Citation Nr: 1807434	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO. 14-21 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1980 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file.


FINDINGS OF FACT

1. The Veteran is a "Persian Gulf Veteran."

2. The evidence is in relative equipoise that the Veteran's fibromyalgia is a manifestation of a medically unexplained, chronic multi-symptom illness. 


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for service connection for fibromyalgia as a manifestation of a medically unexplained, chronic multi-symptom illness have been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The issue of service connection for fibromyalgia has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of this issue, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 

Service Connection for Fibromyalgia- 
Qualifying Chronic Disability under 38 C.F.R. § 3.317

In October 2010, the Veteran received a diagnostic impression of fibromyalgia during a VA Gulf War examination. The Veteran contends that his fibromyalgia is a result of his service in Southwest Asia. The Board will grant the claim,
 
Service connection may be granted for a disability resulting from a 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 also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease 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). 

Service connection may also be established for a chronic disability manifested by certain signs or symptoms 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. § 1117; 38 C.F.R. § 3.317 (a)(1); see also 81 Fed. Reg. 73182 (October 17, 2016) (extending the presumptive period to December 31, 2021). 

The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. 
§ 3.317(d).

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained, chronic multi-symptom illness that is defined by a cluster of signs or symptoms; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a). 

A medically unexplained, chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes fibromyalgia. 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 will not be considered medically unexplained. 38 C.F.R. 
§ 3.317 (a). 

"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). Signs or symptoms which may be manifestations of an undiagnosed illness or a medically unexplained, chronic multi-symptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; 
(4) muscle pain; (5) joint pain; (6) neurologic signs and 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). 

Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a).

The Veteran has confirmed service in the Persian Gulf. The Veteran's DD Form 214 reflects that the Veteran served in Southwest Asia between November 1990 and April 1991. 

Fibromyalgia is a "qualifying chronic disability" for purposes of 38 C.F.R. § 3.317. Fibromyalgia is specifically listed as a manifestation of a medically unexplained, chronic multi-symptom illness under 38 C.F.R. § 3.317(a)(2). 

The Veteran's VA and private medical records demonstrate that he sought medical treatment for ongoing joint pain for several years. The Veteran complained of joint pain since 1993. As noted, the Veteran received a diagnostic assessment of fibromyalgia in October 2010. The evidence therefore establishes the Veteran's fibromyalgia has existed well in excess of six months and is therefore considered chronic. 38 C.F.R. § 3.317 (a)(4).

Finally, the evidence also demonstrates that the Veteran's fibromyalgia became manifest to a degree of 10 percent or more no later than December 31, 2016. See 38 C.F.R. § 3.317 (a)(1)(i). Under the schedular rating criteria for fibromyalgia, a 10 percent rating is warranted for widespread musculoskeletal pain that required continuous medication for control. 38 C.F.R. § 4.71a, DC 5025 (2015). In this case, the medical evidence reflects the Veteran has been prescribed medication for his fibromyalgia to control his ongoing joint pains/fibromyalgia. The Board therefore concludes that his fibromyalgia has become manifest to a degree of 10 percent.

Although the October 2010 VA examiner opined that the Veteran did not demonstrate any conditions related to environmental exposure, such a nexus is not necessary as fibromyalgia is disorder that is presumptively linked to qualifying active service in the Persian Gulf. See generally Stankevich v. Nicholson, 19 Vet. App. 470, 472  (2006) ("The very essence of an undiagnosed illness is that there is no diagnosis."); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran's symptoms "cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117"); 60 Fed. Reg. 6660, 6665 (Feb. 3, 1995) ("The undiagnosed illness provisions of Public Law 103-446 , as implemented by § 3.317, were specifically intended to relieve the unique situation in which certain Persian Gulf War veterans found themselves unable to establish entitlement to VA compensation because their illnesses currently cannot be diagnosed.").

Although a VA examiner found that the Veteran's fibromyalgia was related to depression and PTSD, he relied on erroneous information, as the Veteran does not have a current diagnosis of PTSD. Accordingly, the October 2010 VA examiner's opinion is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premises are not probative); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the veteran's report of an in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion).

The Board finds that the criteria for service connection for fibromyalgia have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 



ORDER

Service connection for fibromyalgia is granted.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs