Citation Nr: 20011998 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 11-29 758 DATE: February 12, 2020 ORDER Entitlement to service connection for a disability manifested by muscle and joint pain, to include as due to an undiagnosed illness, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s disability manifested by muscle and joint pain is a qualifying chronic disability that manifested during active service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a disability manifested by muscle and joint pain, to include as due to an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1973 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in September 2014, and a transcript of that hearing has been associated with the claims file. See October 2014 Hearing Transcript. In an April 2016 letter, the Board informed the Veteran that the VLJ who conducted the September 2014 hearing was not available to participate in the decision on appeal and offered the Veteran the opportunity to have another hearing. See 38 C.F.R. § 20.707. However, the Veteran declined the offer in a letter received by the Board in May 2016. See April 2016 Notification Letter; May 2016 Hearing Request. By way of background, this matter was previously before the Board in December 2014, December 2016, and November 2017, when it was remanded for further development. Service Connection Generally, to establish service connection a veteran must show: “(1) the existence of a present 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air 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 (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Objective indications of a 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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, 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, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). 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). The Veteran’s military personnel records confirm that he served aboard the USS Nimitz, CVN 68, from January 1991 through May 1993, while the vessel was deployed in the Persian Gulf. See August 2014 Military Personnel Record. Therefore, the Veteran is a qualifying Persian Gulf Veteran. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a disability manifested by muscle and joint pain, to include as due to an undiagnosed illness, is granted. During the September 2014 Board hearing, the Veteran testified that he has chronic muscle and joint pain and body aches, which manifested after he was exposed to environmental hazards in service. Specifically, the Veteran stated that he served aboard the USS Nimitz, CVN 68, during the Gulf War, while the vessel was deployed in the Persian Gulf and western Pacific Ocean. The Veteran also testified that he accompanied Command Cruiser Destroyer Group Three on a trip to Kuwait to photograph bunker complexes, the highway of death, and oil well fires, where he may have been exposed to heavy metals and chemicals, including hydrogen sulfide. See October 2014 Hearing Transcript, pages 7-9; August 2010 VA 21-4138 Statement in Support of Claim; May 2012 Correspondence. In addition to exposure to environmental hazards during the Gulf War, the Veteran stated that his chronic muscle and joint pain may be related to the photography-related chemicals he was exposed to in his military occupation as a photographer’s mate. See May 2011 VA 21-4138 Statement in Support of Claim. Further, the Veteran submitted statements dated in August and September 2010, stating that, although he developed joint pain and body aches after he was exposed to environmental hazards during the Gulf War, he did not seek medical treatment after he was discharged. See August 2010 VA 21-4138 Statement in Support of Claim; September 2010 VA 21-4138 Statement in Support of Claim. A review of the Veteran’s service treatment records (STRs) shows a February 1983 record which notes that the Veteran was frequently exposed to various unspecified photography chemicals when he worked in the photography lab on the USS Midway, CV 41. See September 2010 STR – Medical. A review of the Veteran’s STRs shows a December 1972 enlistment report of medical examination that is absent for findings pertaining to muscle or joint pain and body aches. A hospital and medical care record dated in April 1987 states that an automobile struck the Veteran while he was riding a bicycle; he was diagnosed with multiple abrasions, treated, and released to full duty after three days. On the July 1988 pre-commissioning report of medical examination, an examiner noted the Veteran’s spine and musculoskeletal system to be normal, and the Veteran did not report any symptoms related to muscle or joint pain on the corresponding report of medical history. A treatment record dated in July 1991 shows the Veteran complained of neck pain. The assessment was trapezius strain. A January 1992 treatment record shows that the Veteran complained of acute left shoulder, elbow and wrist pain, as well as muscle aches, and was treated with ibuprofen. The Veteran’s February 1993 exit examination was normal. On the corresponding report of medical history, however, the Veteran reported that he had swollen or painful joints, arthritis, rheumatism or bursitis, and pain or pressure in his chest. The examiner noted that the Veteran had chronic joint pain or arthritis in his hips and neck, as well as seasonal joint pain. The examiner also reported that the Veteran had had atypical chest pain in or around 1991 without recurrence. See September 2010 STR – Medical; August 2010 Medical Treatment Record – Government Facility. Several VA examinations and medical opinions have been obtained in this case. The Veteran underwent his initial VA examination in February 2011. During the examination, the Veteran reported that he has had pain throughout his body, and particularly on his right side, since his in-service auto accident. The Veteran also reported that his joint aches and pains were worse with weather changes, particularly cold and damp weather, but stated that he did not notice any significant swelling in his joints during the examination. The examiner did not find evidence of synovial proliferation, joint line tenderness, or deformities in any of the Veteran’s joints peripherally. Following the examination, the examiner opined that there was no evidence that the Veteran’s musculoskeletal pains were due to a systematic process or Gulf War Syndrome. See February 2011 VA examination. In April 2013, the Veteran underwent a VA examination for fibromyalgia. The examiner noted that the Veteran had been hit by an automobile in 1986 or 1987, which caused a scalp laceration, road rash, contusions, abrasions, and joint injuries. The examiner opined that it was less likely than not that the Veteran’s joint pain was due to any exposure to photography-related chemicals while he was a photographer’s mate or to being hit by an automobile in service. The examiner based his opinion on the lack of medical records showing that the Veteran sought treatment for joint or muscle pain between 1987 and 2012. See April 2013 VA examination. The Veteran was afforded another VA examination for fibromyalgia in January 2015. During the examination, the Veteran reported that he had muscle aches in his chest, arms, spine, and occasionally back, as well as constant neck stiffness and occasional neck pain. The examiner did not diagnose the Veteran with fibromyalgia but reported that he had signs and symptoms attributable to fibromyalgia, including mild stiffness, minimal fatigue, minimal depression, tension headaches, and pins and needles sensations. The examiner noted that the Veteran had been diagnosed with peripheral vascular disease and degenerative disc disease, and that he previously had a stroke. The January 2015 examiner opined that the Veteran’s occasional muscle aches in his chest, neck, and back were equally likely as not to be related to service. See June 2019 CAPRI. VA obtained a medical opinion in December 2016. There, the examiner stated that the Veteran’s claimed muscle pain, joint pain, and skin sensations were part of a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis. The examiner stated that the Veteran’s symptoms were due to his lack of proper medical hygiene, injuries, body mechanics, age, wear and tear, overuse and repeated ambulation injuries as well as bone and joint problems. As such, the examiner opined that it was less likely than not that the Veteran’s muscle and joint pain and skin sensations were due to any possible toxin or exposure event in the Gulf. See December 2016 C&P examination. In November 2017, the Veteran was afforded a VA examination for joints. The examination did not reveal any classic distribution of trigger points consistent with what would usually be seen phenotypically in fibromyalgia, and the impression was diffuse reports of fatigue and musculoskeletal pain, without any evidence of underlying inflammation. The examiner reported that it was unlikely that the Veteran had an independent diagnosis of chronic fatigue syndrome and that he did not fulfill the criteria for a diagnosis of fibromyalgia. The examiner opined that the Veteran’s particular pattern of fatigue and musculoskeletal discomfort was consistent with an undiagnosed illness. The examiner also stated that, given the association of the Veteran’s symptoms with posttraumatic stress disorder, it was impossible to independently assign any of the Veteran’s symptoms as being directly related to exposures during the Gulf War. The Veteran was also afforded a VA examination for fibromyalgia in November 2017. There, the examiner noted that the Veteran has had unusual and vague joint and muscle aches since service that have yet to be diagnosed clearly. The examiner did not diagnose the Veteran with fibromyalgia, but noted that he had findings, signs or symptoms attributable to fibromyalgia, to include widespread musculoskeletal pain, stiffness, fatigue, and headaches, which were present more than one third of the time. The examiner noted that the Veteran reported exposure to burn pits, fine grain sand, dust storms, oil well fires and particulate matter, photography chemicals, and possibly hydrogen sulfide and other toxins. The examiner stated that it was impossible to separate the possible methods of exposure and noted the need to factor in the Veteran’s comorbid diagnoses. See June 2019 CAPRI. VA obtained a follow-up medical opinion in January 2018. The January 2018 examiner noted the Veteran’s diffuse reports of fatigue and musculoskeletal pain, and stated they were likely related to his medical and mental health diagnoses. The examiner opined that it was unlikely that the Veteran had an independent diagnosis of chronic fatigue syndrome and that he did not fulfill the criteria for a diagnosis of true fibromyalgia. The examiner further opined that the Veteran’s particular pattern of fatigue and musculoskeletal discomfort was consistent with an undiagnosed illness. However, the examiner reported that it was not possible to assign any of the Veteran’s reported symptoms as directly related to exposure that occurred while he was in the Persian Gulf. See June 2019 CAPRI. In June 2019, VA obtained an addendum medical opinion. The examiner stated that it was less likely than not that any diagnosed disability had its onset in service or was related to environmental exposures in Southwest Asia or the Gulf War. The examiner stated that the Veteran did have a number of service-connected disabilities, which the examiner assumed were related to service. The examiner stated that rationales had been explained in the past and did not include rationale as part of his medical opinion. See June 2019 C&P examination. After a review of the evidence of record, the Board finds that service connection for a disability manifested by muscle and joint pain, to include as due to an undiagnosed illness, is warranted. The Board notes that there are conflicting medical opinions as to whether the Veteran’s current joint pains and muscle aches are related to service. After a review of those opinions, the Board finds the November 2017 VA opinions, when considered in conjunction with the January 2018 VA opinion, to be the most probative evidence of record. In this regard, the February 2011 and April 2013 VA opinions did not specifically address the Veteran’s contentions regarding exposure to burn pits and other chemicals in Kuwait, but rather only addressed exposure to photography related chemicals. Moreover, the February 2011 VA opinion concluded that there was no evidence that the Veteran’s musculoskeletal problems were due to a systematic process or Gulf War Syndrome without providing a rationale, while the April 2013 medical opinion relied upon a lack of evidence of treatment in service and did not consider the Veteran’s statements regarding the onset and course of his symptoms. Similarly, the January 2015 VA examiner opined that it was equally likely that the Veteran’s symptoms of muscle aches and skin sensations were due to and undiagnosed illness resulting from service in Southwest Asia during the Gulf War, but did not include a clear and reasoned discussion as to whether the Veteran’s symptoms may be attributable to a diagnosed disorder. Rather, the examiner merely cited to the Veteran’s description of “occasional muscle aches” of the chest, arms, and occasionally back. The December 2016 and June 2019 opinions are also inadequate. The December 2016 examiner barely completed the disability benefits questionnaire (DBQ) and did not provide any response for the skin and musculoskeletal history sections. Moreover, the physical examination section instructs to “see appropriate DBQs,” but there is no accompanying DBQ addressing the Veteran’s muscle or joint pain. Similarly, the June 2019 opinion concludes it is less likely than not that the Veteran’s diagnosed disability had its onset in service or is related to environmental exposure during service, but the examiner did not address any of the Veteran’s contentions or provide rationale. As such, the February 2011, April 2013, January 2015, December 2016, and June 2019 VA opinions are afforded reduced probative value as they are based on incomplete factual premises. In this regard, the Board finds that the November 2017 and January 2018 VA medical opinions are the most probative evidence of record. The examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a qualifying disability, pursuant to 38 C.F.R. § 3.317. See Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). Specifically, the November 2017 and January 2018 VA examiners opined that the Veteran’s particular pattern of fatigue and musculoskeletal discomfort is consistent with an undiagnosed illness. Accordingly, the Board finds that the evidence of record supports the conclusion that the Veteran’s symptoms may be attributable to an undiagnosed Persian Gulf War illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Further, the Veteran’s post-service treatment records show that he has consistently sought treatment for muscle and joint pain, including widespread musculoskeletal pain, stiffness, and body aches. Moreover, the Veteran has also stated that he has had chronic, widespread muscle and joint pain since his discharge from service. See August 2010 VA 21-4138 Statement in Support of Claim; September 2010 VA 21-4138 Statement in Support of Claim. In this regard, a Veteran is considered competent to report the observable manifestations of his claimed disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Thus, because the Veteran’s statements and medical treatment records reflect that he has experienced these symptoms, assessed as an undiagnosed illness, for more than six months, his disorder is considered “chronic” under VA regulations. See 38 C.F.R. § 3.317(a)(4). The Board notes that, in addition to muscle and joint pain, the Veteran has reported that he has skin sensations, described as feeling like pin pricks and as similar to sun burn, which he has attributed to his undiagnosed illness. However, the Veteran underwent a VA examination for skin diseases in November 2017, and the examiner reported that the skin sensations in the Veteran’s upper and lower extremities were consistent with chronic right C7 and right L3 through S1 poly-radiculopathies. The VA examiner opined that, because there is a known diagnosis with etiologies, the Veteran did not have an undiagnosed illness, with regard to his skin sensations. The Board notes that the Veteran has been granted service connection for intervertebral disc syndrome with spinal stenosis and degenerative arthritis of the spine and cervical radiculopathy of the bilateral upper extremities. In this instance, a Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). However, pain can have many causes, and the Veteran is not competent to opine as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Board concludes that any lay assertions by the Veteran that his skin sensations are attributable to his undiagnosed illness are outweighed by the medical evidence of record, including the November 2017 VA opinion for skin diseases. Based on the foregoing, the Board finds that the evidence of record supports the conclusion that the Veteran’s joint and muscle pain symptoms may be attributable to an undiagnosed Persian Gulf War illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Resolving all doubt in favor of the Veteran, the Board finds that service connection for a disability manifested by muscle and joint pain, to include as due to an undiagnosed illness, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.