Citation Nr: 21004829 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-11 977 DATE: January 28, 2021 ORDER Entitlement to service connection for a chronic respiratory disability as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness is denied. Entitlement to service connection for fibromyalgia, to include as a medically unexplained chronic multi-symptom illness is denied. Entitlement to service connection for esophageal polyps is denied. REMANDED Entitlement to service connection for bruxism, claimed as grinding teeth, dental mass, temporomandibular joint disorder (TMJ) is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with asthma but no other respiratory condition that is considered part of a medically unexplained chronic multi-symptom illness. 2. There is no objective evidence of a chronic condition of fibromyalgia. 3. The preponderance of the evidence is against finding that the Veteran’s esophageal polyps began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic respiratory disability as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2019). 2. The criteria for service connection for fibromyalgia, to include as medically unexplained chronic multi-symptom illness have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2019). 3. The criteria for service connection for esophageal polyps are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Air Force from March 1979 to January 1989, January 1991 to July 1991, and September 2006 to May 2007, with service in the Southwest Asia Theater of operations during the Persian Gulf War era. The Veteran also had periods of ACDUTRA and INACDUTRA from 1990 to December 2008. This case comes before the Board on appeal of a January 2010, February 2011, and June 2013 rating decision. This case was previously before the Board in May 2019, where the issues on appeal were remanded for further evidentiary development. The Board notes that the Veteran’s service connection claims for bilateral fibrocystic breasts and colon polyps was granted in a July 2020 rating decision. Additionally, the Veteran’s service connection claim for asthma (claimed as a chronic respiratory condition) was granted in an October 2020 rating decision. Therefore, as the service connection claims has been granted, it is resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 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). Additionally, service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability either during active 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. 38 U.S.C. §§ 1117, 1118 (2012); 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. Id. A “qualifying chronic disability” is defined as: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as fibromyalgia, chronic fatigue syndrome, or a functional gastrointestinal disorder) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. The term “medically unexplained chronic multi-symptom illness” means 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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) (2012). 1. Entitlement to service connection for a chronic respiratory disability as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness Here, the Veteran claims that she has a chronic respiratory disability that was part of an undiagnosed illness or medically unexplained chronic multi-symptom illness. Based on the evidence, the Board disagrees. Specifically, although the Veteran claims a respiratory condition as part of an undiagnosed illness or medically unexplained chronic multi-symptom illness, the Veteran has a current diagnosis of asthma. See VA treatment records. Moreover, in the January 2020 VA examination, the examiner indicated that there was no objective evidence of a respiratory condition that is either an undiagnosed illness or medically unexplained chronic multi-symptom illness. Furthermore, in the January 2020 medical opinion, the examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by active duty service. The examiner reasoned that the Veteran has a chronic respiratory disorder with its onset during service. She continued that the Veteran was diagnosed with asthma in 2007 and had to use an inhaler as needed throughout the years. The examiner added that the Veteran’s current pulmonary function test showed severe obstruction. Therefore, the examiner concluded that there was no unexplained chronic multi-symptom illness based on Gulf War exposures or exposure to asbestos. As such, a nexus had not been established for an unexplained chronic multi-symptom illness. The Board finds the examiner’s opinion to be competent, credible, and highly probative. The examiner reviewed the pertinent evidence, examined the Veteran, and provided an opinion based on medical evidence. The Board acknowledges the Veteran’s contentions, but the evidence shows that the Veteran’s respiratory condition is asthma. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Entitlement to service connection for fibromyalgia, to include as a medically unexplained chronic multi-symptom illness Here, the Veteran contends that she has fibromyalgia that was incurred in or caused by service to include as part of a medically unexplained chronic multi-symptom illness. Based on the evidence, the Board disagrees. Specifically, in the January 2020 VA examination, the examiner indicated that the Veteran does not have fibromyalgia. The examiner remarked that the Veteran’s treatment records show a diagnosis of fibromyalgia, but it was based on the Veteran’s statements and subjective symptoms without any objective evidence. During the examination, the Veteran reported pain in her shoulder and back, restlessness and fatigue. The Veteran stated that in 2006, she had unexplained pain in body and finger stiffness for one month after Hepatitis injection and series did continue without diagnosis of adverse reaction, joint, and palpations. Anxiety attach after second anthrax shot with restlessness and fatigue. The examiner indicated that treatment records showed that the Veteran’s fatigue was possibly due to thyroid function, Ebstein bar virus (EBV) with elevated immunoglobins. The examiner added that the Veteran has arthritis in her shoulder and back, which causes upper back pain. The Veteran indicated that she was not taking continuous medication although she was previously diagnosed with fibromyalgia symptoms. The Veteran stated that she was undergoing acupuncture as treatment. On examination, the examiner indicated that there were no findings, signs or symptoms attributable to fibromyalgia. There was no evidence of widespread musculoskeletal pain, stiffness, muscles weakness, or other associated symptoms. Additionally, there was no evidence of tender points for pain present. The examiner did indicate that the Veteran has arthritis in the shoulders and back. Based on the examination, in the January 2020 medical opinion, the examiner opined that the claimed condition of fibromyalgia was not incurred in or caused by active duty service, to include as part of a medically unexplained chronic multi-symptom illness based on Gulf War exposure. The examiner reasoned that although medical records showed a diagnosis of fibromyalgia, the symptoms were subjective only, as the objective examination was normal. The examiner stated that there was no objective evidence of a chronic condition of fibromyalgia, as such, a nexus had not been established. The Board finds that examiner’s opinion to be competent, credible, and highly probative. The examiner reviewed the pertinent evidence, examined the Veteran, accounted for her lay statements, and provided an opinion based on the medical evidence. The Board acknowledges the Veteran’s contentions that she was diagnosed with fibromyalgia, but the examination failed to show objective sign oy symptoms of fibromyalgia. As discussed above, 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. In this instance, there were no objective indications of a chronic disability. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 3. Entitlement to service connection for esophageal polyps Here, the Veteran contends that she has esophageal polyps that were incurred in or caused by active duty service. Based on the evidence, the Board disagrees. At the outset, the Veteran was diagnosed with an esophageal stricture (Schatzki’s ring) in 2016. See VA treatment records. Thus, the first element of service connection is met. Likewise, the second element is met. Specifically, the Veteran’s service treatment records (STRs) showed that in April 2007, during an EGD, she was diagnosed with an esophageal nodule determined to be squamous papilloma. Therefore, to warrant service connection, there must be a nexus or link between the Veteran’s current esophageal stricture and the squamous papilloma found during service, which is generally proven with medical evidence. In that regard, in the January 2020 VA examination, the examiner indicated that at various times the Veteran was diagnosed with gastroesophageal reflux disease (GERD), hiatal hernia, stricture of the esophagus and with an esophageal nodule. Under medical history, the examiner stated that in 2007, the Veteran was having GERD symptoms despite therapy and after an EGD was performed, an esophageal nodule was found. A biopsy of the esophageal nodule was reported as squamous papilloma. Then, in January 2016, the Veteran complained of GERD symptoms with coughing up phlegm. An EGD identified a Schatzki’s ring (stricture of the esophagus) in the gastroesophageal junction which was dilated. Then, another EGD was performed in January 2020, which showed a normal esophagus. The examiner added that there were no symptoms from the nodule that was biopsied in 2007. Likewise, the Veteran presented with no symptoms. The examiner remarked that there was no objective evidence for esophageal polyp, therefore no diagnosis was warranted. In the January 2020 medical opinion, the examiner opined that the Veteran’s claimed condition of an esophageal polyp was less likely than not incurred in or caused by active duty service. The examiner reasoned that the Veteran’s esophageal nodule condition was acute only in 2007, as there was no diagnosis found for esophageal polyps. The examiner added that the last EGD in January 2020 was within normal limits for esophageal nodules. As such, there is no evidence of chronicity of care and a nexus has not been established. The Board finds the examiner’s opinion to be competent, credible, and highly probative. The examiner reviewed the pertinent evidence, examined the Veteran, accounted for her lay statements, and provided an opinion based on the medical evidence. The Board acknowledges the Veteran’s contentions, but the Veteran does not have medical training or expertise to provide a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). Entitlement to service connection for bruxism, claimed as grinding teeth, dental mass, temporomandibular joint disorder (TMJ) is remanded. Here, the Veteran contends that she is entitled to service connection for bruxism, a dental mass, and/or TMJ. Based on the evidence, the Board finds a remand is necessary. Specifically, in the January 2020 VA examination, the examiner indicated that the Veteran was diagnosed with sleep-related bruxism in 2017. The Veteran reported that she started to grind her teeth when stressed in 1980 and was given a night guard. Likewise, she had a mass on her lower left jaw in 2007, was told to monitor it. The Veteran added that she was diagnosed with TMJ in the 1980s but failed to follow-up with a dentist of PCP. The examiner indicated that the Veteran presented with teeth grinding and used a mouth guard for treatment. However, in the January 2020 medical opinion, the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran was not diagnosed with TMJ while in the military or after, she started grinding her teeth in 2016 and was diagnosed with bruxism. The examiner stated that there was no evidence of chronicity of care for bruxism, thus, a nexus had not been established. The Board finds the opinion to be inadequate; thus, of little probative value. The examiner reasoned that the Veteran was not diagnosed with bruxism until 2016. However, dental STRs reflected that the Veteran had nocturnal bruxism in July 1984, including chronic right-sided biting. Moreover, she was diagnosed with asymptomatic TMJ during her reserve service in December 2001. As such, the examiner’s opinion is inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given the foregoing, remand for an addendum opinion to determine the nature and etiology of the Veteran’s dental condition is necessary. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s bruxism, dental mass, and/or TMJ. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bruxism, dental mass, and/or TMJ had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim on appeal. If the claim remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.