Citation Nr: 21070316 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-35 466 DATE: November 23, 2021 ORDER Entitlement to service connection for disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) is granted. Entitlement to service connection for insomnia (claimed as sleep disturbances), secondary to service-connected sleep apnea, on a causation basis, is granted. REMANDED Entitlement to service connection for disability manifested by fatigue (other than sleep apnea and insomnia) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) began during active service. 2. The Veteran's insomnia is caused by her service-connected sleep apnea. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for insomnia, as secondary to service-connected sleep apnea, on a causation basis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to October 1994, March 2003 to June 2003, February 2004 to January 2005, August 2007 to July 2008, and November 2012 to November 2013. She served in the Southwest Asia theater of operations. These matters come before the Board of Veterans' Appeals (Board) from a December 2016 rating decision. In August 2018, the Board remanded these matters for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 hearing and a transcript of the hearing is associated with her claims file. As for characterization of the issues on appeal, in light of the Veteran's reported symptoms and contentions, to encompass all disorders that are reasonably raised by the record, as service connection has already been awarded for chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, right wrist strain, and sleep apnea, and as the Board is awarding service connection for insomnia, the Board has re-characterized the claims of service connection for chronic joint and muscle pain of the upper and lower extremities and chronic fatigue as claims of service connection for disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) and disability manifested by fatigue (other than sleep apnea and insomnia). See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim; claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). Service connection is also warranted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) The Veteran contends that she has current disability manifested by widespread joint and muscle pain which had its onset in service. The Board finds, for the following reasons, that the Veteran experiences current disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain), and that the evidence is at least evenly balanced as to whether this disability began during active service. The Veteran's treatment records and statements from the Veteran and her husband show that the Veteran currently experiences widespread joint and muscle pain which impairs her ability to move and sleep. Her VA treatment records and the report of an October 2016 VA Gulf War examination include diagnoses of polyarthralgia and osteoarthritis, but some x-rays in her treatment records are normal and it is otherwise unclear whether widespread arthritis has been documented. Nevertheless, even if there is no clear evidence of any specifically diagnosed disability during the claim period other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain, the evidence of widespread joint and muscle pain alone is sufficient in some circumstances to show the existence of current disability. See Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110). In this case, there is evidence that the Veteran's pain causes impairment in earning capacity. Therefore, the current disability requirement has been met with respect to the Veteran's claimed disability manifested by widespread joint and muscle pain. There is also evidence of widespread joint and muscle pain in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that she began to experience widespread joint and muscle pain in service in 2004 following her deployment to Iraq. A DD Form 215 for the period of service from February 2004 to January 2005 indicates that she served in an imminent danger pay area (Iraq) from April 2004 to October 2004. She has reported on several occasions, including on a July 2005 "Information in Support of Claim for Service Connection for Post-Traumatic Stress Disorder" form and during an April 2017 Board hearing, that while serving in Iraq in 2004 her unit experienced incoming enemy mortar fire. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report her exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts her reports. Therefore, the Board finds that her reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Iraq. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service disease, but may also assist a veteran in showing incurrence of the disability in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran is competent to report widespread joint and muscle pain in service. Her reports of such symptoms in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of her service in Iraq. There is no clear and convincing evidence to the contrary. Also, the Veteran reported on an October 2004 post-deployment health assessment following her deployment to Iraq that she experienced "swollen or painful joints" and "muscle aches." Hence, the Board finds that the presence of widespread joint and muscle pain in service is established. Moreover, the Veteran's post-service medical records and lay statements from the Veteran and her husband indicate that the Veteran's widespread joint and muscle pain has continued in the years since service. The Veteran is competent to report continuous widespread joint and muscle pain in the years since service, and her husband is competent to report his observations of the Veteran's symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence that explicitly contradicts these reports and they are generally consistent with the evidence of record. Therefore, the Board concludes that the reports of continuous widespread joint and muscle pain in the years since service are credible. In sum, the evidence reflects that the Veteran experienced widespread joint and muscle pain in service and that there have been continuous symptoms in the years since service. She also experiences current disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain). There is no medical opinion that is specifically contrary to a conclusion that the current disability manifested by widespread joint and muscle pain had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for disability manifested by widespread joint and muscle pain (other than chronic lumbar strain with degenerative joint disease, left knee degenerative joint disease, and right wrist strain) is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for insomnia, secondary to service-connected sleep apnea, on a causation basis The Board finds, for the following reasons, that the Veteran has current insomnia, and that this disability is caused by her service-connected sleep apnea. Medical records, including a May 2017 letter from J.D. McConnell, M.D., reveal that the Veteran has been diagnosed as having insomnia. Thus, current sleep disability other than sleep apnea has been demonstrated. In his May 2017 letter, Dr. McConnell noted that he interviewed the Veteran and reviewed her records. He explained, in pertinent part, that recent publications in medical literature have demonstrated that in veterans returning from deployment, insomnia is very common, and that when polysomnography is performed in this population, obstructive sleep apnea is found to coexist to a much greater extent than those that do not have insomnia. While the connection between the two conditions of insomnia and obstructive sleep apnea is not clear, it is "very likely that in [the Veteran's] case her insomnia is likely caused by [obstructive sleep apnea], and that the two conditions are inextricably linked." Overall, the Veteran's obstructive sleep apnea is "likely the causative factor" for her insomnia. Dr. McConnell's May 2017 opinion is based upon an interview of the Veteran, a review of her records and medical literature, and consideration of her reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In light of the above medical opinion, the Board finds that the Veteran's insomnia is caused by her service-connected sleep apnea. There is no medical opinion that is contrary to this conclusion. Therefore, entitlement to service connection for insomnia (claimed as sleep disturbances), as secondary to service-connected sleep apnea, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for disability manifested by fatigue, other than sleep apnea and insomnia, is remanded. The Veteran contends that she experiences disability manifested by fatigue that began following her return from Southwest Asia and has continued in the years since that time. She has already been awarded service connection for sleep apnea and, as explained above, the Board is awarding service connection for insomnia. Also, the list of signs or symptoms which may be manifestations of undiagnosed illness or a medically unexplained chronic multisymptom illness related to service in the Southwest Asia theater of operations includes fatigue. See 38 C.F.R. § 3.317. Overall, the Veteran has persistent or recurrent symptoms of disability manifested by fatigue, the record indicates that the disability may be associated with service, and the record does not contain sufficient information to make a decision on the claim. Therefore, the Veteran should be afforded an appropriate examination upon remand to assess the nature of any current disability manifested by fatigue other than sleep apnea and insomnia, and to obtain a medical opinion as to whether any such disability is related to service. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the West Palm Vista electronic records system (dated to October 2010), the Bay Pines VA Healthcare System (dated to September 2018), and the VA Salt Lake City Healthcare System (dated to February 2014). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for disability manifested by fatigue, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for disability manifested by fatigue from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the West Palm Vista electronic records system for the period since October 2010; the Bay Pines VA Healthcare System for the period since September 2018; the VA Salt Lake City Healthcare System for the period since February 2014; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current disability manifested by fatigue other than sleep apnea and insomnia, and whether any such disability is related to service. The clinician should answer all of the following questions: (a) Has the Veteran experienced chronic fatigue syndrome at any time since approximately September 2016? (b) Is it at least as likely as not that any identifiable disability manifested by fatigue other than sleep apnea and insomnia experienced by the Veteran since approximately September 2016 (1) began during any period of active service; OR (2) is related to an injury or disease during service? (c) Is it at least as likely as not that any identifiable disability manifested by fatigue other than sleep apnea and insomnia experienced by the Veteran since approximately September 2016 has at least a partially understood pathophysiology AND etiology? (d) Does any fatigue experienced by the Veteran since approximately September 2016 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology? The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.