Citation Nr: 1807098	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  05-32 618A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a disability manifested by muscle and joint pain of the ankles and hands under the provisions of 38 C.F.R. § 3.317 .


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1989 to November 1993.  Service in Southwest Asia and receipt of the Combat Action Ribbon is demonstrated by the evidence of record.

This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  Original jurisdiction in this case now resides with the RO in New Orleans, Louisiana.

 In July 2009, the Veteran testified at Board videoconference hearings before the undersigned.  A transcript of that hearing is of record. 

In January 2010, the Board remanded the appeal for additional evidentiary development, after which, in November 2011, the Board issued a decision denying the Veteran's claims.

Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board's November 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the hearing officer that conducted the July 2009 hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board.  Subsequently, the Veteran requested a new hearing. The Board then vacated the prior decision and the Veteran testified at a new Board videoconference hearing in January 2015.  A transcript of that hearing is also of record.

In an October 2015 decision, the Board again denied the issues on appeal.  The Veteran appealed the denial of service connection for a disability manifested by muscle and joint pain of the ankles and hands under the provisions of 38 C.F.R. § 3.317 to the United States Court of Appeals for Veterans Claims (Court).  In August 2017, the Court issued a Memorandum Decision, vacating the Board decision and remanding the matter for further development consistent with the Court's decision.

With respect to the remaining issues on appeal, the Court held that the Veteran had abandoned his appeal of those matters.  Moreover, the Court also noted that the Veteran did not challenge the Board's determination regarding entitlement to service connection for a disability manifested by muscle and joint pain of the ankles and hands on a direct basis. 


FINDINGS OF FACT

1.  The Veteran had active military service in the Southwest Asia Theater of operations.

2.  The Veteran's muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, was incurred in service or resulted from a medically unexplained chronic multisymptom illness.


CONCLUSION OF LAW

The criteria for service connection for muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, as part of a medically unexplained chronic multisystem illness, have been met.  38 U.S.C. §§ 1110, 1117, 1131, 5107 (2014); 38 C.F.R.  §§ 3.102 , 3.303, 3.317 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking service connection for a disability manifested by muscle and joint pain of the ankles and hands.  The Veteran has consistently reported experiencing pain and stiffness in his ankles and hands for many years.  As noted in the Board's prior October 2015 decision, the Veteran is competent to report such symptoms and the Board finds no reason to doubt his credibility.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.  § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

As noted above, in this case, the Veteran has asserted that his muscle and joint pain of the ankles and hands were due to an undiagnosed illness or other qualifying, chronic disability, pursuant to 38 U.S.C.A. § 1117.  Service records show that the Veteran had service in the Southwest Asia theatre of operations and, in turn, is considered a Persian Gulf War veteran pursuant to 38 C.F.R.  § 3.317.  Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of 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 which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R.  § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2021).  

A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary 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; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Initially, the Board notes that service treatment records are silent with respect to any complaints of muscle and joint pain of the ankles and hands.  

The Veteran filed his claim for service connection in March 2003.  February 2004 and October 2004 VA examinations attributed the Veteran's hand pain to use of hands at work as a cook and his ankle pain to being overweight.  The Veteran was afforded another VA examination in May 2010.  The examiner indicated that there was no reason to doubt that the Veteran experienced intermittent hand or ankle pain or stiffness, but specified that the respective examinations of each hand and ankle were normal without indication of any inflammatory process.  X-rays of the hands and ankles were also pertinently normal.  In her discussion of the Veteran's hands and ankles, the VA examiner specifically found that "there is no evidence of an unexplained or undiagnosed multi-symptom illness," and the Veteran's reported history and examination results were "not consistent with Gulf War illnesses or fibromyalgia."

However, subsequent VA and private clinical records show that the Veteran's muscle and joint pain have been attributed to fibromyalgia. In this regard, an August 2016 private record showed that the Veteran reported a longstanding history of generalized muscle and joint pain for 22 years.  The examiner's impression was primary and secondary forms of fibromyalgia.  VA clinical records around this time also show an assessment of fibromyalgia.  

Based on a review of the evidence, the Board concludes that service connection for muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, is warranted.  As discussed above, the Veteran served during the Persian Gulf War and fibromyalgia is considered to be a medically unexplained chronic multisymptom illness.  The Veteran has consistently reported that he had symptoms of muscle and joint pain that began many years ago (post-deployment).  The Veteran's contentions are sufficient to establish that the onset of his symptoms began soon after service separation.  The Board recognizes that the May 2010 examination indicated that the Veteran did not meet the criteria for fibromyalgia.  However, subsequent VA and private clinical records show that the Veteran does meet the criteria for fibromyalgia.  Moreover, the remaining evidence of record does not affirmatively attribute the fibromyalgia to any other supervening condition or event. 

As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran has currently diagnosed fibromyalgia due to his service in Southwest Asia.  Accordingly, when resolving reasonable doubt in the Veteran's favor, and in considering the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War, as well as the pertinent medical evidence of record, the Board finds that it is at least as likely as not that he has muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, that was incurred in service.  Therefore, the claim for service connection for muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, is granted pursuant to 38 C.F.R. § 3.317 (2017).  38 U.S.C. § 5107 (b) (2014); 38 C.F.R.  § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Service connection for muscle and joint pain of the ankles and hands, diagnosed as fibromyalgia, is granted.




____________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs