Citation Nr: 1807037 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 05-17 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a medically-unexplained chronic multi-symptom illness, to include chronic fatigue syndrome and fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to August 1989 and from December 1990 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the New York, New York RO. In December 2007, a Travel Board hearing was held before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is of record. By a November 2017 letter, the Board notified the Veteran that she was entitled to another hearing; however, the Board did not receive a response from the Veteran nor her representative within the allotted 30 days. An additional hearing request is therefore deemed withdrawn. In March 2010, the case was remanded by the Board for further evidentiary development of the issues on appeal, to include providing the Veteran with new VA examinations. A September 2014 rating decision granted service connection for depression, but denied the PTSD claim. In May 2016, the Board denied the service connection claim for a skin disorder and remanded the respiratory and multisymptom illness claims for an additional time in order to provide the Veteran with new VA examinations and to obtain all outstanding VA medical records. The Board prior remands also requested that the RO issue a statement of the case (SOC) for the Veteran's non-service connected disability pension claim. In January 2017, the RO issued a statement of the case denying the Veteran's claim, since she was service-connected for major depressive disability rated as 70 percent disabling. The Veteran has not perfected an appeal regarding the pension issue and it is not in appellate status. The issues of entitlement to service connection for bilateral hearing loss and bilateral knee conditions have been raised by the record and were referred to the Agency of Original Jurisdiction (AOJ) in the March 2010 and May 2016 Board remands. They do not appear to have been any development conducted yet; therefore, they are again REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of Operations from December 1990 to April 1991. 2. The competent and probative medical evidence show that the Veteran does not have currently diagnosed respiratory disability due to an undiagnosed illness. 3. Sinusitis and allergic rhinitis were not incurred and are not causally or etiologically related to service. 4. The evidence is at least in relative equipoise as to whether the Veteran has an unexplained chronic multi-symptom illness, diagnosed as fibromyalgia, as a result of service during the Persian Gulf War and which manifested to 10 percent disabling or more prior to December 31, 2021. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a respiratory disability, to include as due to an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2017). 2. The criteria to establish service connection for fibromyalgia, including as due to a qualifying chronic disability, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Notably, however, service connection can be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability 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 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disabilities (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom 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; (12) abnormal weight loss; and (13) menstrual disabilities. 38 C.F.R. § 3.317(b). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, 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, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms, and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Respiratory Disability - Analysis The Veteran asserts that she has a chronic respiratory disability, which was caused by exposure to toxins while serving in the Persian Gulf. Upon review of the medical and lay evidence of record, the Board finds that service connection for a respiratory disability is not warranted. Turning to the evidence, the Veteran's service treatment records (STRs) are silent to any complaints, treatments, or diagnosis of a respiratory disability or shortness of breath. Reserve treatment records dated in March 1999 show the Veteran reported having sinusitis and allergic rhinitis, and in September 2000 she was treated for an upper respiratory infection. VA treatment records show diagnoses of pharyngitis, chronic sinusitis, and asthma. In addition, July 1995 and May 1996 VA X-rays show no active disease and no evidence of acute pulmonary disease. During a June 2004 VA examination, the Veteran was diagnosed with asthma, but the report did not include a medical nexus opinion. The Veteran submitted statements in September 2003 and June 2005 describing how she gets congestion and "thick mucousy sputum" which prevents her from breathing normally. At the December 2007 hearing, the Veteran testified that during service she was stationed near burning oil fields and that she recalls smelling and breathing in a pungent, acid type substance that burned her throat, and about three months after service, she began having difficulty breathing, and she frequently spit up blood with mucus. The Veteran's partner submitted a letter in June 2010 indicating that he had witnessed her difficulties with respiration during the last 8 years, and her brother submitted a statement indicating that after returning from the Gulf War she complained that her sinuses were continually bothering her. During an October 2010 VA examination, the Veteran was diagnosed with mild intermittent bronchial asthma, but the examiner found that it was not at least as likely as not related to her active service, since she was not diagnosed with asthma during service, and her pulmonary function tests (PFTs) were normal in-service. The examiner also noted that the Veteran did not have an undiagnosed respiratory condition while in-service. Subsequent to the Board's May 2016 remand, the Veteran underwent an additional VA examination in February 2017. The examiner rendered a diagnosis of allergic rhinitis and opined that it was not related to service. The examiner's rationale noted that the Veteran's STRs do not show diagnosis of a respiratory condition and during the examination there was no current diagnosis of a respiratory condition or chronic sinusitis. The examiner further stated that the Veteran was treated for sinusitis in November 2003 and August 2005, but there was no evidence of any complaints or treatment of recurrent sinusitis. In addition, it was noted that PFTs in June 2004 were normal and a CT scan of the sinuses in August 2005 showed no evidence of a sinus disease. The examiner indicated that the Veteran was noted to have intermittent nasal congestion that started in 2003 and the diagnosis of allergic rhinitis best accounts for these symptoms. The examiner further indicated that the Veteran's lay assertions that she was stationed in Saudi Arabia near burning oil fields and that she first experienced difficulty breathing, shortness of breath, throat burning, and increased congestion while still in-service were carefully considered in formulating the nexus opinion. In this regard, the examiner stated that the symptoms of allergic rhinitis started in 2003, many years after discharge, and there was no temporal relationship between her symptoms and Persian Gulf service and exposure to environmental hazards such as burning fumes and smoke. The examiner indicated that exposure to these environmental hazards would produce symptoms immediately or within a short period of time after the exposure, but symptoms that started several years later are not related to the exposure based on the preponderance of established medical and scientific evidence, which does not support such a relationship. The Board notes that the Veteran is competent to report the symptoms she has experienced. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Nevertheless, under the facts of this case, the Veteran does not show to possess the necessary medical expertise to provide a nexus opinion showing a relationship between any currently diagnosed respiratory disability and her active duty service. Moreover, while the Court in Gutierrez v. Principi, 19 Vet. App. 1 (2004), stated that lay evidence and "purely subjective symptoms" showing non-medical indicators may establish a basis for a valid claim in Persian Gulf War/undiagnosed illness claims, here, there is a medical diagnosis of allergic rhinitis. The Board further notes that allergic rhinitis is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2017); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds the February 2017 VA examiner's opinion to be highly probative evidence, because the examiners provided a rationale (supported by an interview with an examination of the Veteran) and relied on professional training and specialized expertise as well as a review of the Veteran's claims file before determining that the Veteran did not have chronic sinusitis or an undiagnosed respiratory disability, and explained that her currently diagnosed allergic rhinitis was not related to service. Furthermore, while the Board acknowledges the Veteran's lay assertions that such symptoms began in-service, Reports of Medical History in her STRs dated in July 1994, February 1990, and March 1999 indicate that she specifically denied any shortness of breath, sinusitis, ear, nose, and throat trouble, asthma, or any other related symptoms. Accordingly, the Board finds that the evidence weighs against finding that a respiratory disability was causally or etiologically related to service; therefore, service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For these reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Medically Unexplained Chronic Multi-Symptom Illness - Analysis The Veteran also asserts that she has chronic fatigue syndrome or fibromyalgia that are related to her service in the Persian Gulf. As noted above, both chronic fatigue syndrome and fibromyalgia are considered "chronic disease[s]" resulting from undiagnosed illness and service connection will be presumed if shown to be manifested to a degree of at least 10 percent disabling prior to December 31, 2021. Initially, the Board notes that the Veteran does not have a current diagnosis of chronic fatigue syndrome. At a June 2004 VA examination, the Veteran reported symptoms of sleep disturbance and migratory joint pain, but the examiner concluded that she did not meet the diagnostic criteria for chronic fatigue syndrome. The October 2010 VA examiner also found that the Veteran did not have chronic fatigue syndrome, but that her symptoms were attributed to major depressive disorder. The same conclusion was reached by the February 2017 VA examiner, who noted that her fatigue did not result in her missing any time off work and was attributed to her psychiatric disorder. The laws authorizing Veterans' benefits provide benefits only where there is current disability, as identified by a medical diagnosis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the Veteran has not presented competent evidence showing that he has a current chronic fatigue syndrome. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). In analyzing this claim for chronic fatigue syndrome, the Board recognizes that the Veteran is competent to report her observable symptoms and signs of fatigue; however, her lay statements are not competent to establish that she has a current chronic fatigue syndrome disability, as under the facts of this case, she is not shown to be competent to render a medical diagnosis. Moreover, the record reflects that her complaints of fatigue and sleep disturbances are attributed to, and are being compensated for by her receipt of service connection for major depressive disorder. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Therefore, the Board finds that service connection for chronic fatigue syndrome is not warranted. Nevertheless, with regard to fibromyalgia, the Board finds that the evidence is at least in equipoise as to whether the Veteran had a current diagnosis during the pendency of this appeal. As aforementioned, service connection can be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, VA treatment records suggested that the Veteran had a diagnosis of fibromyalgia. Specifically, a September 2005 rheumatology treatment note indicates that the Veteran was evaluated for multiple joint discomfort, and physical examination found multiple trigger points. The medical professional rendered a diagnosis of chronic myalgia most likely due to underlying fibromyalgia. A September 2005 rheumatology specialist noted that the Veteran had widespread pain, poor sleep, and fatigue for 10 years, and found that the Veteran likely had fibromyalgia. The February 2017 VA examiner confirmed that the Veteran had a probable diagnosis of fibromyalgia, but opined that after the Veteran completed physical therapy she felt better, and at the time of the February 2017 examination, she no longer had tender points and other criteria for a diagnosis of fibromyalgia. Nevertheless, the fact that her fibromyalgia was not shown during this examination, does not render the prior diagnosis invalid. McClain, supra. Moreover, the Board notes that subsequent VA treatment notes dated in March 2017 show that the Veteran continued to complaint of joint pain, and the medical professional specifically referenced her previous diagnosis of fibromyalgia, which is presently shown on her active problem list. Accordingly, the Board finds that the Veteran's diagnosis is corroborated by VA treatment records noting her diagnosis and treatment for fibromyalgia throughout the appeal period. Thus, the weight of the evidence shows the Veteran has a diagnosis of fibromyalgia which has manifested to a degree of at least 10 percent disabling prior to December 31, 2021. Given the Veteran's service in the Southwest Asia Theater of Operations during the applicable period, service connection for fibromyalgia on a presumptive basis is warranted. ORDER Service connection for a respiratory disability, to include as due to an undiagnosed illness, is denied. Service connection for fibromyalgia is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs