Citation Nr: 21068383 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-41 199A DATE: November 10, 2021 ORDER Entitlement to service connection for a chronic disability manifested by myalgia and myositis is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran has a chronic condition to account for myalgia and myositis that is etiologically related to a disease, injury, or event in service, or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a chronic disability manifested by myalgia and myositis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2001 to July 2002 and from December 2011 to November 2012. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied the Veteran's application to reopen the claim for service connection for a chronic disability manifested by myalgia and myositis. The Board previously denied this and several other claims in March 2019, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Remand (JMR) in January 2020, which was ordered by the Court in February 2020. Therein, the parties agreed that remand of the Veteran's claims were warranted. In December 2020, the Board denied two increased rating claims, and reopened and remanded the issues of entitlement to service connection for a chronic disability manifested by myalgia and myositis, bilateral shin splints, and bilateral pes planus. In a May 2021 rating decision, the RO granted service connection for bilateral pes planus and bilateral shin splints. This decision was a complete grant of benefits with respect to these issues of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, these issues are no longer on appeal, and the issue of entitlement to service connection for a chronic disability manifested by myalgia and myositis is the only remaining issue on appeal before the Board. With regard to the duty to notify, the Veteran has not raised any issues. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. With regard to the duty to assist, the Board acknowledges that the representative argued in a June 2021 statement that the April 2021 VA examination did not comply with the Board's remand instructions, as the representative saw no discussion of whether this condition is related in any way to a service-connected hamstring disability. As will be discussed below, the April 2021 VA examiner essentially did not diagnose the Veteran with a chronic disability manifested by myalgia and myositis. As such, the examiner cannot determine the etiology of a disability that she did not diagnose. In short, the examiner reviewed the claims file, examined the Veteran, and provided a detailed rationale for the provided opinion in compliance with the remand instructions. As such, the Board finds no evidence that this examination is inadequate in any way or that the duty to assist has not been met. Thus, the Board need not discuss any potential issues in this regard. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the Veteran's claim for entitlement to service connection for a chronic disability manifested by myalgia and myositis, the Veteran is claiming that he developed myalgia and myositis in service and/or that the service-connected right hamstring muscle sprain has caused or aggravated this disability. In an August 2012 private medical record from Family Practice/After Hours Clinic, the Veteran was noted as having myalgia and myositis. In a November 2012 Report of Medical Examination, the Veteran was diagnosed with myalgia and myositis, unspecified. In a November 2012 Post-Deployment Health Assessment form, the Veteran denied generally feeling weak, muscle aches, and swollen, stiff, or painful joints. In a January 2013 Disability Benefits Questionnaire (DBQ), the Veteran denied any current symptoms of myalgia or myositis. It was noted that the Veteran was not undergoing any treatment for this condition, and he did not have any current findings, signs or symptoms attributable to Fibromyalgia. Multiple reports of VA outpatient treatment dated from 2013 through 2020 do not reflect any complaints of or treatment for a disability manifested by complaints of myalgia and myositis. Specifically, post-service VA treatment records from August 2017 document a review of systems wherein the Veteran denied musculoskeletal weakness and myalgia. In September 2017, he complained of pain in his right knee off and on for several years, with no recent injury. He also reported lower back pain radiating into his left leg, in addition to shin splints for years that kept him from running. See VBMS entry with document type, "CAPRI," receipt date 10/02/2017, at pages 28-29 & 21-22, respectively. In August 2020, Dr. Stefania Di Pascuale, M.D., provided medical opinions. Regarding the Veteran's bilateral knee pain/arthralgia, Dr. Di Pascuale opined that the Veteran's condition is more likely than not a result of overuse and overloading of knee joints imposed by military activities. Additionally, she opined that the Veteran's documented in-service hamstring injury more likely than not aggravated his right knee pain due to the functional right knee instability that this condition created, and that the resulting right knee instability more likely than not is overloading the contralateral (left) knee through the natural swing of mechanical forces to the left at weightbearing functions, including but not limited to walking and running. Additionally, she opined that it is at least as likely as not that the Veteran's pes planus contributed to abnormal lower limb biomechanical work, thus affecting both knee joints. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 09/01/2020, at page 10. In an April 2021 DBQ, the Veteran was diagnosed with arthralgia of the bilateral knees and not myalgia or myositis. In an April 2021 Medical Opinion DBQ, the examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also concluded that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner concluded that no chronic diagnosis is made for a chronic disability manifested by myalgia and myositis. Symptoms are subjective only. A nexus has not been established. According to WedMD, myalgia is pain in the muscles or within muscle tissues. Myositis is a condition causing inflammation in muscles; weakness, swelling, pain. Myositis causes include infection, injury, autoimmune conditions, and drugs side effects. The Veteran does not have any of the listed causes. The examiner determined that she was unable to confirm a current chronic diagnosis with current available records and/or today's examination. The Veteran does have arthralgia of the knees. Therefore, no nexus or plausible secondary relationship is established. Upon review of the claims file, the Board finds that the most probative evidence of record does not diagnose the Veteran with a chronic disability manifested by myalgia and myositis related to his service or to a service-connected disability. Specifically, the April 2021 VA examiner found that no chronic diagnosis is made for chronic disability manifested by myalgia and myositis. The Board finds this opinion is the most probative medical evidence of record on the matter, as the examiner reviewed the claims, examined the Veteran, and provided a detailed rationale for the opinion. The Board has considered the August 2020 private medical opinion, which addresses bilateral knee pain/arthralgia, shin splints, and foot problems. However, the Veteran has already been granted service connection separately for bilateral pes planus and leg shin splints. With regard specifically to the diagnosis of bilateral knee pain/arthralgia, the Board acknowledges the October 2021 statement from the Veteran's representative, in which it was argued that service connection for bilateral knee arthralgia, claimed as myalgia and myositis, is warranted based on the April 2021 VA opinion finding that knee pain/arthralgia is secondary to a service-connected hamstring disability, which is consistent with the August 2020 opinion. However, the Board finds that a claim for service connection for a knee disability is not comparable to a claim for service connection for a chronic disability manifested by myalgia and myositis, nor has the claim been characterized as such throughout this appeal. The Board may not adjudicate a claim for service connection for a knee disability in the first instance. Such a claim has not been developed or adjudicated by the RO, and it would be potentially prejudicial for the Board to consider it on the merits at this time. The Veteran is always free, however, to file a new claim for service connection for a knee disability. The Board acknowledges that the Veteran was noted as having myalgia and myositis in August and November 2012. However, as noted above, the most probative medical evidence of record does not reflect that the Veteran has had a chronic disability manifested by myalgia and myositis throughout the period of time on appeal. The Veteran denied myalgia multiple times in VA treatment records from 2013 to 2020. No VA treatment records document a diagnosis of myalgia or myositis. Moreover, the August 2020 private medical opinion notably did not diagnose the Veteran with a chronic disability manifested by myalgia and myositis either. The Board notes that, historically, symptoms such as pain, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment. Here, the Veteran has not established that he has chronic pain that results in a functional impairment which limits his earning capacity that is not related to diagnosed or diagnosable conditions, such as bilateral pes planus, right hamstring sprain, leg shin splints, knee strain, patellofemoral pain syndrome, or bilateral knee arthralgia. See April 2021 DBQs. Consequently, the Board finds that the Veteran's complaints related to a general chronic disability manifested by myalgia and myositis does not qualify as a current disability for VA purposes under Sanchez-Benitez I and Saunders. The Board has considered the Veteran's contentions that he has a chronic disability manifested by myalgia and myositis related to his service or to a service-connected disability. However, the Board finds that the Veteran is not competent to diagnose himself with such a disability and to link the disability to service or to a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in that regard. In summary, the Board finds that service connection is not warranted for a chronic disability manifested by myalgia and myositis, as the most probative medical evidence of record on the matter does not demonstrate that the Veteran has a chronic disability manifested by myalgia and myositis that is related to service or to a service-connected disability, the Veteran does not have the medical expertise necessary to provide such a diagnosis and a link, and the Veteran's complaints of a general chronic disability manifested by myalgia and myositis do not qualify as a current disability for VA purposes under Sanchez-Benitez I and Saunders. Therefore, as the preponderance of the evidence is against the claim for service connection for a chronic disability manifested by myalgia and myositis, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.