Citation Nr: 20007553 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 12-17 588A DATE: January 29, 2020 ORDER Service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. Service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. FINDINGS OF FACT 1. The probative evidence of record does not show that the Veteran has fibromyalgia, or that his claimed symptoms of fibromyalgia are related to his service. 2. The probative evidence of record does not show that the Veteran has chronic fatigue syndrome, or that his claimed symptoms of fatigue are related to his service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.317. 2. The criteria to establish service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to July 2008. This matter was previously before the Board of Veterans’ Appeals (Board) in June 2017 when the matter was remanded for an addendum opinion to the April 2011 VA examination. The addendum opinion was provided in February 2019. A supplemental statement of the case was issued to the Veteran in September 2019. Additional development having been completed in accordance with the June 2017 Board remand, this matter is now before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 was incurred in service. 38 C.F.R. § 3.303(d). The disorders adjudicated herein are not an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is a condition that, by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multi-symptom illness is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A 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)(2)(ii). 1. Service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. The Veteran contends that he has fibromyalgia that developed as a result of his service during the Gulf War. The Veteran's June 1988 enlistment evaluation does not indicate complaints, treatment, or diagnosis of fibromyalgia or joint pain. An August 1992 service treatment record (STR) indicates right knee pain for three years. A September 1994 STR indicates that the Veteran reported painful joints. A February 1998 STR indicates a history of arthritis, rheumatism, or bursitis. The Veteran’s STRs make no mention of complaints, treatment, or diagnosis of fibromyalgia. The Veteran's February 2005 Gulf War questionnaire is absent of complaints of fatigue, swollen, stiff or painful joints. In an October 2010 VA treatment record, the Veteran reported having right knee and shoulder pain. During a December 2010 VA examination, the Veteran reported a history of knee pain. In an April 2011 VA examination, the examiner stated that the Veteran’s claims file and medical records were reviewed. The examiner noted an in-service diagnosis of knee bursitis and bilateral patellofemoral syndrome. The examiner also noted that the Veteran reported daily pain when squatting or kneeling. The examiner noted a history of elbow and right shoulder pain. The examiner noted that there were no symptoms of fibromyalgia exhibited. The examiner stated that, for the claimed condition of fibromyalgia, there was no pathology found to support a diagnosis. No opinion was rendered. In a December 2016 private medical letter, Dr. T.H. stated that he examined the Veteran and reviewed his military medical records. Dr. T.H. opined that the Veteran exhibits symptoms that are consistent with fibromyalgia. Dr. T.H. stated that the Veteran's pain is consistent on both sides of his body, above and below the waist. Dr. T.H. stated that these symptoms are apparent in the Veteran's medical records. Dr. T.H. opined that the Veteran’s symptoms can be attributed to his service. However, Dr. T.H.'s opinion does not show a knowledge that the Veteran has already service-connected disorders of the right shoulder, left knee femoral pain syndrome with a history of chondromalacia and right knee patella femoral pain syndrome with a history of chondromalacia. In this respect, Dr. T.H.’s opinion largely reiterates matters of record – that the Veteran has some service-connected orthopedic disorders and symptoms which have been recognized as attributable to the Veteran’s service. There is also no other explanation as to the clinical information ascertained from the Veteran - the extent of the examination is not known as no detail is provided as to the extent of it. Thus, this opinion is of low probative value. Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In a February 2019 private medical letter, Dr. G.D. stated that he met with the Veteran in February 2019 to discuss the Veteran’s chronic pain condition. Dr. G.D. stated that the Veteran has longstanding low back, bilateral extremity, left shoulder, and elbow pain. Dr. G.D. noted the Veteran’s reported history of over 70 parachute jumps and opined that the Veteran’s military service would more likely than not be responsible for the pain that the Veteran is currently experiencing. Similar to the opinion of Dr. T.H., Dr. G.D. reiterates known matters of symptomatology but the physician does not show an awareness of the already service-connected disorder. It is unclear as to whether Dr. G.D. reviewed the Veteran’s file or clinically examined the Veteran. Thus, Dr. G.D.’s opinion is based on inadequate rationale. Therefore, this opinion is of low probative value. Bloom v. West, 12 Vet. App. 185 (1999) (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). In a February 2019 VA addendum opinion to the April 2011 VA examination, the examiner stated that there is no evidence of a currently diagnosed disability in the available supporting medical documentation, and a review of the medical records did not support a diagnosis of a chronic condition related to the claim of fibromyalgia, as there was no pathology present. The examiner stated that the Veteran does not meet the diagnostic criteria for fibromyalgia. The February 2019 addendum is highly probative. It clearly indicates that the examiner reviewed in depth several source medical texts on the diagnosis of fibromyalgia. He cited applicable diagnostic criteria as to pain indexing, literature review, relevant literature as to the relationship between fibromyalgia and mental disorders such as the already service-connected PTSD. Although specific medical inquiry has been undertaken to determine if the Veteran has fibromyalgia, no examiner with a demonstrated review of the record has confirmed such a diagnosis. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claims for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board has considered the Veteran’s statements that he has fibromyalgia that is related to his military service. However, he is not competent to provide an opinion regarding the diagnosis and etiology of his reported symptoms. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the diagnosis and etiology of fibromyalgia, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The questions of diagnosis and etiology in this case go beyond a simple and immediately observable cause-and-effect relationship, particularly considering his multiple medical conditions and the delayed onset of his symptoms. The preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service connection for chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. The Veteran has contended that he has chronic fatigue syndrome that developed as a result of his service during the Gulf War. The appeal will be denied. For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a (2018). The Veteran's June 1988 enlistment evaluation does not indicate complaints, treatment, or diagnosis of chronic fatigue syndrome. An August 1992 STR indicates right knee pain for three years. A September 1994 STR indicates that the Veteran reported painful joints. A February 1998 STR indicates a history of arthritis, rheumatism, or bursitis. The Veteran’s STRs make no mention of complaints, treatment, or diagnosis of chronic fatigue syndrome. As noted above, the Veteran's February 2005 Gulf War questionnaire absent of complaints of fatigue, swollen, stiff or painful joints. In a July 2009 VA treatment record, the Veteran complained of general fatigue. In an April 2011 VA examination, the examiner stated that the Veteran’s claims file and medical records were reviewed. The examiner noted the Veteran’s report that his fatigue began gradually after returning from Iraq. The examiner also noted the Veteran’s reports of trouble with falling asleep and staying asleep, which causes him to feel sleepy during the day. The examiner noted symptoms of sleep disturbance, headache, enlarged cervical lymph nodes, and enlarged axillary lymph nodes. The examiner noted that the Veteran reported that his cervical lymph nodes are constantly enlarged and that his axillary lymph nodes are intermittently enlarged. The examiner noted that the Veteran reported that his headaches began a month before the examination in the month of March when the flowers started blooming. The examiner opined that the Veteran’s headaches are most likely related to seasonal allergies and not to the current claim. The examiner stated that, for the claimed condition of chronic fatigue syndrome, there was no pathology found to support a diagnosis. No opinion was rendered. In a January 2013 VA treatment record, it was noted that the Veteran’s fatigue has been present for four to five months. In a December 2016 private medical letter, Dr. T.H. stated that he examined the Veteran and reviewed his military medical records. Dr. T.H. opined that the Veteran exhibits symptoms that are consistent with chronic fatigue syndrome. Dr. T.H. stated that the Veteran's current symptoms are apparent in his medical records and can be attributed to his service. However, Dr. T.H.'s opinion is conclusory in nature as it does not offer rationale as to how the opinion was reached. In addition, the extent of the examination is not known as no detail is provided as to the extent of it. Thus, this opinion is of low probative value. Claiborne, 19 Vet. App. at 181. In a February 2019 VA addendum opinion to the April 2011 VA examination, the examiner stated that there is no evidence of a currently diagnosed disability in available supporting medical documentation, and a review of the medical records failed to render a diagnosis of a chronic condition related to the claim of chronic fatigue syndrome, as there was no pathology present. The examiner stated that the Veteran's clinical presentation also does not meet the diagnostic criteria for chronic fatigue syndrome. The examiner stated that the diagnosis of chronic fatigue syndrome was not rendered at the time. The examiner opined that the Veteran has fatigue due to poor sleep quality. The record does not show any diagnosis of chronic fatigue syndrome. Moreover, the December 2016 examiner did not provide a rationale for his opinion, nor did he indicate that the Veteran had a diagnosis of chronic fatigue syndrome. There is no other medical opinion otherwise indicating that the Veteran had chronic fatigue syndrome related to his military service. The Board has considered the Veteran’s statements in support of the claim. However, he is not competent to provide an opinion regarding the diagnosis and etiology of his reported symptoms. The diagnosis of chronic fatigue syndrome requires medical expertise. Kahana , supra. The preponderance of the evidence is against the claim and the appeal is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.