Citation Nr: 21001859 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-22 264 DATE: January 12, 2021 ORDER Entitlement to service connection for muscle spasms, including as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness associated with service in the Persian Gulf, is denied. REMANDED Entitlement to service connection for allergies (skin condition) due to an undiagnosed illness is remanded. Entitlement to service connection for muscle and joint pain of the knees, hands, and shoulders due to an undiagnosed illness is remanded. FINDING OF FACT 1. Muscle spasms are not attributable to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for muscle spasms are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from October 1984 to February 1992, including service in the Southwest Asia Theater from December 1990 to May 1991. The Board of Veterans’ Appeals (Board) remanded this case to the Agency of Original Jurisdiction (AOJ) most recently in April 2020 for additional development, and it now returns to the Board for appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disease manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Persian Gulf veterans may be entitled to service connection for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness in certain circumstances. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as one who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Persian Gulf War began on August 2, 1990. 38 C.F.R. § 3.2 (i). The Southwest Asia Theater of operations refers to 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, and the Red Sea. 38 C.F.R. § 3.317 (e)(2). Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) 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 or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i). Such chronic disability must have manifested 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 at least 10 percent or more no later than December 31, 2021 and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1). 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. 38 C.F.R. § 3.317 (a)(4). Compensation shall not be paid, however, 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 events that occurred between the appellant’s most recent departure from active duty in the Southwest 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 appellant’s own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (c). Service personnel records confirm that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317 (e) (defining the Southwest Asia theater of operations); see also 38 U.S.C. § 101 (33) (defining the Persian Gulf War as beginning on August 2, 1990 and ending on a date thereafter to be prescribed by Presidential proclamation or law). Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for muscle spasms The Veteran contends that his muscle spasms were incurred during his service in the Southwest Asia theater of operations during the Persian Gulf War. The question for the Board is whether the Veteran has a current disability that began during service, is otherwise at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence weighs against finding that his muscle spasms began during service or are otherwise related to an in-service injury, event, or disease or to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) are silent of complaints of or treatment of muscle spasms. In November 2007, the Veteran stated that he had experienced muscle spasms since returning from active service in the Southwest Asia theater of operations during the Persian Gulf War. An August 2008 image study shows that the Veteran has a diagnosis of degenerative joint disease of the lumbar spine with spinal stenosis. In a September 2008 statement, the Veteran noted lower back pain, leg soreness, and joint swelling with onset during active service. During a November 2008 VA Gulf War general medical examination, the Veteran reported back spasms with pain shooting down into his buttocks when he walked. On examination, there was no soft tissue swelling, tenderness, guarding, redness, heat, pain on motion, pain on repeated movement, or spasm. The examiner opined that the Veteran’s back spasms and radiating back pain were likely due to his existing non-service-connected diagnosis of lower back degenerative arthritis with spinal stenosis; therefore, his conditions were unlikely related to his service in the Southwest Asia theater of operations during the Persian Gulf War. During his June 2017 Gulf War general medical examination, a VA examiner found that the Veteran had muscle spasms, tight muscles, especially in his calves, but denied generalized muscle pain. He had intermittent cramps in his bilateral calf muscles. He noted occasional muscle spasms in his bilateral thighs. The examiner opined that the Veteran’s claimed conditions were not related to an undiagnosed illness, a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner explained that the Veteran’s muscle spasms and muscle pain were related to the Veteran’s non-service-connected degenerative joint disease of the lumbar spine and degenerative joint disease of the bilateral knees. In July 2017, a VA physician diagnosed the Veteran with fibromyalgia and opined that it was more likely than not related to his Gulf War Syndrome than to his insomnia. No rationale was provided. In December 2019, a VA examiner opined that the Veteran’s muscle spasms were less likely than not incurred in or caused by his active service. The examiner explained that there were no complaints during active service and he was not diagnosed with fibromyalgia until 2016. The Board found that the December 2019 VA medical opinion was inadequate as the examiner did not address the Veteran’s lay contentions of back and calf muscle spasms since his service in the Gulf War and the Veteran’s contention that the symptoms worsened. Also, the examiner did not address the Veteran’s July 2017 diagnosis of fibromyalgia where a VA physician opined that it was more likely than not related to his Gulf War Syndrome than insomnia. Instead, the examiner relied on the rationale of a previous examination. Therefore, an additional medical opinion was obtained. In June 2020, the Veteran underwent a VA examination for muscle injuries. The VA examiner found that the Veteran did not have a muscle injury, notably right calf muscle spasms, left calf muscle spasms, and back muscle spasms as there were no findings, signs, or symptoms to support a diagnosis. The Veteran reported back pain and right calf pain without a known injury since active service. He did not report any left calf pain. Years after active service, the Veteran was diagnosed with arthritis of the lumbar spine with spinal stenosis. Upon examination, muscle strength was normal. The VA examiner opined that the Veteran’s muscle spasms were less likely than not related to his active service. He explained that the Veteran was diagnosed with degenerative joint disease of the lumbar spine with spinal stenosis in August 2008, many years after active service, and that his reported back and calf spasms are related to this condition, which is not an undiagnosed illness. Although the Veteran reported intermittent muscle spasms during and since active service, they were intermittent with no known injury and there was no evidence that he had a back or calf condition during active service or until his 2008 lumbar spine arthritis diagnosis. Also, the examiner found that the Veteran’s back and calf muscle spasms did not rise to the level of functional impairment of earning capacity as he was able to walk with a normal gait, although he used a rollator due to degenerative joint disease of the lumbar spine. The examiner found that the Veteran would be able to engage in sedentary work that did not require stooping and squatting. Also, as there was no evidence of bilateral calf pathology, there would be no impediment to working. The Veteran is competent to report his symptoms associated with his muscle spasms, such as muscle twitching, that are readily apparent to a lay person. However, the Veteran is not shown to be competent to determine the etiology or onset of the claimed disability. The Board finds that there is no competent medical evidence of record to indicate that the Veteran’s muscle spasms are related to his military service. To the extent that the Veteran claims that his muscle spasms are attributable to an undiagnosed illness or medically unexplained chronic multi-symptom illness related to his Persian Gulf War service, the Board finds that such is not supported by the evidence of record. The medical evidence shows that his current symptoms of muscle spasms of the lumbar spine, bilateral thighs, and bilateral calves, which is secondary to non-service-connected degenerative joint disease of the lumbar spine with spinal stenosis. Further, degenerative joint disease of the lumbar spine with spinal stenosis are known clinical diagnoses. After weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s muscle spasms were incurred during his service. See 38 U.S.C. § 1110. Accordingly, the Board finds that the criteria for service connection for muscle spasms are not met and the Veteran’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). REASONS FOR REMAND 2. Entitlement to service connection for allergies (skin condition) due to an undiagnosed illness is remanded. Unfortunately, due to reasons that follow, an additional remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration. The Board finds that the July 2020 VA medical opinion is inadequate as the examiner did not address the Veteran’s lay contentions of his forehead skin rashes since his service in the Gulf War and the Veteran’s contention that the symptoms worsened. Specifically, the Veteran has consistently reported rashes across his forehead that would itch and burn during and since his active service. However, in July 2020, the VA examiner opined that the Veteran’s skin rashes were less likely than not related to his active service as there were no medical records available showing that the Veteran’s skin rash developed during service. The examiner noted that the Veteran did not develop rashes on his forehead until after he returned from the Southwest Asia Theater: however, the Veteran remained on active duty service for nearly a year after returning from Southwest Asia Theater of operations. Lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the AOJ should obtain additional medical opinion to address the significance of the Veteran’s statements indicating rashes during and since service. 3. Entitlement to service connection for muscle and joint pain of the knees, hands, and shoulders due to an undiagnosed illness is remanded. Unfortunately, due to reasons that follow, an additional remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration. The Board finds that the July 2020 VA medical opinion is inadequate as the examiner did not address the Veteran’s lay contentions of his bilateral hand pain, bilateral knee pain, and bilateral shoulder pain since his service in the Gulf War and the Veteran’s contention that the symptoms worsened. In July 2020, the Veteran was afforded a VA examination for knee and lower leg conditions, hand conditions, and shoulder conditions; however, the VA examiner did not address the Veteran’s competent report of complaints of bilateral hand pain, bilateral knee pain, and bilateral shoulder pain since active service as required by the Board’s April 2020 remand. Lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the AOJ should obtain additional medical opinion to address the significance of the Veteran’s statements indicating rashes during and since service. The matters are REMANDED for the following action: 1. Obtain a VA supplemental medical opinion from a qualified examiner to determine the nature and etiology of any current bilateral hand, bilateral knee, and bilateral shoulder impairment. Additional examination is not needed unless requested by the examiner. The examiner should review the record prior to examination, notably the Board remand. The examiner should provide an opinion as to the following: State whether it is at least as likely as not (50 percent probability or greater) that the bilateral hand, bilateral knee, and bilateral shoulder pain had its clinical onset during service or is related to any in-service disease, event, or injury. In doing so, the examiner must consider the Veteran’s statements that he has had bilateral hand, bilateral knee, and bilateral shoulder pain since his service in the Gulf War and that the symptoms have worsened.   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.