Citation Nr: 21070580 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-60 621 DATE: November 24, 2021 ORDER Entitlement to service connection for a disability manifested by joint pain, including as due to an undiagnosed illness, is denied. Entitlement to service connection for a disability manifested by fatigue, including as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in combat in the southwest Asia theater of operations during the Persian Gulf War; thus, he is considered a Persian Gulf Veteran for VA purposes. 2. The record evidence shows that the Veteran's complaints of joint pain are attributable to known clinical diagnoses and are not related to active service, including as due to an undiagnosed illness initially experienced while deployed to the southwest Asia theater of operations during the Persian Gulf War. 3. The record evidence shows that the Veteran does not experience any current disability due to his claimed disability manifested by fatigue which could be related to active service or any incident of service, including as due to an undiagnosed illness initially experienced while deployed to the southwest Asia theater of operations during the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by joint pain, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1117, 1118, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2020). 2. The criteria for service connection for a disability manifested by fatigue, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1117, 1118, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1989 to February 1992, including in combat in the southwest Asia theater of operations during the Persian Gulf War. This appeal has a long procedural history. Most recently, in April 2021, the Board remanded, in pertinent part, the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives to the extent possible. The Board directed that the AOJ contact the Veteran and request that he provide information to obtain identified private treatment records. The Board also directed that the AOJ schedule the Veteran for examinations to determine the nature and etiology of his claimed disabilities manifested by joint pain and fatigue, each including as due to an undiagnosed illness. The AOJ sent a letter to the Veteran in April 2021 requesting information necessary for VA to attempt to obtain identified private treatment records. There is no record of a response. The requested examinations occurred in September 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. In a September 2021 rating decision, the AOJ granted claims of service connection for an anxiety disorder and for gastroesophageal reflux disease (GERD). Thus, issues relating to service connection for these disabilities are no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Service Connection Entitlement to service connection for a disability manifested by joint pain and for a disability manifested by fatigue, each including as due to an undiagnosed illness The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a disability manifested by joint pain and for a disability manifested by fatigue, each including as due to an undiagnosed illness. He essentially contends that he incurred each of these claimed disabilities during active service and experienced continuous post-service disability. He alternatively contends that an undiagnosed illness initially experienced while he was deployed to the southwest Asia theater of operations during the Persian Gulf War caused or contributed to each of these claimed disabilities. The record evidence does not support the Veteran's assertions regarding an etiological link between any current disability manifested by joint pain or fatigue and active service, including as due to an undiagnosed illness. It shows instead that the Veteran's complaints of disability manifested by joint pain have been attributed to several known clinical diagnoses and this disability is not related to active service. It also shows that he does not experience any current disability due to his claimed disability manifested by fatigue which could be attributed to active service or any incident of service, including as due to an undiagnosed illness. The Board notes initially that, because the Veteran's DD Form 214 shows that he served in combat in the southwest Asia theater of operations during the Persian Gulf War, he is considered a "Persian Gulf Veteran" for VA purposes. See 38 C.F.R. § 3.317(e) (2020). Although he is considered a "Persian Gulf Veteran," the record evidence does not support granting service connection for either a disability manifested by joint pain or for a disability manifested by fatigue, each as due to an undiagnosed illness. The available service treatment records show that he denied all relevant pre-service medical history at a pre-enlistment physical examination in June 1989 prior to his entry on to active service in November 1989. He declined to undergo a separation physical examination in February 1992. The Board notes here that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The record evidence also shows that the Veteran's complaints of a disability manifested by joint pain have been attributed to multiple known post-service diagnoses. And, as discussed below in more detail, he does not experience any current disability due to his claimed disability manifested by fatigue which could be attributed to any known clinical diagnosis. In other words, the record evidence shows that he did not experience an undiagnosed illness while deployed to the southwest Asia theater of operations during the Persian Gulf War which caused or aggravated any current disability manifested by joint pain or fatigue. He otherwise has not identified or submitted any evidence demonstrating entitlement to service connection for a disability manifested by joint pain or a disability manifested by a fatigue as due to an undiagnosed illness. In summary, the Board finds that service connection for a disability manifested by joint pain and for a disability manifested by fatigue, each as due to an undiagnosed illness, is not warranted. The Veteran also is not entitled to service connection for a disability manifested by joint pain or for a disability manifested by fatigue on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. Despite his lay assertions to the contrary, the record evidence shows that his current disability manifested by joint pain (diagnosed as rotator cuff tendonitis of the bilateral shoulders and bilateral hand strain) is not related to active service. It also shows that he does not experience any current disability due to his claimed disability manifested by fatigue which is related to active service. As noted above, he denied any relevant pre-service medical history and clinical evaluation was normal at his pre-enlistment physical examination in June 1989 prior to his entry on to active service in November 1989. As also noted above, he declined to undergo a separation physical examination in February 1992. The lack of in-service complaints of or treatment for either of his claimed disabilities is not necessarily fatal to his service connection claims. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The post-service evidence also does not support granting either service connection claim for a disability manifested by joint pain or for a disability manifested by fatigue on a direct basis. For example, on private outpatient treatment in January 2014, the Veteran's complaints included feeling a "little fatigued." The assessment included fatigue. The Board notes that, because it previously found the May 2015 VA examination to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. On VA shoulder and arm conditions Disability Benefits Questionnaire (DBQ) in September 2021, the Veteran's complaints included daily bilateral shoulder pain. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. He described his pain as a dull ache "lasting most of the day." He worked as a mechanic for a school system "and repairs large vehicles such as buses. He reports [that] he is constantly lifting both arms and using large tools such as a wrench while at work." He experienced flare-ups of bilateral shoulder pain 2 3 times per week which lasted for less than 12 hours and were described as sharp pain after lifting his arms over his head "for long periods of time." He denied experiencing functional loss or impairment. Physical examination of the shoulders showed pain on weight-bearing and in active motion not resulting in or causing functional loss, tenderness to palpation in the posterior aspect, positive empty can test, positive external rotation/infraspinatus strength test, and positive lift-off subscapularis test. The VA examiner stated: [The] Veteran is diagnosed with rotator cuff tendinitis. The rotator cuff is a group of muscles and tendons which support and surround the shoulder joints. Injury to the rotator cuff usually occurs with repetitive motion overhead such occupations which include painting or sports activities including baseball, tennis or swimming. Typical signs and symptoms include dull ache like pain, pain when lifting arm overhead or when sleeping on affected side and possibly arm weakness. The condition is commonly caused by overuse. This examiner opined that it was less likely than not that the Veteran's claimed disability manifested by joint pain is related to active service, including as due to an undiagnosed illness. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran's complaint of joint pain had been attributed to a known clinical diagnosis. The rationale further was that the Veteran's rotator cuff tendonitis of the bilateral shoulders was due to overuse. The diagnosis was rotator cuff tendonitis of the bilateral shoulders. On VA hand and finger conditions DBQ in September 2021, the Veteran's complaints included bilateral hand pain. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran stated that he had been told that his bilateral hand pain was from overuse. He experienced flare-ups of bilateral hand pain 1-2 times a week lasting for less than 12 hours which he described as mild aching pain. He denied experiencing functional loss or impairment. Range of motion testing of the hands was all normal. Physical examination of the hands showed tenderness to palpation in the metacarpophalangeal (MCP) joint, proximal interphalangeal (PIP) joint, and dorsal interphalangeal (DIP) joint of the left hand "due to left hand strain," pain on active motion of the left hand which did not result in or cause functional loss, and 5/5 muscle strength. Bilateral hand x-rays showed no evidence of acute fracture or dislocation and preserved joint spaces. The VA examiner stated: [The] Veteran is diagnosed with right and left hand strain. A strain occurs when a muscle or tendon, which attaches muscle to bone, is stretched or torn. These are common injuries often occurring from overuse and/or during sports activities. Common signs and symptoms include pain, swelling, bruising and decreased mobility or range of motion of the fingers. This examiner opined that it was less likely than not that the Veteran's claimed disability due to joint pain is related to active service, including as due to an undiagnosed illness. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran's complaint of joint pain had been attributed to a known clinical diagnosis. The rationale further was that the Veteran's bilateral hand strain was due to overuse. The diagnosis was bilateral hand strain. On VA General Medical Gulf War DBQ in September 2021, the VA examiner concluded that the Veteran had no diagnosed illnesses of unknown etiology. Physical examination was normal. On VA chronic fatigue syndrome DBQ in September 2021, the Veteran's complaints included symptoms of fatigue about once a month lasting for 2 3 days. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. "[The] Veteran reports [that his] fatigue eventually goes away and...he feels back to normal." Continuous medication was not required. Other clinical conditions which may produce similar symptoms has been excluded by history, physical examination, and/or laboratory tests. He did not have and had never had any findings, signs, or symptoms attributable to chronic fatigue syndrome. The VA examiner concluded that the Veteran did not meet the diagnostic criteria for a diagnosis of chronic fatigue syndrome. This examiner also opined that it was less likely than not that the Veteran's claimed disability manifested by fatigue is related to active service, including as due to an undiagnosed illness. The rationale for this opinion was based on a review of the claims file. The rationale also was, "[The] Veteran describes occasional symptoms of fatigue and feeling tired about once monthly [which] resolve after a few days. This is not the same as a diagnosis of [c]hronic fatigue syndrome." The rationale further was that the Veteran did not have a current diagnosis of chronic fatigue syndrome. Contrary to the Veteran's lay assertions, the record evidence shows that his current disability manifested by joint pain is not related to active service. The September 2021 VA examiner specifically opined that it was less likely than not that this disability is related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). With respect to the service connection claim for a disability manifested by fatigue, the Board notes that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a disability manifested by fatigue at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, there is no evidence other than the Veteran's unsupported lay assertions that he experiences any current disability due to his claimed disability manifested by fatigue which could be attributed to active service. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a disability manifested by joint pain or for a disability manifested by fatigue. In summary, the Board finds that service connection for a disability manifested by joint pain and for a disability manifested by fatigue is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.