Citation Nr: 21000104 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-14 509 DATE: January 4, 2021 ORDER Entitlement to service connection for fibromyalgia, claimed as secondary to an undiagnosed illness is denied. Entitlement to service connection for chronic fatigue syndrome, claimed as secondary to an undiagnosed illness is denied. Entitlement to service connection for a respiratory condition, to include a lung disability, sinusitis, and rhinitis, claimed as secondary to an undiagnosed illness is denied. FINDINGS OF FACT 1. The Veteran does not have fibromyalgia. 2. The Veteran does not have a fatigue disability, to include chronic fatigue syndrome or an undiagnosed illness manifested by fatigue. 3. The evidence is against a finding that the Veteran has a chronic respiratory disability attributable to his period of service. CONCLUSIONS OF LAW 1. Fibromyalgia was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for chronic fatigue syndrome, claimed as secondary to an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 3. The criteria for service connection for a respiratory condition, to include a lung disability, sinusitis, and rhinitis, claimed as secondary to an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1979 to August 1991, to include service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2011 and September 2011 rating decisions of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin (hereinafter, Agency of Original Jurisdiction (AOJ)). This appeal was previously before the Board in March 2020, at which time it was remanded for further evidentiary development. Specifically, the Board instructed the AOJ to contact the Veteran and his representative and with their help, identify and obtain any outstanding private treatment records relevant to the claims on appeal. In a VA Form 21-4142 Authorization for Release of Information, the Veteran identified VA treatment medical records which were already of record. The Veteran’s representative also submitted updated VA treatment medical records; neither the Veteran nor his representative submitted any outstanding private treatment records or provided authorization to obtain any outstanding private treatment records. Thus, the Board finds that the AOJ substantially complied with the remand instructions and appellate adjudication may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998); Wood v. Derwinski, 1 Board. App. 190 (1991). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be established for a Persian Gulf veteran who exhibited objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in 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. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A “Persian Gulf veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. A “qualifying chronic disability” includes: (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptoms illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). 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 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)(2), (5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Board acknowledges additional presumptive service connection for infectious diseases under 38 C.F.R. § 3.317(c) but finds that there is no lay or medical evidence that the Veteran has ever contracted the diseases listed under this provision. Thus, the applicability of these provisions is not reasonably raised. Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Fibromyalgia The Veteran is seeking service connection for fibromyalgia, which he contends is a result of an undiagnosed illness. The outcome of this issue turns on whether the Veteran has a current diagnosis of fibromyalgia which can be linked to his period of service, specifically his environmental exposures while serving in the Persian Gulf. For the following reasons, the Board finds that service connection for fibromyalgia is not warranted. The Veteran’s service treatment records are silent for any complaints, treatments, or manifestations of fibromyalgia. Post-service, at the January 1995 Persian Gulf Examination, the Veteran denied having joint pain or swelling, stiffness, muscle weakness, or backache. The Veteran filed a claim for service connection in June 2010. At the January 2011 VA examination, The Veteran reported having pain and stiffness in both hands, right leg, left shoulder, and right knee. Upon examination, to include diagnostic testing of the various joints, the examiner determined that the Veteran did not manifest fibromyalgia. In so finding, the examiner noted that the Veteran’s pain was in his joints rather than in his muscles; upon testing, the Veteran denied pain with almost all trigger point pressure. Instead, the examiner found that the Veteran’s pain and stiffness was associated with degenerative changes in his various joints. To that end, the examiner diagnosed bilateral shoulder degenerative arthritis, degenerative disease of the cervical spine, osteoarthritis of both knees, bilateral heel spurs, and focal osteoarthritis of the right hand. As his degenerative disease diagnoses were clearly supported by radiological findings, the Veteran did not have an undiagnosed condition, nor did he have a condition of multiple undiagnosed symptoms. Contemporaneous treatment records document the Veteran’s various reports of aches and pains. He often reported pain in his lumbar spine, right shoulder, and bilateral knees. However, his treating physicians did not diagnosis fibromyalgia or attribute his symptoms to fibromyalgia; rather, he was diagnosed with arthritis of his various joints. See VA Treatment Records dated December 2011 to March 2013. At a December 2013 rheumatology consultation, the Veteran reported continued aches and pains in his hands, shoulders, hips, buttocks, knees, ankles, and feet. Upon examination of the Veteran and review of his medical history, the rheumatologist found that the Veteran’s symptoms were attributed to degenerative joint disease and soft-tissue rheumatism. In so finding, the rheumatologist noted that the Veteran did not meet all tender points for a formal diagnosis of fibromyalgia. Rather, diagnostic testing revealed arthritis and degenerative changes in the Veteran’s various joints. The Veteran was first noted to have fibromyalgia in December 2014. At that time, the Veteran reported to his treating physician that he was “diagnosed with fibromyalgia” and needed a diagnostic lab test to confirm the diagnosis. While the Veteran was not afforded an examination or trigger point test at that time to confirm the diagnosis, his subsequent treatment records listed fibromyalgia as a medical condition. At the April 2019 VA examination, the Veteran reported having continued joint pain and muscle pain, which he estimated started around 2011 and 2012. He stated that he was referred to a specialist for his pain in his hands, wrists, knees, and shoulders; upon examination, the specialized diagnosed osteoarthritis. Upon examination, the April 2019 examiner found that the Veteran did not have a valid diagnosis of fibromyalgia. In so finding, the examiner acknowledged the Veteran’s documented diagnosis of fibromyalgia beginning December 2014. However, the examiner found this diagnosis to be erroneous as it was not based on any formal testing, but rather was primarily based on the Veteran’s own subjective reports. Rather, the examiner attributed the Veteran’s symptoms to his various diagnoses of arthritis, tendinosis, bursitis, and carpal tunnel. Upon consideration, the Board finds that service connection for fibromyalgia is not warranted as the most probative evidence of record fails to establish that the Veteran has a valid diagnosis of fibromyalgia. In so finding, the Board finds that the most probative evidence on this issue of diagnosis consists of the January 2011 and April 2019 VA examination reports and opinions. The examiners considered the Veteran’s medical history, to include his various diagnoses and diagnostic testing, to concluded that the Veteran did not have fibromyalgia. The examiners applied the specific facts of the Veteran’s case to sound medical principles to arrive at the clear conclusion that the Veteran did not have fibromyalgia. Instead, the examiners attributed the Veteran’s symptoms of pain and stiffness to his various diagnoses, to include degenerative joint disease, rather than fibromyalgia. The Board finds that these opinions are competent, credible, and highly probative as to the issues of diagnosis and etiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran was diagnosed with fibromyalgia in December 2014. However, it appears that this diagnosis was listed based primarily on the Veteran’s lay statements rather than any objective medical testing. At that time, the Veteran reported that he was previously diagnosed with fibromyalgia and requested additional testing; the Veteran was not afforded any testing to confirm the diagnosis. The Board assigns this diagnosis (and the subsequent diagnoses that stem from it) little probative value as there is no evidence that the diagnosis is based on or considered the specific legal requirements. The December 2014 diagnosis contradicts the other objective medical evidence of record, to include previous testing that established the Veteran did not have fibromyalgia. See December 2013 Rheumatology Consultation. In addition, the treating physician did not consider the Veteran’s medical history and failed to discuss the significance, if any, of the Veteran’s other diagnoses. Accordingly, the Board finds the notations of “fibromyalgia” in the Veteran’s medical history are less competent and less probative than the remaining objective evidence of record, which considers the Veteran’s entire medical history and appropriate medical testing. The only remaining evidence in favor of the Veteran’s claim consists of his lay statements of record, in which he contends he has fibromyalgia secondary to his environmental exposures. The Veteran is competent to describe symptoms he experiences. However, as a lay witness, he is not competent to diagnosis his symptoms as fibromyalgia or medically related his current symptoms to his period of service. The issue is medically complex, as it requires knowledges of pathology and the workings of the musculoskeletal system. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the objective medical evidence, to include the January 2011 and April 2019 VA examinations, which establish that the Veteran does not have a valid diagnosis of fibromyalgia. Overall, the probative evidence establishes that the Veteran does not have fibromyalgia. As such, the Board finds that the Veteran, although a Persian Gulf veteran, has signs or symptoms that are attributed to known clinical diagnoses. Further, the Veteran has never been found to have fibromyalgia within the meaning of the law governing compensation to Persian Gulf veterans. Therefore, the evidence is against the claim, the benefit of the doubt doctrine does not apply, and service connection for fibromyalgia is denied. Chronic Fatigue Syndrome (CFS) Similarly, the Board finds that service connection for chronic fatigue syndrome is not warranted on a presumptive basis as there is no valid diagnosis of CFS. The Board further finds that service connection for chronic fatigue as a separate disability is not warranted on a direct basis. Turning to the facts of the case, the Veteran’s service treatment records are silent for any complaints, treatments, or manifestations of chronic fatigue syndrome. At the January 1995 Gulf War Examination, the Veteran denied having fatigue. At the January 2011 VA examination, the Veteran reported generally feeling tired and having trouble staying awake while driving. He stated that he easily fell asleep but woke up with nightmares. He estimated sleep about five hours per night at best. Upon examination and review of the record, the examiner found that the Veteran did not meet the criteria for chronic fatigue syndrome. Instead, the examiner attributed the Veteran’s general fatigue to his psychiatric disabilities. Subsequently, the Veteran was diagnosed with insomnia secondary to several disabilities, to include PTSD, pain, and sciatica. At no point was the Veteran diagnosed with CFS. At the April 2019 VA examination, the Veteran reported feeling fatigue. He stated that he had a sleep study twice, and both were negative for sleep apnea. Upon examination of the Veteran and review of the record, the examiner found that the Veteran did not meet the diagnostic criteria of chronic fatigue syndrome. The examiner determined that the Veteran’s symptom of fatigue was related to his lack of sleep/insomnia due to his PTSD, along with obesity, and diabetes. Based on the above, the Board finds that service connection for CFS is not warranted on a presumptive basis as there is no valid diagnosis of CFS. In so finding, the Board notes that in order to establish a valid diagnosis of CFS for VA purposes, there must be six 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, (x) sleep disturbance. 38 C.F.R. § 4.88a. Furthermore, to establish chronic fatigue syndrome, there must be the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms. Id. On this record, the Veteran has been afforded two VA examinations and multiple evaluations by treating physicians. The VA examiners evaluated the Veteran pursuant to established medical testing and found that the Veteran did not meet the diagnostic criteria. The only evidence in favor of the Veteran’s claims consists of his own lay statements. However, as a lay witness, the Veteran is not competent to attribute his symptoms to a specific diagnosis nor is the Veteran able to provide a nexus opinion on this issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, the Board assigns more probative value to the objective medical evidence of record which establishes that the Veteran does not have a valid diagnosis of CFS. Accordingly, the evidence of record does not establish that the requirements to diagnosis chronic fatigue syndrome are met. Furthermore, the Veteran has diagnosed illnesses that explain his chronic fatigue. Therefore, the Veteran does not have a qualifying chronic disability and presumptive service connection is not warranted. Alternatively, the Board further finds that service connection for fatigue as a separate disability is not warranted on a direct basis. Here, the Veteran’s treating physicians have attributed his fatigue as a symptom of his insomnia, secondary to his service-connected PTSD and his sciatica and pain. See VA Treatment Records dated November 16, 2011, November 21, 2011, December 20, 2011, and January 3, 2012. As the Veteran’s fatigue is a natural consequence of his service-connected PTSD, which has resulted in sleep impairment, any additional compensation for these symptoms would be considered pyramiding. 38 C.F.R. § 4.14. Therefore, no other relevant diagnostic code is for application. Accordingly, the claim is denied. Respiratory Disability The Veteran contends he has a respiratory disability secondary to his period of service. During service, the Veteran reported sinus congestion, along with headaches and irritated eyes. Upon evaluation, the physician diagnosed an upper respiratory infection and prescribed medication. Subsequent treatment records are silent for any additional complaints, treatment or manifestations of continued infection nor is there any evidence of a chronic respiratory disability during service. At the January 1995 Gulf War Examination, the Veteran denied having shortness of breath or wheezing; however, he did note that he had a pulmonary embolus one year prior. He stated that the condition did not require medication or hospitalization. In August 2004, the Veteran was diagnosed with a lung nodule upon diagnostic testing. The nodule remained stable. At the July 2013 VA examination, the Veteran reported having nasal congestion and postnasal drip, along with periodic sinus infections and pain and pressure. Upon examination, the clinician diagnosed allergic rhinitis. The examiner ultimately opined that the Veteran’s allergic rhinitis was not caused or aggravated by his military service. In so finding, the examiner noted the Veteran’s upper respiratory infection in 1983 but found that such an infection is normal for a healthy adult. Moreover, the Veteran did not develop allergic rhinitis until more than 10 years after his discharge from service and his current allergic rhinitis differed from the upper respiratory infection he had during service. At the April 2019 VA examination, the examiner diagnosed benign left nodule, allergic rhinitis, and acute sinusitis. Ultimately, the examiner found that the Veteran’s disabilities were less likely than not related to his period of service, to include any environmental hazards while serving in Southwest Asia. Regarding the Veteran’s rhinitis and sinusitis, the examiner noted that the Veteran was not diagnosed with either disability for more than 20 years after his discharge from service. The examiner found that the passage of time, coupled with medical literature, supported the premise that the Veteran’s rhinitis and sinusitis were not related to his period of service. As it pertains to the Veteran’s left lung nodule, the examiner noted that the presence of such benign nodules is common in individuals who live in certain geographic areas of the United States. Moreover, the examiner noted that the Veteran’s claimed shortness of breath was likely attributable to his obesity rather than any undiagnosed illness or chronic respiratory disability. Upon consideration, the Board finds that service connection for a respiratory disability is not warranted. As it pertains to the undiagnosed illness, the record establishes that the Veteran’s symptoms are attributable to clinical diagnoses with specific etiology. As such, entitlement to service connection would not be warranted based on the presumption relating to Persian Gulf War veterans. In addition, the April 2019 VA opinion establishes that the Veteran’s current disabilities, which occurred decades after his discharge from service are not disability patterns that are associated with any disease or injury the Veteran occurred during service, to include an upper respiratory infection or specific exposures to Southwest Asia environmental hazards. This opinion is highly probative as it considers the Veteran’s entire medical history and applies sound medical principles to the specific facts of the Veteran’s case to arrive at a sound conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only evidence in favor of the Veteran’s claim consists of his lay statements; however, as previously noted, the Veteran is not competent to provide a nexus opinion in this case. Such an opinion requirements medical training and knowledge of pathology and the workings of the respiratory system. Jandreau, supra; Kahana, supra. In sum, the Board finds that the evidence does not indicate that the Veteran has a chronic respiratory disability attributable to his period of service, to include any environmental exposures. Accordingly, the criteria for entitlement to service connection for a respiratory disability have not been ment and the claim is denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Orie, Chinyere 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.