Citation Nr: 21063809 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-10 312 DATE: October 18, 2021 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied. REMANDED Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had fibromyalgia at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had CFS at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had bilateral peripheral neuropathy of the lower extremities at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for CFS are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral peripheral neuropathy of the lower extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1980 to August 1984, May 2000 to January 2001, and from October 2001 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2012 and August 2012 of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded this case for additional development in April 2018. The matter has now returned to the Board for appellate review. As an initial matter, the Board observes the Veteran has been granted service connection for tension headaches and sleep apnea, and a total disability rating based on individual unemployability (TDIU) by the RO in a May 2021 rating decision, which issues were before the Board in April 2018. As such the Veteran has received a full grant of benefits for these claims. Therefore, the issues of service connection for tension headaches and sleep apnea, and a TDIU are no longer before the Board. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309 (a), to include arthritis. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Additionally, service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as a veteran 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 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 Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. Id. § 3.317(e)(2). The period of the Persian Gulf War is from August 2, 1990, through the present. See 38 C.F.R. § 3.2(i). Additionally, for veterans diagnosed with an infectious disease as defined in 38 C.F.R. § 3.317(c)(2), the qualifying period of service also includes active military, naval, or air service in Afghanistan on or after September 19, 2001. 38 C.F.R. § 3.317(c)(3)(ii). Here, as indicated above the Veteran had active military service from Army from August 1980 to August 1984, May 2000 to January 2001, and from October 2001 to April 2002. Although the Veteran has periods of service considered both Peacetime and Gulf War Era, the Veteran's military personnel records do not indicate that he served in the Southwest Asia theater of operations. Therefore, this service is not considered a qualifying period of service for the purposes of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. 1. Entitlement to service connection for fibromyalgia The Veteran contends that he has fibromyalgia that is attributable to his active military status and he seeks service connection. Turning to the record, the Veteran's service treatment records (STRs) are silent as to any diagnosis or treatment for fibromyalgia during active service. In October 2011, the Veteran was inexplicably afforded a VA Gulf War examination in connection with his claim. At the time of the examination, a diagnosis of fibromyalgia was rendered with the onset noted as October 2011. The Veteran reported current symptoms of fibromyalgia, including, trigger points, sleep disturbance, paresthesias, headache, depression. The symptoms were reported as constant or nearly constant. The examiner opined that the diagnosed fibromyalgia was at least as likely as not related to the Veteran's active military service, which was most likely related to Persian Gulf hazards. Likewise, a private treatment record from October 2011from Dr. J.F.I. reveal a diagnosis of chronic-fatigue fibromyalgia. An additional private treatment record from March 2012 from Dr. N.A.O.V. describes the Veteran's history of physical symptoms but did not reference fibromyalgia specifically. Pursuant to the Board's April 2018 remand, another VA examination was conducted in November 2019. There was no diagnosis of fibromyalgia found at the time of the examination. The examiner explained that there was no evidence of fibromyalgia found at the time of the examination as per the American College of Rheumatology Diagnostic Criteria. In June 2021, a VA addendum medical opinion was obtained. The VA examiner found that the October 2011 private opinion from Dr. J.F.I. described the Veteran's symptoms, military history, labs, and medications, with a short comment of physical findings that described 14 of 18 tender points in occipital cervical shoulders, chest, elbows, lumbar, hip, and knees. Conversely, at the November 2019 VA examination, the VA examiner explained that there were only 4 tender points of a total of 18 found. Likewise, the VA examiner found that the March 2012 private opinion of Dr. N.A.O.V. was just a simple narrative without documentation of a physical examination performed by Dr. N.A.O.V. Therefore, the VA examiner determined that these private opinions were not valid to render a responsible opinion based on clinical findings. The examiner went on to explain that the American College of Rheumatology is clear on the criteria for a diagnosis of fibromyalgia, and such criteria were absent at the November 2019 VA examination. More specifically, the VA examiner explained that fibromyalgia is a diagnosis of exclusion and the patients must be thoroughly evaluated for the presence of other disorders that could be the cause of symptoms before a diagnosis of fibromyalgia. However, the VA examiner found that the Veteran had multiple diagnoses that could explain his symptoms, which are not related to fibromyalgia. VA treatment records from the period on appeal also do not show any diagnosis or treatment of fibromyalgia. With respect to the conflicting medical opinions of record, the Board has the responsibility to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the October 2011 VA examiner's findings and opinion are of little persuasive value. In this regard, the October 2011 VA examiner provided an opinion based on an incorrect factual premise that the Veteran was exposed to hazards in the Persian Gulf. However, as noted above, the Veteran did not have qualifying service in the Persian Gulf; therefore, he could not have been exposed to chemicals in the Persian Gulf. Moreover, in the same opinion the October 2011 VA examiner provided negative nexus opinions based on the Veteran's reported symptoms associated with his claim of fibromyalgia. Likewise, the October 2011 and March 2012 private opinions are equally inadequate for purposes of determining service connection because neither provides any discussion on the nexus between the Veteran's active military service and any diagnosed fibromyalgia. Further, as noted by the June 2021 VA medical opinion, neither private opinion is purported to be based on a thorough physical examination of the Veteran. An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In comparison, the June 2021 VA addendum opinion explained that fibromyalgia is a diagnosis of exclusion and that the Veteran had multiple other diagnoses to which his symptoms could be attributed before a diagnosis of fibromyalgia was rendered. In this regard, the June 2021 VA examiner further explained that the medical criteria required for a diagnosis of fibromyalgia was not shown in the November 2019 VA examination or in the private opinions submitted by the Veteran. Moreover, the June 2021 VA opinion considered additional scientific resources and provided a discussion on those sources consulted in rendering a negative opinion. Therefore, the Board affords significant probative weight to this opinion. Accordingly, the Board concludes that the Veteran does not have a current diagnosis of fibromyalgia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the October 2011 VA examination report contains a diagnosis of fibromyalgia, this diagnosis does not appear anywhere else in the record. Indeed, at the November 2019 VA examination, the examiner explained that the Veteran's symptoms did not meet the American College of Rheumatology Diagnostic Criteria for a diagnosis of fibromyalgia. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, the Board does not the complaints of pain and weakness claimed to be associated with fibromyalgia have had any functional impairment of earning capacity for the Veteran. The Board acknowledges that the Veteran believes he has a current diagnosis of fibromyalgia, however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). As there is no objective medical evidence of fibromyalgia, the Veteran's claim of service connection is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for chronic fatigue syndrome (CFS) The Veteran is currently service connected for sleep apnea at 50 percent disabling and depressive disorder, with chronic sleep impairment, at 50 percent. He contends that he is entitled to a separate rating for CFS. A separate chronic fatigue syndrome has not been clinically established. Service treatment records do not reveal any complaints, diagnosis, or treatment for CFS in-service. In October 2011, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported symptoms of weakness with musculoskeletal pain with an onset in or around 2000. The examiner found that there was no debilitating fatigue or any fatigue lasting 24 hours or longer after exercise. Notably, the examiner did not render any diagnosis for CFS; rather, the examiner noted that at least 6 of the 10 CFS diagnostic criteria had not been met at the time of the examination. Accordingly, the examiner opined that a diagnosis of CFS was less likely than not related to service nor to Persian Gulf conditions, since the Veteran did not meet the criteria for such a disease. Next, private treatment records from October 2011 from Dr. J.F.I. reveal a diagnosis of chronic-fatigue fibromyalgia. An additional private treatment record from March 2012 from Dr. N.A.O.V. describes the Veteran's history of physical symptoms, but it does not reference CFS specifically. Pursuant to the Board's April 2018 remand, another VA examination was conducted in November 2019. The examiner noted that the Veteran did not have a current diagnosis of CFS. However, the examiner noted that the Veteran experienced symptoms described as sleep disturbances attributable to insomnia and the inability to concentrate. The examiner determined that there was no evidence of a chronic fatigue syndrome as per CDC Guidelines diagnostic criteria found at the time of the examination. In June 2021, a VA addendum medical opinion was obtained. The VA examiner found that the October 2011 private opinion from Dr. J.F.I. described the Veteran's symptoms, military history, labs, and medications, with a short comment of physical findings. Equally, the VA examiner found that the March 2012 private opinion of Dr. N.A.O.V. was just a simple narrative without documentation of a physical examination performed by Dr. N.A.O.V. Therefore, the VA examiner determined that these private opinions were not valid to render a responsible opinion based on clinical findings. The examiner when on to explain that the CDC has clear diagnosis criteria for CFS, which criteria were absent at the November 2019 VA examination. In light of the evidence as discussed above, the Board finds that service connection for CFS is not warranted. Specifically, the Veteran does not have a current diagnosis of CFS for VA purposes. Although the private opinions of October 2011 and March 2012 were offered to establish a nexus of CFS to the Veteran's active service, neither of these opinions addresses CFS with any particularity for the purposes of determining service connection. Moreover, the VA examinations and opinions of record consistently indicate that the Veteran's symptoms have not met the diagnostic criteria for a diagnosis of CFS. As a present diagnosis for CFS has not been established and a clinical pathology relating the Veteran's reported CFS due to his time in-service has not been established, the Board finds there is no clinical evidence to support the Veteran's contentions. Accordingly, the Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The Board has also considered whether the Veteran's complaints of weakness and/or fatigue alone, without an accompanying diagnosis of a present disease, qualifies as a disability if it reached to the level of functional impairment of earning capacity. Saunders, 886 F.3d at 1367-69. However, there is no indication that any general complaint of weakness and/or fatigue has had any functional impairment of earning capacity for the Veteran. The Board acknowledges that the Veteran believes he has a current diagnosis of CFS, however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Lathan, 7 Vet. App. at 365. As there is no objective medical evidence of CFS, the Veteran's claim of service connection is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, 1 Vet. App. at 49; Ortiz, 274 F. 3d at 1361. 3. Entitlement to service connection for bilateral lower peripheral neuropathy of the lower extremities The Veteran seeks service connection for bilateral peripheral neuropathy of the lower extremities, which he contends is attributable to his active military service. Turning to the record, the Veteran's service treatment records (STRs) are silent as to any diagnosis or treatment for bilateral peripheral neuropathy of the lower extremities during active service. In October 2011, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the Veteran reported that he had intermittent swelling, pain, and numbness in both hands and feet. He also reported that his toes get numbed and crampy. The examiner diagnosed the Veteran with carpal tunnel syndrome. The examiner explained that the Veteran had carpal tunnel syndrome, but not a peripheral neuropathy affecting the lower extremities. Therefore, the examiner determined that the Veteran did not meet the criteria for a whole peripheral neuropathy condition. Likewise, private treatment records from October 2011from Dr. J.F.I. reveal reported symptoms described as peripheral neuropathy. An additional private treatment record from March 2012 from Dr. N.A.O.V. describes the Veteran's history of physical symptoms, but it does not reference bilateral peripheral neuropathy of the lower extremities specifically. In November 2019, another VA examination was conducted in accordance with the Board's April 2018 remand. A diagnosis of bilateral carpal tunnel syndrome was rendered. The Veteran reported that in 2011 he started having bilateral lower extremities numbness. The examiner reported that the Veteran did not have any symptoms attributable to any peripheral nerve conditions for the bilateral lower extremities. Diagnostic testing of record at the time of the examination was also noted to be normal for the bilateral lower extremities. The examiner remarked that there was no evidence of clinical bilateral lower extremity peripheral neuropathy at the time of the examination. Specifically, the examiner explained that the diagnostic testing of record of the bilateral lower extremities was normal. The examiner considered the October 2011 statement that the claimed peripheral neuropathy did not meet criteria, but only for focal median nerve neuropathy at the wrists. Likewise, the examiner considered another October 2011 opinion and a March 2012 opinion. However, the examiner explained that neither of these opinions were based on complete musculoskeletal examinations to support the opinions rendered. The Board observes that there is no competent medical evidence of record which supports any diagnosis of bilateral lower peripheral neuropathy at any point during the appeal period. The Veteran's service treatment records are silent as to any complaints, treatments, or diagnoses of bilateral lower extremity peripheral neuropathy. Equally, VA treatment records do not reveal any diagnosis of peripheral neuropathy of the bilateral lower extremities, which is a disability that may be detected by diagnostic testing. The Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy of the bilateral lower extremities and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges that the Veteran believes he has a current diagnosis of peripheral neuropathy of the bilateral lower extremities, however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Lathan, 7 Vet. App. at 365. As there is no objective medical evidence of a disorder, the Veteran's claim of service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities is remanded. The April 2018 Board remand instructed the Agency of Original Jurisdiction to afford the Veteran appropriate VA examination to determine the etiology of his claimed bilateral upper extremity peripheral. Unfortunately, the November 2019 VA examination report obtained on remand is inadequate for purposes of determining service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the November 2019 VA examiner opined that the Veteran did not have a diagnosis of bilateral upper extremity peripheral neuropathy and did not render an etiological opinion. However, as the examiner acknowledged, the evidence of record reflects a diagnosis of bilateral carpal tunnel syndrome during the appeal period. The Board notes that, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Further, carpal tunnel syndrome and peripheral neuropathy are both organic diseases of the nervous system under 38 C.F.R. § 3.309. Accordingly, the Board finds at this time that recharacterization of the issue on appeal more broadly, to encompass any disability wrist disability, to include carpal tunnel syndrome, is appropriate. Accordingly, a remand is warranted to obtain a new VA examination to determine the nature and etiology of the Veteran's diagnosed bilateral wrist disorder, to include carpal tunnel syndrome. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate specialist physician to determine the existence and etiology of any bilateral wrist disorder, to include carpal tunnel syndrome. The physician is requested to identify all disorders of the bilateral wrists and their etiology. All necessary tests, to include electromyography and/or nerve conduction studies, should be performed. The claims file must be made available to, and reviewed by, the physician in conjunction with the examination. The physician must consider all evidence of record, to include the Veteran's lay statements. The physician must provide the following opinions: Is it at least as likely as not (a 50 percent probability or greater) that any bilateral wrist disorder, to include the diagnosed carpal tunnel syndrome (even if not found on this examination), is related to the Veteran's active duty service? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements of continuity of symptoms since service and may not disregard those statements merely because there was no treatment. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The rationale for all opinions expressed must be provided and the examiner must clearly articulate the reasons for his or her conclusions. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.