Citation Nr: 18160927 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-30 519 DATE: December 28, 2018 ORDER Entitlement to service connection for chronic muscle pain as due to a medically unexplained multi-symptom illness is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has muscle pain that does not require continuous medication for control with essentially normal physical examination. 3. The weight of probative evidence is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic muscle pain are not met. 38 U.S.C. §§ 1110, 1117 (2014); 38 C.F.R. §§, 3.303, 3.317. 2. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1975 to April 1996. The Board sincerely thanks him for his service to his country. These matters come before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO) denying service connection for a muscle condition, and an October 2015 rating decision denying service connection for bilateral hearing loss. The Board notes that in his June 2018 Form 9, the Veteran said “I always can hear a tone or rushing sound in the background” and “I think the symptoms I have are more related to tinnitus.” Additionally, in an October 2015 VA exam, the Veteran described “tinnitus of a ringing sound.” Tinnitus is not an issue on appeal and has not been formally claimed, so the Board refers the matter for consideration by the RO. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2)-(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). 1. Service connection for muscle pain as due to a medically unexplained chronic multi-symptom illness. The Veteran served in the Gulf War. His DD-214 lists a Southwest Asia Service Medal and a Kuwait Liberation Medal. The Veteran reports chronic generalized muscle pain following his return from service in the Persian Gulf. In his February 2016 Notice of Disagreement (NOD), the Veteran stated that the pain is episodic and debilitating. He told the October 2015 VA examiner that he reported his muscle pain to his primary care provider, but no work-up was done and no diagnosis was made. He complained of diffused generalized muscle aches which he could not pin point to one area. He was advised to take motrin as needed. The Veteran stated that it “does not [a]ffect his ability to perform his daily activities of life.” In February 2016 the same physician stated that the Veteran “does not have any diagnosable condition of m[]uscles since Veteran does not have any particular muscle injury” and that a disability benefits questionnaire of the muscles would be inappropriate. The Board notes that the Veteran is competent to report symptoms such as muscle pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no affirmative evidence of a supervening condition or event that occurred between the Veteran’s service and the onset of the pain. 38 C.F.R. § 3.317(a)(7)(ii). As an initial matter, the October 2015 VA examiner’s opinion is not probative as it simultaneously suggests that the Veteran’s complaint of muscle aches is a diagnosable disorder; a disorder of unknown etiology; and an undiagnosed illness. The Veteran's complaints have not been medically attributed to any specific disease process such as arthritis. Notwithstanding the above, the preponderance of the evidence is against a finding that the muscle pains were incurred in service (the Veteran contends that they began following his service in Southwest Asia) or that they were manifest to a degree of 10 percent or more. Using 38 C.F.R. 4.71a, Diagnostic Code 5025 [fibromyalgia, fibrositis, primary fibromyalgia syndrome] by analogy, a 10 percent evaluation requires widespread musculoskeletal pain and tender points [on both the left and right sides, above and below the waist, and affecting the axial skeleton] that require continuous medication for control. 38 C.F.R. 4.71a, Diagnostic Code 5025. However, the evidence indicates that medication was prescribed on an as needed basis and was not required continuously. Alternately, the diagnostic code for evaluating rheumatoid arthritis (again, by analogy) as an active process only requires one or two exacerbations a year in a well-established diagnosis. In the alternative, residuals may be rated according to limitation of motion, and where there is noncompensable limitation of motion a rating of 10 percent is for application for each major joint or group of minor joints affected. Limitation of motion must be objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. 4.71a, Diagnostic Code 5002. The VA physician concluded that a VA muscles examination was not warranted and that the Gulf War examination revealed a normal physical examination. Further the examiner selected “no” in response to the question as to whether there was any functional impact of additional signs or symptoms that may represent an undiagnosed illness. Thus, the medical evidence is against a finding of functional limitation for VA purposes. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Without objective evidence of functional impairment, there is no basis for a grant of benefits under 38 C.F.R. 3.317, or on a direct basis. Saunders v. Wilkie, 886 F.3d 1356 (2018). The criteria for at least a 10 percent evaluation under Diagnostic Code 5002 or 5025 have not been met given the examination findings recited above. Accordingly, the claim is denied. 2. Service connection for bilateral hearing loss The Veteran contends that he has a bilateral hearing loss disability causally related to service. The Veteran served in an artillery unit, and was therefore exposed to loud noises. His Service Treatment Records (STRs) state he was in position to be “routinely exposed to hazardous noise,” and was issued ear protection. However, the STRs are otherwise void of any complaint of noise-related hearing loss. An October 2015 VA examination report reflects that pure tone air thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 35 30 LEFT 15 25 20 30 20 The word recognition score was 100 percent for the right ear and 98 percent for the left ear using the Maryland CNC word list test. Based on the above, the Board finds that the Veteran has not had a bilateral hearing loss disability for VA purposes at any point during the appeal period. He has not had an auditory threshold of 40 decibels or greater in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz, a threshold of 26 decibels or greater for at least three of these frequencies, or a speech recognition score using the Maryland CNC Test of less than 94 percent. At this juncture, the Board finds that the evidence does not establish the presence of a current hearing loss disability by the VA standards in either ear at any time during the pendency of the appeal. Accordingly, service connection for hearing loss must be denied on this basis. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (stating that in the absence of proof of a current disability, there can be no valid claim of service connection). While the Board acknowledges the Veteran’s hearing difficulty, as described in both his NOD and his Form 9, the Board must give greater weight to the audiometric testing and medical findings necessary to properly assess the disorder per the regulations. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel