Citation Nr: 21069258 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-26 027 DATE: November 18, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to service connection for a muscle and joint disorder, to include fibromyalgia, is denied. REMANDED Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a skin disorder is remanded. Entitlement to service connection for a non-specific respiratory disability, to include as due to an undiagnosed illness, is remanded. FINDINGS OF FACT 1. The evidence of record does not support a current separately diagnosed chronic fatigue syndrome. 2. The evidence of record does not support current fibromyalgia or other diagnosed muscle and joint disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for a muscle and joint disorder, to include fibromyalgia, are not met. 38U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1987 to April 1992, including service in Southwest Asia. Initially, the Board of Veterans' Appeals (Board) notes that the Veteran is incarcerated. See September 2021 of Prisons Match. Incarcerated veterans "are entitled to the same care and consideration given to their fellow veterans." Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). The United States Court of Appeals for Veterans Claims (Court) has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38U.S.C. §§1101, 1112, 1113, 1137; 38C.F.R. §§3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Chronic Fatigue Syndrome The Veteran contends that he has a sleep disturbance disorder, to include chronic fatigue syndrome, related to his active service. The Board finds the Veteran does not have a separately ratable sleep disturbance or chronic fatigue syndrome. On VA examination in April 2015, the examiner found no diagnosis of chronic fatigue syndrome. The Veteran did have headaches, neuropsychological symptoms, and sleep disturbance, each of which has been separately service-connected and rated as headaches, posttraumatic stress disorder (PTSD), and sleep apnea, respectively. The Veteran did exhibit cognitive impairment attributable to chronic fatigue syndrome, such as inability to concentrate, forgetfulness, and confusion nearly constantly, however, the examiner remarked that the Veteran's fatigue is more likely a symptom of his PTSD or sleep apnea. Based on the VA medical opinion, and the lack of alternative evidence, the Board must conclude that the Veteran does not have a separately ratable disability, such as chronic fatigue syndrome, and the appeal is denied. Significantly, a current diagnosis is the first critical bar for a claim of service connection, and there is no evidence of a diagnosis of chronic fatigue syndrome independent of already service-connected disabilities. In the absence of proof of a present disability, there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is simply no probative evidence of chronic fatigue syndrome and the claim fails on this basis alone. The preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38U.S.C. §5107; 38C.F.R. §3.102. Fibromyalgia The Veteran contends that he has muscle and joint pain, to include fibromyalgia related to his active service. The Board finds there is insufficient evidence to show the Veteran has a diagnosed chronic muscle and joint disorder, to include fibromyalgia, and the appeal is denied. On VA examination in April 2015, the Veteran's diagnosis of fibromyalgia was marked, but he had not undergone treatment or therapy for the condition. The examiner noted current positive trigger point in epicondyle areas bilaterally, and fibromyalgia symptoms of widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, headaches, depression, and anxiety were constant or nearly constant. However, the examiner found that the Veteran's fibromyalgia did not affect his ability to work. In a July 2015 addendum, the examiner stated that, while the Veteran had a positive trigger point in epicondyle areas bilaterally, he did not meet the diagnosis criteria for fibromyalgia. VA treatment records indicate that the Veteran complained of muscle and joint pain, and requested an evaluation, but there is no evidence of a diagnosis. The Board observes that the symptoms listed on the examination report are attributable to the Veteran's other service-connection disabilities, specifically, sleep apnea, headaches, and PTSD. Based on the VA medical opinion, and the lack of alternative evidence, the Board must conclude that the Veteran does not have a muscle and joint disability, such as fibromyalgia, and the appeal is denied. Significantly, a current diagnosis is the first critical bar for a claim of service connection, and there is no evidence of a diagnosis of fibromyalgia independent of already service-connected disabilities. In the absence of proof of a present disability, there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is simply no probative evidence of fibromyalgia, or another diagnosable muscle and joint disability, and the claim fails on is basis alone. The preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38U.S.C. §5107; 38C.F.R. §3.102. REASONS FOR REMAND VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her the necessary examination at the closest VA medical facility. 38 U.S.C. § 5711. However, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton, 8 Vet. App. at 191. If the RO cannot arrange for the examinations, it must document its substantial efforts to do so in the claims file. The RO should also obtain available medical evidence from the correctional facility(ies) that have housed the Veteran, and any other outstanding VA or private treatment records in accordance with VA policy. New & Material Evidence Skin Disorder, to include Eczema The Veteran contends that he has a skin disorder that began during active service. The Board finds that, in light of relevant evidence submitted, further evidentiary development is necessary. On VA examination in April 2015, the Veteran reported development of itchy rashes during active service, that were diagnosed as eczema. He also reported that the rashes subsequently resolved. Currently, he exhibited an itchy rash on his chin area that showed erythema and minimal scale, that the examiner determined was likely atopic dermatitis or seborrheic dermatitis. The rash affected less than 5 percent of his body area. While the April 2015 examiner attributed the Veteran's current rash to dermatitis, there was no nexus opinion provided, and no accompanying rationale. Without an adequate medical opinion, the Board is unable to appropriately adjudicate this claim. As such, a remand is necessary in order to obtain a medical opinion concerning the nature and etiology of the Veteran's current skin condition. Service Connection Respiratory Disorder The Veteran contends that he has a respiratory condition related to his active service. Due to a change in law, a remand is necessary in order for his claim to be considered under the updated legislation. Specifically, on VA examination in April 2015, he reported that he loses his voice when overexerted. There was no associated with shortness of breath, wheezing cough, or chest pain. He indicated that the symptoms began during service, although there are no entries in the service medical records concerning this symptom. The examiner remarked that the Veteran worked for a chemical company for several years following his active service. X rays showed no evidence of acute process or active disease in the chest or lungs, and pre-bronchodilator results were normal. Effective August 5, 2021 the VA amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions: 1) asthma, 2) rhinitis, and 3) sinusitis to include rhinosinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. See 86 FR 42724; see also 38 C.F.R. § 3.320. The Veteran has qualifying Southwest Asia service. Due to this change in regulation, the Board finds it prudent to obtain an additional medical opinion to determine whether the Veteran has any diagnosed respiratory disabilities as part of his claim; to include any asthma, rhinitis, or sinusitis disabilities which are etiologically related to his Southwest Asia service, to specifically include as due to this new presumption. Accordingly, these matters are REMANDED for the following action: Take all reasonable measures to have the Veteran examined for VA compensation purposes. As the Veteran is still incarcerated, arrange for examination pursuant to appropriate guidance. Provide prison medical personnel with the appropriate DBQ to be completed if necessary. The requested examinations are as follows: A. If possible, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of his claimed skin condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's diagnosed skin disorder is at least as likely as not (a 50 percent probability or greater) etiologically related to his active duty service, or the in-service diagnosed eczema. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. B. Also, if possible, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of his claimed respiratory condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner is asked to list any and all of the Veteran's diagnosed respiratory disabilities, to include any diagnosed respiratory disorder, including rhinitis, sinusitis, or asthma. Also, the examiner should opine whether any such diagnosed respiratory disorder(s) is(are) at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's active duty service. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. If it is not possible to schedule in-person VA examinations, the RO must refer the claims file to a VA examiner for the preparation of appropriate and adequate etiological opinions. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.