Citation Nr: 18156831 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 13-15 267 DATE: December 11, 2018 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. Entitlement to service connection for left knee patellofemoral osteoarthritis (left knee condition) is granted. REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a bilateral shoulder condition is remanded. Entitlement to service connection for a neck condition 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 IBS. 3. Resolving reasonable doubt in the Veteran’s favor, his left knee condition is related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibromyalgia and degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1966 to February 1968 and from September 1990 to May 1991. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e)(1) (2017). The law currently defines a qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms (including fibromyalgia and IBS), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117 (2012). 1. Entitlement to service connection for fibromyalgia 2. Entitlement to service connection for IBS The Veteran seeks service connection for fibromyalgia and IBS due to his service in the Persian Gulf. The first element of a VA disability claim is the existence of a current disability. At no time during the appeal process has the Veteran had a diagnosis of fibromyalgia or IBS. Specifically, in a September 2017 VA examination, the examiner found that the Veteran does not have fibromyalgia. At his October 2017 VA examination, the examiner specifically found that the Veteran did not have IBS. The examiner explained that the Veteran’s symptoms are due to his uncomplicated constipation, which had been diagnosed by a gastroenterologist. The examiner explained that it had a specific etiology and was not related to environmental contaminant exposure in Southwest Asia. Additionally, at the Veteran’s May 2014 hearing, he testified that he has never received a diagnosis of IBS. He also testified that a doctor told him he “could” have fibromyalgia. This possibility was investigated by the VA examiner, who concluded that he did not have fibromyalgia. The remaining VA and private medical evidence does not contain diagnoses of fibromyalgia or IBS. The lay evidence of record does not support a finding that the Veteran has either fibromyalgia or IBS. The Veteran referred to “possible fibromyalgia” and joint pain in an August 2006 statement, and listed fibromyalgia on his Notice of Disagreement, but did not provide additional lay statements to support these claims. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary’s adjudication of the claim). Although service connection for fibromyalgia is denied, the Board notes that the Veteran’s claim has been categorized as fibromyalgia with degenerative joint disease because he also claimed joint pain. He carries diagnoses of shoulder and cervical spine arthritis, and those claims have been separated and remanded for additional development below, along with his back disability claim. Accordingly, the preponderance of the evidence of record does not show that the Veteran has a diagnosis for VA purposes of a disability. Therefore, the Board finds that the service connection is not warranted. Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a left knee condition The Veteran contends that he has a left knee condition that began in service. The preponderance of the evidence supports finding that the Veteran’s left knee condition began in service. The Veteran has had three VA examinations during the appeal period: September 2017, January 2013, and September 2011. The Veteran was diagnosed with degenerative arthritis, mild patellofemoral osteoarthritis, and chondromalacia, respectively. The September 2017 examiner opined that the Veteran’s left knee condition is a disease with a clear and specific etiology and diagnosis, and has no recognized relation with a Southwest Asia exposure event. In a separate opinion, the examiner states that the Veteran’s service treatment records are silent for an in-service left knee injury and provides a negative nexus opinion. The other examiners did not give a service connection opinion. At the January 2013 VA examination, the Veteran attributed his left knee injury to repetitive overuse injuries while in service. Additionally, at the September 2017 examination, the Veteran stated that he has had left knee pain for more than 15 years and that it started when he returned from deployment in 1991. At the April 2014 hearing, the Veteran testified that he went to sick call a number of times, because he could not run the two-mile run due to problems with his knees. He stated that the pain worsened throughout his deployment and has caused pain since coming home from the deployment. The Board finds that the Veteran’s left knee pain statements are competent. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses). Moreover, the Board finds that the Veteran’s statements are credible. His reports of pain throughout his deployment and since that time are highly probative evidence in support of a finding that the symptoms he experiences currently are the same as those he had in service. Arthritis is a chronic disease as set forth in 38 C.F.R. § 3.309(a). This means that the theory of continuity of symptomatology applies. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the Veteran’s consistent reports of left knee symptomatology since leaving his deployment more probative than the September 2017 VA negative nexus opinion. Therefore, resolving reasonable doubt in the Veteran’s favor, the preponderance of the evidence supports a finding of service connection for a left knee disability. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lower back condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lower back condition because the September 2017 VA examination is inadequate. More specifically, the examiner opined that the Veteran’s lower back condition cannot be presumptively service-connected due to Southwest Asia environmental contaiminant exposure, because it is a disease with a clear and specific etiology. In a separate opinion, the examiner opined that they were unable to establish a nexus between the Veteran’s current back condition and in-service back condition and that there is no objective medical evidence at that examination to suggest permanent aggravation of the the Veteran’s civilian job back injury which occurred between his periods of active duty. However, the examiner did not consider the Veteran’s lay statements regarding his back pain. He stated that his back injury is due to loading and carry ammunition as part of his military job in his mortar unit. Additionally, at the September 2017 VA examination, the Veteran reported lower back pain for more than 15 years, right lower extremity radicular pain for more than seven years, daily pain, and states that he has had back problems since returning from his 1991 deployment. A new opinion is needed addressing direct service connection due to the events of the Veteran’s lay statements and aggravation of his civilian employment injury. 2. Entitlement to service connection for a bilateral shoulder condition is remanded. 3. Entitlement to service connection for a neck condition is remanded. As part of its denial of service connection for “fibromyalgia and degenerative joint disease,” the August 2018 Supplemental Statement of the Case concluded that service connection for bilateral shoulder degenerative joint disease was denied due to no diagnosis. However, a January 2013 VA examiner diagnosed the Veteran with bilateral mild acromioclavicular osteoarthritis. Given that the Veteran does have a diagnosis, the Board needs a nexus opinion before it can make a fully-informed decision on the issue of entitlement to service connection for a bilateral shoulder condition. The Veteran’s claim for fibromyalgia also included credible descriptions of joint pain, and the RO interpreted the claim to be one for fibromyalgia and degenerative joint disease. Although the August 2018 SSOC limited its discussion to the Veteran’s shoulders, the April 2013 Statement of the Case specifically discussed his neck as well. The Veteran was diagnosed with spondylosis of the cervical spine at his January 2013 VA examination. A nexus opinion is necessary before the Board may decide this claim. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to determine the etiology of his lower back condition. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination of the Veteran is only necessary if deemed so by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran’s lower back condition clearly and unmistakably existed prior to his entry into active military service. b. If the lower back condition is found to have clearly and unmistakably existed prior to service, whether it is also clear and unmistakable that it was not aggravated to a beyond that which would be due to the natural progression of the disease. c. If the lower back condition is not found to have preexisted a period of active service, determine whether it is as least as likely as not (50 percent or greater probability) that it began in or is related to active military service, or; if arthritis is diagnosed, whether it began within one year of separation from service. The examiner is advised that the evidentiary standard for whether a condition existed prior to service is “clear and unmistakable,” which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Although an independent review of the claims file is required, the Board draw’s the clinician’s attention to the following: a. An October 1990 service treatment record noting complaints of low back pain and right leg pain for the previous two weeks after physical training activities, and referring to an injury sustained during civilian employment one year prior. b. A subsequent October 1990 service treatment record noting improvement in the Veteran’s back pain, but he remained unable to do sit-ups and still had right leg pain. c. A subsequent October 1990 service treatment record showing that the Veteran was on profile and not allowed to run due to low back pain and leg pain. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for both his neck condition and bilateral shoulder condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neck condition began in service or; is related to his active service, or; if arthritis is diagnosed, began within one year of separation from service. b. Whether it is at least as likely as not that the Veteran’s bilateral shoulder condition began in service or; is related to his active service, or; if arthritis is diagnosed, began within one year of separation from service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel