Citation Nr: 18151878 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-28 429 DATE: November 20, 2018 ORDER Entitlement to service connection for fibromyalgia, including as secondary to service-connected obstructive sleep apnea is denied. REMANDED Entitlement to service connection for flat feet is remanded. Entitlement to service connection for left foot heel spur is remanded. Entitlement to service connection for right foot heel spur is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction, including as secondary to service-connected obstructive sleep apnea is remanded. Entitlement to service connection for chronic gastritis is remanded. Entitlement to a rating higher than 10 percent for cervical strain with degenerative arthritis is remanded. Entitlement to a rating higher than 10 percent for lumbosacral strain is remanded. Entitlement to a rating higher than 10 percent for left ankle disability, claimed as status post left ankle fracture, status post open reduction internal fixation with degenerative arthritis is remanded. Entitlement to a rating higher than 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to a rating higher than 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a rating higher than 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The competent medical evidence does not demonstrate a diagnosis of fibromyalgia. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia, including as secondary to service-connected obstructive sleep apnea, and including as a manifestation of an undiagnosed illness or chronic multisymptom illness are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1987 to November 2010. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Service connection is warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection for a disability there must be evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For Veterans who served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran asserts he has fibromyalgia, which he also claims as Gulf War syndrome and exposure to burn-pit and particulate matter. He further asserts that the claimed fibromyalgia is secondary to his service-connected obstructive sleep apnea. The Board has reviewed the Veteran’s service treatment records and post- service medical records and find no evidence of a diagnosis of fibromyalgia. In January 2017 he underwent a VA fibromyalgia examination. At that time, he described a history of fibromyalgia as experiencing multiple areas of musculoskeletal pain involving the feet, left ankle, knees, neck and back. He also reported a history of sleep disturbance and daytime fatigue. He reported intermittent swelling in joints, including the left ankle and knees. He stated he was frequently awakened during the night with neck and knee pain. He has not been diagnosed with fibromyalgia but expressed concerned about it as a possibility to explain his symptoms. He denied any history of myalgias. The medical evidence does not reveal a diagnosis of fibromyalgia and the Veteran is not undergoing treatment for the disorder. The January 2017 examiner opined that while the Veteran has widespread musculoskeletal pain, such pain is confined to joints for which he carries a confirmed diagnosis, such as degenerative joint disease of the cervical spine, lumbosacral strain, bilateral meniscal tears and degenerative arthritis of the left ankle; he does not describe myalgias. He has sleep disturbance and daytime fatigue, but these symptoms have been identified as the result of his documented service-connected obstructive sleep apnea. On examination he did not have a diagnostic number of typical tender points. The examiner noted further that there are alternative explanations for the Veteran’s symptoms of joint pain, sleep disturbance and fatigue; and he lacks confirmatory findings of fibromyalgia on examination. The examiner concluded that a diagnosis of fibromyalgia could not be confirmed. A January 2017 Gulf War general medical examination report shows there are no diagnosed illnesses for which an etiology was established. There were no additional signs and/or symptoms that represented an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness[.]” The Board recognizes that as a layperson the Veteran may, in some circumstances, opine on questions of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this instance, it requires medical expertise to determine whether symptomatology was diagnostic of fibromyalgia. The Veteran is not competent to determine whether such symptoms as described above constitute a chronic disability that occurred during active military service. VA examiners possess the medical training to provide a competent opinion. Their opinions are more probative. Here, the Veteran has explained his symptoms to a medical professional, but the medical professional did not find his condition as consistent with a medically unexplained chronic multi-symptom illness or with an undiagnosed illness. Thus, service connection for fibromyalgia is denied because there is no diagnosis for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no diagnosis of fibromyalgia at any time, the Board finds that the Veteran’s claim of entitlement to service connection for fibromyalgia on a secondary basis is not for application. Accordingly, the preponderance of the evidence is against the claim on a direct and secondary basis; the benefit of the doubt doctrine does not apply in this instance. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND In conjunction with his service connection claims for hypertension, erectile dysfunction, chronic gastritis, flat feet, left foot and right foot heel spurs and bilateral plantar fasciitis the Veteran was afforded VA examinations. In October 2014 he underwent VA examinations for hypertension and erectile dysfunction. In March 2015 he underwent a VA foot conditions examination that addressed his bilateral flatfoot disability and his bilateral plantar fasciitis. The March 2015 examiner did not mention the claimed left foot and right foot heel spurs in the report. The Board finds the October 2014 and March 2015 VA examinations inadequate because they do not provide medical opinions concerning the etiology of the claimed disorders. (Notably, an October 2014 VA medical opinion provides an etiology opinion on the matter of erectile dysfunction secondary to obstructive sleep apnea.). In addition, the March 2015 VA foot conditions examination report excluded an evaluation of the claimed bilateral heel spurs. Regarding chronic gastritis the Veteran did not undergo a VA examination that specifically addressed the disorder; but gastritis was noted in a VA examination report addressing hepatitis. A remand is necessary to obtain a medical opinion on the etiology of the claimed disorders of hypertension, erectile dysfunction, flat feet and bilateral plantar fasciitis; and to schedule examinations to ascertain the nature and etiology of his chronic gastritis and left foot and right foot heel spurs disorders. Regarding the Veteran’s cervical strain with degenerative arthritis, lumbosacral strain, left ankle, right knee, left knee and GERD disabilities, remand is required to afford the Veteran updated VA examinations to assess the current severity of his disabilities. The Veteran was last examined by VA for these disabilities in October 2014, more than 4 years ago. The Board finds the October 2014 examinations inadequate for rating the Veteran’s service-connection disabilities. As such, new VA examinations to determine the current level of severity are warranted. Any outstanding VA treatment records, pertinent to the Veteran’s claims should be obtained. In addition, the claim for a TDIU is remanded because it is inextricably intertwined with the claims being remanded. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from April 2016 to the present that are pertinent to the Veteran’s claims on appeal. 2. Obtain VA medical opinions for the October 2014 and March 2015 VA examination reports from an appropriate physician to ascertain the nature and etiology of the Veteran’s hypertension and erectile dysfunction. The claims file must be made available to the physician, and the physician must specify in the report that the claims file has been reviewed. Based on a review of the evidence of record, the physician is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hypertension and erectile dysfunction began during or were otherwise caused by the Veteran’s active military service? A detailed explanation/rationale is requested for all opinions provided. 3. Schedule the Veteran for a VA foot conditions examination to ascertain the nature and etiology of his current foot disabilities, including flat feet, bilateral plantar fasciitis and left foot and right foot heel spurs. The Veteran’s record, including a copy of this remand, must be made available for review, and the examiner should indicate that the Veteran’s record was reviewed in connection with the examination. All indicated tests or studies must be completed. The examiner should describe all findings in detail and provide opinions that respond to the following: (a) Please identify (by diagnosis) any foot disability. (b) Identify the likely cause of any (and each) foot disability diagnosed. Specifically, is there clear and unmistakable evidence (obvious, manifest, and undebatable) that any chronic foot disabilities preexisted the Veteran’s active service (July 1987 to November 2010). (c) If so, state whether there is clear and unmistakable evidence that the preexisting chronic foot disability was NOT aggravated (i.e., permanently worsened) during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. (d) If a chronic foot disability is NOT found to clearly and unmistakably exist prior to the Veteran’s service, is it at least as likely as not (50 percent or better probability) that chronic foot disabilities began during or were otherwise caused by the Veteran’s active military service? A detailed explanation/rationale is requested for all opinions provided. 4. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of his chronic gastritis disorder. The Veteran’s record, including a copy of this remand, must be made available for review, and the examiner should indicate that the Veteran’s record was reviewed in connection with the examination. All indicated tests or studies must be completed. The examiner must offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that chronic gastritis had onset during, or is related to, active military service. A detailed explanation/rationale is requested for all opinions provided. 5. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected cervical strain with degenerative arthritis, lumbosacral strain, left ankle, right knee and left knee disabilities. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail, utilizing the most up-to-date Disability Benefits Questionnaire. 6. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected GERD. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail, utilizing the most up-to-date Disability Benefits Questionnaire. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel