Citation Nr: 21002486 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-25 865 DATE: January 13, 2021 ORDER Service connection for fibromyalgia, to include muscle and joint aches, and pain, fatigue, and excessive nocturnal sweating, is granted. REMANDED Entitlement to service connection for a cluster of symptoms associated with Gulf War service, to include headaches, neurological symptoms, and dexterity difficulty associated with shaking, is remanded. FINDING OF FACT The Veteran has a diagnosis of fibromyalgia that has manifested with widespread musculoskeletal pain and tender points and symptoms of muscle and joint aches and pain, fatigue, and excessive nocturnal sweating which requires continuous medication control for six months or more and is at least as likely as not related to his service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia, to include muscle and joint aches and pain, fatigue, and excessive nocturnal sweating, are met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to November 1993. This matter is on appeal from a December 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2019 when it was remanded for further development. In August 2020, the agency of original jurisdiction (AOJ) granted service connection for “sleep apnea (claimed as sleeping disorder/disturbances)” and in December 2020, the AOJ awarded service connection for “Meniere’s syndrome (claimed as both ears, sensorial, balance, pitch, tones).” As these awards encompass symptoms of sleep disturbances, dizziness, and disorientation, service connection for the claimed symptoms is moot as the benefits sought have been granted. Further, the Board has recharacterized and bifurcated the matter on appeal for reasons explained in greater detail below. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Gulf War Illness The Veteran contends that he is entitled to service connection for a disability manifested by symptoms associated with his service in the Southwest Asia theater of operations during the Persian Gulf War. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially 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). Generally, in order 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 multisymptom illness that is defined by a cluster of signs or symptoms (MUCMI), such as: (1) Chronic fatigue syndrome; (2) Fibromyalgia; or (3) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 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. 38 C.F.R. § 3.317(a)(3). 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). A MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs. Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI include, but are not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological 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. 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(a)(7). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, the Veteran’s DD Form 214 reflects that he served in Southwest Asia during the Persian Gulf War. Further, his personnel records reflect that he served in Operation Desert Storm in Kuwait from February to March 1991 and was exposed to heavy atmospheric smoke generated from numerous (in excess of 500) oil well fires. As noted above, this matter was remanded for further development. The record reflects that the Veteran has been diagnosed with fibromyalgia as August 2019 VA treatment records note that the Veteran was diagnosed with fibromyalgia by Dr. K. in June 2019. Further, as explained above, fibromyalgia is identified by regulation as a qualifying chronic disability as a medically unexplained chronic multi-symptom illness (“MUCMI”). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). The record also reflects that the Veteran meets the criteria for a compensable evaluation for fibromyalgia. A compensable evaluation for fibromyalgia is warranted for widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms, that require continuous medical for control. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025. October 2015 VA treatment records note that the Veteran is prescribed fibromyalgia medication Duloxetine, and December 2018 VA treatment records note musculoskeletal pain. Further, August 2019 private treatment records note a history of chronic body aches of the back and joints. In November 2019, the Veteran was provided with a VA examination. The examiner opined that the Veteran has a “constellation of symptoms” that includes excessive nocturnal sweating and diffuse muscular aches and pain, and chronic tiredness. He stated that such conditions are at least as likely as not a chronic multi-system disease with an unknown etiology, due to exposure to heavy atmospheric smoke generated from numerous oil wildfires, as well as other unknown and unidentifiable exposures, while he was deployed in Southwest Asia. In a separate examination report, the examiner noted the Veteran’s reports of intermittent, diffuse muscle aches and pains was associated with various symptoms including excessive nocturnal sweating. He noted that the Veteran reported the condition persisting until after service to the present. As the rationale reflects the nature of the Veteran’s conditions and his circumstances of service, the Board assigns a high degree of probative value to this opinion. The record contains no affirmative evidence that the Veteran’s fibromyalgia, or such symptoms associated with service in Southwest Asia, are not related to service. Accordingly, the Board finds that the Veteran’s fibromyalgia manifested to a compensable degree no later than December 31, 2021. Further, the evidence reflects that it is at least as likely as not that the Veteran’s symptoms of muscle and joint aches and pain, fatigue, and excessive nocturnal sweating are related to his service in the Southwest Asia theater of operations during the Persian Gulf War. As such, service connection for fibromyalgia, to include manifestations of muscle and joint aches, and pain, fatigue, and excessive nocturnal sweating, is warranted on a presumptive basis as due to the Veteran’s service in the Southwest Asia theater of operations during the Persian Gulf War, and the claim is granted to that extent. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS FOR REMAND Entitlement to service connection for a cluster of symptoms associated with Gulf War service, to include headaches, neurological symptoms, and dexterity difficulty associated with shaking, is remanded. As noted above, this matter was remanded for further development to obtain an opinion to address the pathophysiology and etiology of all of the symptoms reported by the Veteran. In November 2019, a VA examiner provided an opinion in which he stated that the Veteran’s headaches are not attributable to a known clinical diagnosis. In July 2020, the same VA examiner provided an additional opinion which stated that the Veteran’s headaches are due to a neck condition and not due to an undiagnosed illness from Southwest Asia exposure. However, when attributing the Veteran’s headaches to a neck condition, the examiner did not address the Veteran’s diagnosis of fibromyalgia, to include muscle and joint aches and pains. Thus, an addendum opinion is necessary to clarify whether the Veteran’s headaches are attributable to his service-connected fibromyalgia. Additionally, the Veteran reported during the November 2019 examination that his headaches began during service. Certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service from active duty or are entitled to service connection if they were noted in service with continuity of the same symptomatology after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Migraine headaches are considered an organic disease of the nervous system, but non-migraine headaches are not. In light of the Veteran’s lay statements, the examiner must clarify whether the Veteran’s symptoms are headaches or migraine headaches. If further development establishes that the Veteran’s condition is diagnosed as migraine headaches, then an opinion should be obtained to determine whether this condition manifested within a year of separation or was noted in service with continuity of the same symptomatology. The record does not reflect that an adequate opinion has been provided regarding the etiology of the Veteran’s neurological symptoms and dexterity difficulty associated with shaking. As such, the opinion obtained on remand must address these symptoms. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. After completing the development requested in item 1, return the claims file to the November 2019 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion for the reported symptoms of (1) headaches, (2) neurological symptoms, and (3) dexterity difficulty, to include shaking. The reviewing clinician should be requested to provide opinions (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches were incurred in or are otherwise related to service, to include his exposures during service in Southwest Asia? If so, no further opinions for the headaches are necessary. (b.) Provide an opinion as to whether the Veteran’s headaches are migraine headaches. (c.) If the Veteran’s headaches are migraine headaches, is it at least as likely as not (a 50 percent or greater probability) that the migraine headaches manifested during his period of active duty, within a year of separation therefrom, or were noted in service with continuity of symptomatology thereafter? If so, no further opinions for the headaches are necessary. (d.) State whether the reported symptoms of (1) headaches, (2) neurological symptoms, and (3) dexterity difficulty, to include shaking, are at least as likely as not attributable to the Veteran’s service-connected fibromyalgia, or any other known clinical diagnosis. No further opinion is necessary for any symptom which is attributable to the Veteran’s fibromyalgia. (e.) If any of the symptoms in (e) are attributable to a diagnosis other than service-connected fibromyalgia, then opine as to whether that diagnosis is at least as likely as not incurred in or otherwise related to his service, to include exposures during his service in Southwest Asia. (f.) If any of the symptoms in (e) are not attributable to a known clinical diagnosis, then opine as to whether each symptom has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multisymptom illness (“MUCMI”), that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. A “medically unexplained chronic multisymptom illness” (“MUCMI”) is defined as 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. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.