Citation Nr: 1807093 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-01 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for diabetes mellitus type II. 3. Entitlement to service connection for cervical spine degenerative disc disease with spondylosis, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's Wife ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from February 1989 to May 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2010 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction of the appeal was subsequently transferred to the Honolulu, Hawaii RO. The Veteran testified before the undersigned Veterans Law Judge at a June 2016 videoconference hearing. A copy of the transcript is associated with the file. In October 2016, the Board remanded the claims for additional development. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDINGS OF FACT 1. The evidence does not show that the Veteran has had a diagnosis of fibromyalgia at any time during the appeal period. 2. The Veteran was advised on weight loss during service, but did not have elevated glucose readings or other indicators of diabetes mellitus during service. 3. The Veteran's diabetes mellitus first manifested many years after his service and has not been medically related to his service. 4. The Veteran experienced neck pain on occasion during service; however, his currently diagnosed degenerative disc disease of the cervical spine was first manifested many years after his service and has not been medically related to his service. 5. The evidence is not sufficient to show that the Veteran's cervical spine degenerative disc disease with spondylosis is proximately due to or aggravated by his service-connected bilateral back or knee conditions. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for diabetes mellitus, type 2, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309 (2017). 3. The criteria for service connection for cervical spine degenerative disc disease with spondylosis are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Relevant Legal Principles Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection generally requires evidence showing: (1) the existence of a current 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 during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis and diabetes mellitus, may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under section 3.309(a) may be established through a showing continuity of symptomatology since service). Analysis Fibromyalgia The Veteran asserts that he had fibromyalgia that began in service. See July 2016 Hearing Transcript. He reported experiencing muscle cramping, numbness and tingling sensation while in service. In order to be considered for service connection, a claimant must first have a disability. The Veteran's service treatment records do contain treatment for multiple pain syndrome and a tentative evaluation of fibromyalgia in March 1993. Although the record shows continuous complains of joint pain, the record does not contain a specific diagnosis of fibromyalgia. In a November 2016 VA medical opinion, the examiner opined that the Veteran did not have a diagnosis of fibromyalgia during the appeal period. The examiner reported that after review of the Veteran's medical records, the Veteran's complaints of chronic pain including both non-service connection and service-connected joint pain was evaluated for possible fibromyalgia by his VA primary care physician in September 2014 and there was a professional assessment that the Veteran did not meet the criteria for fibromyalgia. The examiner found the physician's assessment to be reliable. The examiner further explained that all of the Veteran's complaints of pain can be attributed to a non service-connected condition, a service connected condition, or a subjective symptoms not meeting the criteria for fibromyalgia. The only current complaints of pain that anatomically correspond to service-connected conditions are due to already service-connected disabilities. The Board finds the VA examiners' opinion adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale for his opinion, and his opinion was based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran. The opinion considered an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the more probative evidence of record indicates that the Veteran does not have a current diagnosis of fibromyalgia. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court of Appeals for Veterans Claims (Court) noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. The Court has held that this requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (holding that "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."). The Board has carefully considered the Veteran's lay statements regarding muscle pain. Significantly, pain is not a disease or injury that may be considered a disability for VA compensation purposes, without underlying pathology; rather, it is merely a symptom. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). The presence of a mere symptom (such as pain) alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as a disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Also, while the Veteran is competent to report on symptoms, he is not competent to diagnose the etiology of his symptoms. Diagnosing fibromyalgia is an inherently medical question. In the absence of competent evidence of a current disability manifested by joint pain during the course of the appeal, service connection cannot be granted for fibromyalgia. Diabetes Mellitus & Cervical Spine Disability The Veteran asserts that his diabetes mellitus had its onset in service. The Veteran also asserts that his cervical spine condition had its onset in service or is secondary to his service-connected back and bilateral knee disabilities. The evidence is clear that the Veteran has diagnoses of diabetes mellitus and cervical spine degenerative disc disease with spondylosis. See VA Treatment Records. Thus, the issue that remains disputed is whether the disabilities began in service, manifested to a compensable degree within one year of service, are proximately due to or aggravated by a service-connected disability, or are otherwise related to service. With respect to the Veteran's diabetes mellitus claim, service treatment records indicate dietary advice and potential elevated glucose levels, to include a March 1993 report. However, service treatment notes are silent for a diagnosis of or treatment for diabetes mellitus. In a November 2016 medical opinion, the VA examiner opined that Veteran's diabetes did not have its onset in service or within one year of separation. The examiner reasoned that based on the Veteran's service treatment records the Veteran did not meet the diagnostic criteria for diabetes mellitus in service and was not diagnosed with diabetes mellitus until August 2007. The examiner further stated that the onset of diabetes mellitus in 2007 is consistent with the Veterans VA treatment records dated from April 1996 to December 2003 with no finding of and no diagnosis of diabetes mellitus. Thus, the examiner concluded that the Veteran did not have diagnosis of diabetes mellitus until after December 2003 and most likely not until August 2007. The examiner further stated that although the Veteran received dietary counseling during service as noted in a November 1992 note in the Veteran's service treatment records, the counseling was for weight loss and is not evidence of diabetes mellitus in service. The examiner also stated that although records were cited in the remand request as showing elevated "glucose readings", the readings actually showed elevated cholesterol and triglyceride and not glucose. The actual glucose recordings taken in March 1993 and April 1993 were both normal. Thus, the examiner concluded that the Veteran's diabetes mellitus did not have its onset in service, did not manifest to a compensable degree within one year of service and is not otherwise related to service. As to the Veteran's cervical spine condition, service treatment records show the Veteran complained of neck stiffness and pain in October 1992 and December 1992. Service treatment records are silent for the diagnosis of a neck disability or injury. A December 1998 VA treatment note shows a diagnosis of osteoarthritis of the neck. The note indicated that the Veteran's osteoarthritis was exacerbated by a recent automobile accident where he sustained additional trauma to the cervical spine and had increased stiffness. The Veteran was afforded a June 2010 VA examination regarding his claimed cervical spine disability. The Veteran was diagnosed with degenerative disc disease of the cervical spine with spondylosis and the examiner determined that it was less likely as not related to his military service. The examiner reasoned that "there is no definitive documentation of a neck condition in the military record." The examiner indicates that he reviewed service treatment records; however, no mention is made of a December 14, 1992 documenting neck pain and assessment of a "C-spine" condition. In fact, the examiner specifically stated that treatment records did not document any neck pain, other than an October 1992 notation. The examiner's rationale also did not indicate that he considered the Veteran's lay testimony. An additional medical opinion was obtained in November 2016. The examiner opined that the Veteran's neck disability was not related to service. The examiner noted that the Veteran's cervical spondylosis is degenerative arthritis of the spine, which is a condition attributed to aging. The examiner also stated that the Veteran's currently diagnosed neck disability is consistent with the December 2009 imaging study obtained over 20 years after service, showing findings of degenerative arthritis and degenerative disc disease consistent with aging after military service. In addition, a prior imaging of the cervical spine obtained in September 1998 as part of an evaluation following a post-service motor vehicle accident was normal. The normal imaging of the cervical spine in September 1998 clearly and unmistakably establish that the Veteran did not have degenerative disc disease of the cervical spine with spondylosis in September 1998. In sum, serial imaging of the cervical spine establishes that the Veteran's currently diagnosed neck disabilities occurred several years after service, are consistent with aging, and did not occur as a result of remote events in service. The examiner also opined that the Veteran's current neck disability was not proximately due to or aggravated by his service-connected back and bilateral knee disabilities. The examiner again stated that the Veteran's neck disability is due to aging. He further reported that although the Veteran contends that his cervical spine condition may be a result of his service-connected back and knee conditions due to altered gait, this contention is not supported by his objective medical records. The Veteran's medical records consistently report that the Veteran had a normal gait. Furthermore, even if the Veteran has an abnormal gait at times, an abnormal gait has no direct effect on the cervical spine. Therefore, it does not cause degenerative disc disease or spondylosis. In addition, the Veteran's onset and diagnosis at the age of 43 is consistent with aging and not a result of his service-connected disabilities. Regarding aggravation, the examiner again reported that the Veteran's neck condition is due to aging and worsens with continued aging; the Veteran's degenerative disc disease of the cervical spine with spondylosis is a naturally progressive condition. In addition, an altered gait has no direct effect on the cervical spine and therefore does not have the ability to aggravate it. The Board finds that the VA examiners' opinions adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiners provided detailed rationales for their opinion, and their opinions were based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the current neck disability is not related to his service-connected back and knee disabilities. The Board has also considered the Veteran's assertions that his diabetes had its onset in service and his cervical spine disability is related to service or secondary to his service-connected back and bilateral knee disabilities. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's current diabetes mellitus and cervical spine disabilities are related to service or to a service-connected disability requires medical expertise to determine. Thus, the Board finds the VA medical opinion more probative than the Veteran's statements. As previously noted, diabetes mellitus and arthritis may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the evidence does not show that the Veteran's diabetes mellitus or cervical spine disabilities manifested to a compensable degree within one year of separation. The record explicitly shows that both disabilities were diagnosed several years after service. Therefore, presumptive service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for cervical spine degenerative disc disease with spondylosis, to include as secondary to service-connected disabilities is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs