Citation Nr: 18156162 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-19 946 DATE: December 7, 2018 ORDER Service connection for fibromyalgia is denied. Service connection for chronic fatigue syndrome (CFS) is denied. An effective date earlier than March 11, 2016 for the increased disability evaluation of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for a sleep disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of fibromyalgia. 2. The Veteran does not have a current diagnosis of CFS. 3. The Veteran filed a claim for an increased rating for PTSD on March 11, 2016, after a final rating decision was issued in May 2008 that continued the 10 percent rating previously assigned. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for an effective date earlier than March 11, 2016 for the award of a 50 percent rating for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to September 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show the following: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A claimant 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Fibromyalgia The Veteran states that he has fibromyalgia linked to active service because during and since his period of service he has experienced pain in his muscles, migraine headaches, an inability to sleep, and constant fatigue. The Board notes, as discussed in more detail below, that there is presumption of service connection for fibromyalgia for Persian Gulf Veterans. See 38 C.F.R. § 3.317 (2017). The Board finds that a current disability—that is, one distinct from other disabilities for which service connection has already been awarded—is not established. The medical evidence of record, including the VA treatment records, show that the Veteran has not been diagnosed with fibromyalgia. A VA examination was performed in March 2011. The Veteran reported constant headaches, as well as pain involving his neck and shoulders. The examiner found that the Veteran did not have a diagnosis of fibromyalgia. The examiner stated that the Veteran’s symptoms were more typical of migraines with possible myofascial pain. The above evidence supports a finding that the Veteran does not have fibromyalgia. While the scope of the Veteran’s claim is not necessarily limited to fibromyalgia, his reported symptoms, which he claims as fibromyalgia, are manifestations of disabilities for which service connection has already been established, or symptoms attributed to another condition for which he has not sought service connection. Specifically, the Veteran’s headache condition has already been service connected and is rated as migraines. The Veteran’s low back and knee pain are manifestations of service-connected disabilities of the lumbosacral spine and bilateral knees. His difficulty sleeping and associated fatigue are manifestations of his service-connected PTSD (as discussed in more detail below with respect to the claim for chronic fatigue syndrome). Finally, the VA treatment records show that the Veteran had neck pain following a car accident in which he was hit from behind. See July 2015 CAPRI. He stated that he had not previously had a neck problem. He was diagnosed at the time with a muscle sprain following a motor vehicle accident (“s/p MVA”). Thus, the symptoms which the Veteran claims as fibromyalgia are shown to be due to other conditions for which service connection has already been awarded, or which are not reasonably encompassed by the claim (i.e. a neck injury following a car accident). The Board notes in this regard that the Veteran’s fibromyalgia claim does not reasonably encompass a claim for a discrete neck or shoulder condition, but rather for a systemic condition with diffuse or generalized body pain affecting multiple areas. The record shows that the Veteran completed medical school. Thus, he has the basic expertise to provide competent medical testimony. However, the competence of the evidence is distinct from its weight or probative value. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In other words, the sole fact that it is competent does not mean it is probative. In this case, for the reasons discussed above, the preponderance of the medical evidence shows that the Veteran has not been diagnosed with fibromyalgia. His unsupported statement carries little weight, especially as it does not account for the other conditions to which his symptoms have been attributed, as shown above. The Veteran’s personal interest in supporting a claim for benefits is an additional factor that detracts from the weight of his testimony, which is less reliable than the findings of objective medical professionals in this case. Finally, the Board notes that the Veteran served in Iraq, and thus qualifies as a Persian Gulf Veteran. See 38 C.F.R. § 3.317 (2017). For Persian Gulf Veterans, there is a presumption of service connection for an undiagnosed illness or medically unexplained chronic multisymptom illness without conclusive pathophysiology or etiology, including fibromyalgia. Id. For the presumption to apply, the illness must have become manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021. Id. As shown above, the Veteran does not have fibromyalgia, and the symptoms he claims as fibromyalgia have been attributed to diagnosed medical conditions. Accordingly, the presumption does not apply. In the absence of a diagnosis of fibromyalgia or probative evidence of a similar disability, a current disability is not established. Therefore, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the preponderance of the evidence weighs against the claim, service connection for fibromyalgia must be denied. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. CFS The Veteran states that he has CFS linked to active service because during his period of service he worked irregular hours which caused him to be “constantly tired” and experience ongoing body aches. The evidence shows that the Veteran does not have a current diagnosis of CFS. A VA examination was performed in March 2011. In the examination report, the examiner found that the Veteran did not meet at least six of the ten criteria for a diagnosis of CFS. The examiner observed that the Veteran’s symptoms were more in keeping with his PTSD. The VA treatment records show that the Veteran has not been diagnosed with CFS. The evidence of record does not otherwise show a diagnosis of CFS. Based on the above, the Board finds that a diagnosis of CFS or similar condition is not established. The Board has considered the Veteran’s assertion that he has CFS, but finds it is outweighed by the objective medical evidence discussed in the preceding paragraph. In this regard, because he has some medical expertise due to his completion of medical school, his testimony cannot simply be excluded from consideration as not competent. Moreover, his testimony regarding his symptoms is competent evidence, as symptoms are by definition a matter of subjective experience. Nevertheless, as stated above, the competence of evidence is distinct from its weight or probative value. In this case, more weight is accorded the findings of the VA examiner, who supported the conclusion with a specific explanation. The Veteran’s opinion is not supported by a sufficient explanation, to include accounting for his lack of sleep due to PTSD and consequent tiredness, and the fact that his body aches have been attributed to other conditions, as discussed above regarding the claim for fibromyalgia. Moreover, the Veteran’s personal interest in supporting his claim for benefits also detracts from the reliability of his statement that he has CFS, as compared to the findings of objective medical professionals who have no personal interest in the matter. Thus, the latter carries more evidentiary weight than the Veteran’s statements. Accordingly, the Veteran’s statement that he has CFS is outweighed by the March 2011 VA medical opinion. To the extent the Veteran’s fatigue may be due to a distinct sleep disorder, the claim for a sleep disorder is addressed below in the REMAND section. The Board notes that VA defines CFS as a medically unexplained chronic multisymptom illness, for which a presumption of service connection is available for Persian Gulf Veterans. See 38 C.F.R. § 3.317. Because the Veteran does not have CFS or an undiagnosed illness associated with fatigue (which has been attributed to sleep impairment), the presumption does not apply. In sum, the preponderance of the evidence weighs against a current diagnosis of CFS or similar condition. In the absence of a current disability, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366; Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the preponderance of the evidence weighs against the claim, service connection for CFS must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Effective Date The Veteran states than an effective date of August 2007 should be awarded for the 50 percent evaluation for his PTSD, as he filed a claim for an increased rating on that date. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). The effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1). The effective date of an award of increased compensation may alternatively be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In sum, three possible effective dates for an increased rating may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). As a result, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The Veteran filed a claim for an increased rating for his PTSD in August 2007, which was denied in a May 2008 rating decision. He initiated an appeal of that decision with a Notice of Disagreement (NOD). The RO then issued a Statement of the Case (SOC) in October 2009, following de novo review of the claim, which confirmed the denial. The Veteran did not then perfect the appeal with a substantive appeal (i.e. VA Form 9 or an equivalent statement) within the required time, and the appeal was closed. See 38 C.F.R. §§ 20.200, 20.302 (2017). Further, new and material evidence was not received by VA within one year of the May 2008 rating decision. See 38 C.F.R. § 3.156(b) (2017); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Accordingly, that decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Following the May 2008 rating decision and October 2009 SOC, the Veteran did not file another claim for an increased rating until March 11, 2016, which is the effective date of the 50 percent rating. The evidence does not show an increase in disability preceding the claim by a year or less. Accordingly, the Board finds that it was not factually ascertainable that an increase in disability occurred prior to March 11, 2016. Consequently, the effective date of March 11, 2016 for the award of the 50 percent rating for PTSD was proper. See 38 C.F.R. § 3.400(o). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating of 50 percent for PTSD prior to March 11, 2016. Therefore, an earlier effective date must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND IBS VA treatment records reflect a diagnosis of IBS since October 2010. In a June 2012 VA examination report, the examiner opined that the Veteran’s IBS was less likely than not the result of active service. The opinion was based on the absence of documented evidence of onset of symptoms while in active military service or immediately after separation from service. When VA obtains an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The basis of “absence of documented evidence of onset of symptoms…” alone, is not sufficient to determine that a disability is not related to service or could not have manifested thereafter as a result of service. In this regard, documentation is not necessarily required. Cf. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)) (holding that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner impermissibly ignored lay statements regarding an in-service injury and instead relied solely on the absence of evidence in the service treatment records to provide a negative opinion). Accordingly, the June 2012 VA medical opinion is not sufficient to make an informed decision. Therefore, a new opinion must be obtained. Sleep Disability The Veteran claims service connection for a sleep disability, stating that he experiences irregular sleep patterns and upsetting dreams about his experience in Iraq. Further, he states that during his period of service he worked irregular hours which caused him to be “constantly tired.” See October 2010 Correspondence. During active service, in a January 2004 post-deployment health assessment, the Veteran reported problems with sleeping. In a March 2011 VA examination, the examiner noted that the Veteran had a diagnosis of PTSD with sleep disturbances. The Board is unable to determine if the Veteran has a distinct sleeping disability that may be linked to service or caused or aggravated by his service-connected PTSD, or instead experiences sleep impairment solely as a symptom of his service-connected PTSD. Accordingly, a VA opinion is necessary to make an informed decision as to whether the Veteran has a discrete sleep disability that is caused or aggravated by his service-connected PTSD or directly linked to active service. The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records for the Veteran dated since March 2017. 2. Obtain a new medical opinion on the issue of service connection for IBS, as specified below. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s IBS is related to active service, taking into account the Veteran’s reports of in-service and post-service symptoms of diarrhea and constipation, including his report of eating local food from vendors while serving in Iraq, which frequently caused an upset stomach and diarrhea. The Veteran states that he self-treated at the time. Please note: The June 2012 VA medical opinion is not sufficient, as the examiner relied solely on the absence of documentation of IBS during service, without considering the Veteran’s statement that he did not seek treatment at the time. The examiner must consider the Veteran’s statements regarding the history of his symptoms. 3. Obtain a VA medical opinion addressing the issue of whether the Veteran has a discrete sleep disorder secondary to PTSD or directly related to active service, as specified below. The examiner is asked to address the following questions: (a.) Whether the Veteran has a discrete sleep disorder distinct from any sleep impairment as a symptom of PTSD. (b.) If a sleep disorder is diagnosed: a. Whether it is at least as likely as not (50 percent probability or greater) that any sleep disability is related to active service. The examiner should consider a January 2004 post-deployment health assessment, in which the Veteran reported problems with sleeping. He has stated that during service he worked irregular hours which caused him to be “constantly tired.” (Continued on the next page)   b. Whether it is at least as likely as not that any sleep disability is caused or aggravated (i.e. there is an increase in severity beyond a medically established baseline) by the Veteran’s PTSD. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel