Citation Nr: 21062908 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-19 870 DATE: October 12, 2021 ORDER Service connection for diabetes is denied. Service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes, is denied. Service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes, is denied. Service connection for peripheral vascular disease with intermittent claudication of the left lower extremity, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for peripheral vascular disease with intermittent claudication of the right lower extremity, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for fibromyalgia, also claimed as joint pain, muscle pain, morning stiffness, memory problems, and sleep disturbances, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for chronic fatigue syndrome, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for constipation, abdominal pain, and digestion problems other than those associated with service-connected gastroesophageal reflux disease (GERD), to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for a cervical spine disorder, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for a thoracolumbar spine disorder, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. Service connection for a bilateral shoulder disorder, to include as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, is denied. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has diabetes due to service; diabetes was not shown to a compensable degree within one year of service. 2. As service connection is not warranted for diabetes, the claims for service connection for peripheral neuropathy of the lower extremities are without legal merit; the most probative evidence of record weighs against a conclusion that the Veteran has peripheral neuropathy of either lower extremity due to service. 3. The most probative evidence of record weighs against a conclusion that the Veteran has peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, and digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; or a bilateral shoulder disorder due to service, to include as a result of an undiagnosed illness or other qualifying, chronic disability based on his presence in the Southwest Asia theater of operations. 4. Arthritis of the cervical spine, thoracolumbar spine, or either shoulder was not shown to a compensable degree within one year of service, or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for peripheral neuropathy of the left or right lower extremity, to include as secondary to diabetes, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). 3. The criteria for service connection for peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, and digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; or a bilateral shoulder disorder, to include as a result of an undiagnosed illness or other qualifying, chronic disability due to the Veteran's presence in the Southwest Asia theater of operations, are not met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1980, February 1981 to April 1988, and July 1991 to January 1992. I. Legal Criteria 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including diabetes and arthritis, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309 (a), such as diabetes and arthritis. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). Service connection may also be granted for a disability due to a qualifying chronic disability of a Persian Gulf Veteran, such as the Veteran in the instant case, provided that such disability became manifest during either active service in the Southwest Asia theater of operations or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4 not later than December 31, 2016, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.§ 1117; 38 C.F.R. § 3.317(a)(1). The Veteran's service department awards and decorations reflect that as he served in the Southwest Asia theater of operations; as such, he is presumed to be a Persian Gulf Veteran for the purposes of this decision. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section the term medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "Objective indications of 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 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). II. Analysis A. Diabetes/Lower Extremity Peripheral Neuropathy The service treatment reports (STRs), to include the reports from the March 1988 and December 1991 separation examinations and medical histories collected at that time, are negative for diabetes or indications thereof. While the March 1998 medical history noted leg cramping, the medical history collected in December 1991 noted that this condition had occurred in the past and that there were no sequela of such at that time. The STRs are otherwise silent for treatment or complaints of peripheral neuropathy. The Veteran did not reference diabetes or lower extremity peripheral neuropathy in his original application for service connection filed in April 1988 or subsequent claims filed in 1989, 1991, and 1992. It was not until August 2012 that the Veteran filed a claim for service connection for diabetes and peripheral neuropathy of the lower extremities as secondary to diabetes. The first VA general medical examination conducted after the Veteran's final period of active duty in March 1992 did not reflect diabetes or lower extremity peripheral neuropathy, nor were these conditions shown upon a VA general medical examination conducted in April 2002 or a VA Persian Gulf War examination conducted in July 2002. The first medical report of record reflecting a diagnosis of diabetes is dated in June 2011 and VA medical records from 2012 reflect treatment for diabetic neuropathy in the lower extremities. In short, while the record reflects a current diagnosis of diabetes, given the fact that this was condition was first diagnosed at a time so remote from service (almost two decades after the Veteran's last period of active duty), with consideration of the silent STRs for this condition and the over two decades from service for the Veteran to first assert that diabetes is the result of service, the undersigned must find that the evidence preponderates against the claim for service connection for diabetes. In making the above determination, the undersigned acknowledges the Veteran's assertion that his diabetes is the result of exposure to environmental hazards during his Persian Gulf service. However, such complex medical matters as whether the Veteran's diabetes is the result exposure to environmental hazards during his Persian Gulf service, or is otherwise the result of service, are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have the appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with diabetes since service, the undersigned finds the silent STRs for this condition and the silent record of any evidence or complaints related to diabetes for approximately twenty years after service to be more probative than any lay assertions made in connection with the claim for service connection for diabetes, and that these facts weigh against a finding of continuity of relevant symptoms associated with this condition since service. Finally, as diabetes was not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the undersigned finds that the preponderance of the evidence is against the claim for service connection for diabetes. As such, this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. With respect to the peripheral neuropathy of the lower extremities that has been attributed to diabetes, given the denial of service connection for diabetes above, entitlement to service connection for peripheral neuropathy of the lower extremities as secondary to diabetes must be denied as a matter of law. There otherwise being no evidence of treatment for peripheral neuropathy in the lower extremities in the STRs or post service clinical evidence linking such directly to an in-service event, symptomatology, or pathology, the undersigned finds that the preponderance of the evidence is against entitlement to service connection for service connection for peripheral neuropathy of the lower extremities on a direct basis. As, the claim for service connection for this condition must also be denied. Id. As a final matter, as there is no reliable evidence indicating that the Veteran has diabetes or peripheral neuropathy of the lower extremities due to service, a VA examination or medical opinion to address these claims is not necessary to fulfill the duty to assist the Veteran. B. Peripheral Vascular Disease of the Lower extremities; Fibromyalgia; Chronic Fatigue Syndrome; Constipation, Abdominal Pain, and Digestion Problems other than those Associated with GERD; Cervical Spine Disorder; Thoracolumbar spine disorder; Bilateral Shoulder Disorder As for the other disabilities for which service connection is claimed, to include on a presumptive basis as an undiagnosed illness or other qualifying, chronic disability pursuant to the provisions of 38 U.S.C. § 1117, the STRs do reflect problems with digestion, and service connection has been granted for GERD. As such, the appeal with respect to a disability manifested by constipation, abdominal pain, and digestive problems has been characterized to reflect disability not currently contemplated by the rating assigned for the service-connected GERD. The STRs, to include the reports from the March 1988 and December 1991 separation examinations and medical histories collected at that time, are otherwise silent for the additional disabilities at issue. In addition, the Veteran did not reference any of the additional disabilities at issue in his original application for service connection filed in April 1988 or subsequent claims filed in 1989, 1991 and 1992. The first VA general medical examination conducted after the Veteran's final period of active duty in March 1992 did not reflect the additional disabilities for which service connection is claimed. A July 1992 VA Persian Gulf War examination included the notation "[m]oderately severe fatigue. This is service connected, began approximately one month after leaving the Gulf." This examination also noted that fibromyalgia was "service connected," with the Veteran reporting that such began in 1982 or 1983, which predates his Persian Gulf service. Chronic low back pain with no objective findings was reported at this examination, and the examiner noted that the Veteran did not mention this as being a significant problem at that time and the musculoskeletal examination and examination of the "extremities" were said to be normal. Thereafter, the Veteran was afforded another Persian Gulf War examination in September 2013 to address the claims on appeal. Following a review of the clinical history and physical examination, the examiner concluded as follows: There are no undiagnosed, or diagnosable but medically unexplained/partially explained chronic multisymptom illness of unknown etiology attributable to environmental exposures during deployment in SW [southwest] Asia. As specific to the claims for service connection for peripheral vascular disease of the left and right lower extremities with intermittent claudication, the September 2013 VA examiner noted the Veteran describing a one-year history of pain extending from the ankles to the back of the calves and that a review of the record indicated that intermittent claudication had been diagnosed in December 2012. The following opinion was rendered. Intermittent claudication is not due to or a result of AD [active duty], including due to environmental exposures during deployment in SW Asia. PVD [peripheral vascular disease] is often seen in DM [diabetes mellitus for] which [service connection has not been granted]. With respect specifically to fibromyalgia, the September 2013 VA examiner stated that there were no current findings, sings, or symptoms for such, and that the Veteran was not currently undergoing treatment for this condition. The examiner concluded as follows after a review of the clinical record: There is no objective evidence of fibromyalgia, therefore an opinion is not indicated. [The] Veteran is c/o [complaining of] age related subjective joint symptoms but there is no objective evidence of fibromyalgia, no evidence of trigger points. Exam today and medical record review does not reveal objective evidence of fibromyalgia. As for chronic fatigue syndrome, there were no current findings, sings, or symptoms for such, and the examiner concluded as follows after a review of the clinical record: There is no objective evidence of chronic fatigue syndrome[,] therefore an opinion is not indicated. There is no history of debilitating fatigue or other indicators necessary for diagnosis of chronic fatigue syndrome attributable to environmental exposures during deployment in SW Asia. Specifically with respect to the claim for service connection for constipation/abdominal pain/digestive problems, the examiner noted concluded as follows, again after a review of the clinical record: There is no current history o[f] constipation, and no objective evidence of irritable bowel syndrome, therefore an opinion is not indicated. [The] STR[s] [are] silent for claimed condition. CPRS [VA outpatient treatment] notes document constipation in 2011, and in 2012 which has since resolved with medication. There is no objective evidence of IBS [irritable bowel syndrome] attributable to AD including environmental exposures during deployment in SW Asia. Finally, with respect to cervical and thoracolumbar spine and bilateral shoulder disorders, magnetic resonance (MRI) in November 2013 and February 2017 revealed degenerative disc disease in the cervical spine and an April 2017 MRI revealed degenerative disc disease in the lumbar spine. X-rays of the shoulders conducted in March 2017 revealed bilateral impingement syndrome. Review of the record reveals no medical evidence or opinion linking this spine or shoulder pathology to service. Applying the pertinent legal criteria of the fact set forth above, the undersigned notes initially that she finds the negative opinions with respect to fibromyalgia and chronic fatigue rendered in September 2013 to be more probative than the July 1992 VA Persian Gulf War examination indicating that these conditions were "service connected." She makes this determination because these July 1992 findings were not documented to have been based on a review of the clinical record and are supported by no rationale. In contrast, the September 2013 opinions addressing fibromyalgia and chronic fatigue are documented to have been based on a review of the claims file and are supported by adequate rationale. The September 2013 opinions addressing peripheral vascular disease of the left and right lower extremities and constipation/abdominal pain/digestive problems, being uncontradicted by any positive opinion or finding to the contrary, are definitive as to the claims for service connection for these disabilities as they are documented to have been based on thorough review of the clinical record and are supported by adequate rationale. With respect to the claims for service connection for cervical and thoracolumbar spine and bilateral shoulder disorders, given the confirmed "known" diagnoses of disc disease in the cervical and lumbosacral spines and bilateral impingement syndrome in the shoulders, service connection for cervical and thoracolumbar spine and bilateral shoulder disorders on a presumptive basis pursuant to the provisions of 38 U.S.C. § 1117 cannot be assigned. There being no reliable evidence indicating that service connection for these disorders on a direct basis would be warranted, a medical opinion addressing the claims for service connection for cervical and thoracolumbar spine or bilateral shoulder disorders is not necessary to fulfill the duty to assist. Finally, as arthritis in the cervical or thoracolumbar spine or left or right shoulder is not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To the extent the assertions of the Veteran and his representative are advanced in an attempt to establish that he has peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; or a bilateral shoulder disorder, to include on a presumptive basis pursuant to the provisions of 38 U.S.C. § 1117, such complex medical matters are within the province of trained medical professionals. See Jones, supra. As neither the Veteran nor his representative are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Again, while the Veteran is competent to describe any lay observable symptoms associated with peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, and digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; and a bilateral shoulder disorder from service to the present time, the undersigned finds the Veteran's silence for these conditions in his original application for service connection filed in April 1988 or subsequent claims filed in 1989, 1991, and 1992, and the most probative post service medical evidence set forth above to be more probative than any lay assertions of continuity, and that these facts weigh against a finding of continuity of relevant symptoms associated with peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, and digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; or a bilateral shoulder disorder since service. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for peripheral vascular disease of either lower extremity; fibromyalgia; chronic fatigue syndrome; constipation, abdominal pain, and digestion problems other than those associated with GERD; a cervical spine disorder; a thoracolumbar spine disorder; and bilateral shoulder disability. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.