Citation Nr: 20026072 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-29 468 DATE: April 15, 2020 ORDER Entitlement to service connection for muscle aches is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDING OF FACT The Veteran’s muscle aches have been attributed to other known clinical diagnoses and are not a distinct disability. CONCLUSION OF LAW The criteria for entitlement to service connection for muscle aches have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.317, 4.14 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1991 to August 2012. He received the Defense Meritorious Service Medal; Meritorious Service Medal; Air Force Commendation Medal with two oak leaf clusters; Air Force Achievement Medal with two oak leaf clusters; Joint Meritorious Unit Award with one oak leaf cluster; Meritorious Unit Award; Air Force Outstanding Unit Award with two oak leaf clusters; Air Force Organizational Excellence Award with two oak leaf clusters; Air Force Good Conduct Medal with five oak leaf clusters; National Defense Service Medal with one service star; Kosovo Campaign Medal with one service star; Afghanistan Campaign Medal with one service star; Global War on Terrorism Service Medal; Humanitarian Service Medal; Air Force Overseas Ribbon Short; Air Force Overseas Ribbon Long; Air Force Expeditionary Service Ribbon with Gold Border; Air Force Expeditionary Service Ribbon; Air Force Longevity Service with four oak leaf clusters; USAF NCE PME Graduate Ribbon with one oak leaf cluster; Small Arms Expert Marksmanship Ribbon (Rifle); Air Force Training Ribbon; and, NATO Medal with two service stars. Service Connection for Muscle Aches Persian Gulf War veterans who exhibit objective indications of certain qualifying chronic disabilities are entitled to presumptive service connection if the disability became manifest during active service or manifests to a compensable degree no later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders; and (3) certain infectious diseases found in section (c). A “qualifying chronic disability” that is an undiagnosed illness or a MUCMI cannot be attributable to any known clinical diagnosis or etiology. See 38 C.F.R. § 3.317(a)(1)(ii). Additionally, direct service connection is warranted when there is credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, VA is precluded from granting service connection and awarding a separate evaluation for symptoms of a service-connected disability when such symptoms are already contemplated by an existing evaluation. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Turning to the evidence in the present case, the evidence shows that the Veteran’s complaints of muscle pain do not constitute an undiagnosed illness for purposes of presumptive service connection. Treatment records show that the Veteran’s complaints of muscle pain have been attributed to treatment for elevated cholesterol and lipid medications. See May 2014 CAPRI, p. 34; June 2014 VA Examination, pp. 14, 18; July 2018 VA Treatment Records, pp. 23, 27; December 2018 VA Treatment Records, p. 282. The Veteran underwent a VA examination in July 2019 and his muscle ache complaints were attributed to degenerative arthritis in various joints and other acute illnesses. See July 2019 VA Examination, pp. 10-11. Because the Veteran’s muscle aches have been attributed to known clinical diagnoses and etiologies, his muscle aches do not constitute a “qualifying chronic disability” under 38 C.F.R. § 3.317 and are, therefore, not eligible for presumptive service connection based on Gulf War service. The evidence further fails to demonstrate that the Veteran has a present disability for purposes of direct service connection. The Veteran’s muscle aches have been attributed in part to degenerative arthritis in various joints. The Veteran has already been awarded compensable ratings for degenerative arthritis of the bilateral knees, bilateral ankles and low back. Insofar as the Veteran’s muscle aches are caused by degenerative arthritis, such functional impairment is already contemplated by the assigned ratings and a separate rating would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Regarding those muscle aches that are attributable to lipid medications and statin therapy, the Veteran was denied service connection for high cholesterol in November 2012. The Veteran did not appeal the denial and has not submitted a request to reopen that claim. To the extent that the Veteran’s muscle aches are symptoms of, or secondary to, his high cholesterol, such complaints are beyond the scope of the claim currently before the Board. Accordingly, the Board finds that the Veteran does not have a present disability that is eligible for service connection on a direct basis. In the absence of present disability or a qualifying chronic disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for muscle aches is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection for a Respiratory Condition VA obtained an opinion on the Veteran’s claimed respiratory condition in July 2019. See July 2019 VA Examination, p. 12. The examiner opined that the Veteran does not have a chronic respiratory condition and his complaints of upper respiratory symptoms are related to his service-connected allergic rhinitis. However, it is unclear to the Board if the examiner considered the Veteran’s reports of wheezing when working out. See June 2014 VA Examination, p. 11. Accordingly, the claim is remanded for an opinion that considers the Veteran’s reports of wheezing. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Service Connection for Fibromyalgia The Veteran has a current diagnosis of fibromyalgia, see March 2019 Private Treatment Records, p. 3; July 2018 VA Treatment Records, pp. 138-140; but his disability has not manifest to a compensable degree and is therefore not eligible for presumptive service connection. See 38 C.F.R. § 3.317. There is no opinion of record that addresses direct service connection and the claim is remanded accordingly. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Obtain a VA opinion that addresses the nature and etiology of the Veteran’s claimed respiratory condition. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion. The examiner should elicit from the Veteran a full and detailed history regarding his claimed respiratory condition and such history should be addressed. The examiner is asked to offer comments, an opinion and a supporting rationale that address the following: (a) Identify any diagnoses that pertain to the Veteran’s claimed respiratory condition. In identifying any applicable diagnoses, the examiner should conduct all necessary testing to rule out any suspected diagnoses. The examiner should characterize the Veteran’s condition as a (1) a disease with a clear and specific etiology, (2) an undiagnosed illness, (3) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or (4) a diagnosable chronic multi-symptom illness with a partially explained etiology/pathophysiology. The examiner must consider the Veteran’s reports of wheezing during exercise. (b) If the examiner determines that the Veteran’s respiratory condition has a clear and specific etiology, is it at least as likely as not (a 50 percent probability or greater) that such disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this opinion, the examiner is advised that VA has conceded hazardous environmental exposures associated with Gulf War service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Obtain a VA opinion that addresses the nature and etiology of the Veteran’s fibromyalgia. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion. The examiner should elicit from the Veteran a full and detailed history regarding his fibromyalgia and such history should be addressed. (Continued on the next page)   The examiner is asked to provide comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s fibromyalgia was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner is advised that VA has conceded hazardous environmental exposures associated with Gulf War service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, Associate Counsel 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.