veteran’s service-connected disabilities may include symptoms of muscle/joint pain or fatigue. To the extent the Veteran so contends, that is an issue that pertains to the current evaluation of his service-connected disabilities, to include whether the schedular criteria adequately encompass the symptoms of his service-connected disabilities. This, however, is not the question presently before the Board. The relevant question before the Board is whether the Veteran has a disability manifested by generalized joint/muscle pain or fatigue that is related to service or service-connected disability. As discussed above, the preponderance of the evidence shows that he does not. The benefit-of-the-doubt doctrine is therefore not for application and the claims must be denied. 38 U.S.C. § 5107(b). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel