Citation Nr: 21070979 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 04-32 868 DATE: November 29, 2021 ORDER Entitlement to service connection for fibromyalgia, as secondary to service-connected disabilities, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her fibromyalgia is aggravated beyond its natural progression by her service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for fibromyalgia, as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to December 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in July 2007, the Veteran testified at a hearing before a Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In January 2016, the Board notified the Veteran that the VLJ who conducted the hearing was no longer with the Board and offered her the opportunity to appear for another hearing. The Veteran did not respond or request another hearing, and it has been presumed that she did not wish to have another Board hearing. This matter was previously before the Board in September 2007, March 2010, March 2016, June 2017, February 2018, July 2020, and April 2021. The Board finds that the development conducted after the April 2021 Board remand is of substantial compliance and sufficient, as such provides a ground upon which service connection can be granted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Any deficiency in compliance with the Board's remand directives is harmless given the full grant of the benefit sought on appeal. Initially, the Board notes that the Veteran's service treatment records (STRs) are only partially available. See June 2007 VA Memorandum. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicolson, 19 Vet. App. 215 (2005). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service connection for fibromyalgia In the current appeal, the Veteran asserts that her fibromyalgia is related to her service-connected disabilities. In particular, she reports that she believes that her fibromyalgia symptoms began shortly after an in-service fall which resulted in a broken left ankle. She contends that she has chronic pain, tender points, fatigue, stiffness, and joint pain related to her service-connected disabilities. She also contends that her fibromyalgia is related to her military service, as she reports that her problems began shortly after arriving at her duty station in January 1976. Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) inservice 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, 1167 (Fed. Cir. 2004). Service connection is presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b) and Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a)-(b). Secondary service connection requires evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Regarding service connection on a direct basis, the Board finds that such is not warranted. The Veteran has a current diagnosis of fibromyalgia. See October 2019 VA examination. Accordingly, the first element of service connection is met. With respect to evidence of an in-service incident, illness, or injury, the Veteran's STRs are only partially available. However, the Veteran does not report being seen in service for her complaints related to fibromyalgia. Instead, she contends that her symptoms began in January 1976 and has described such symptoms in a May 2016 statement. However, the Veteran herself reported that she was not seen for these symptoms and complaints until 1989. Medical treatment records indicate that the Veteran was first formerly assessed to have fibromyalgia in 2001, although she reports being given a diagnosis of fibromyalgia as early as 1989. Multiple opinions addressing direct service connection are of record, and all of them weigh against the Veteran's claim. An October 2016 examiner opined that it was not possible to determine if the Veteran had complaints consistent with fibromyalgia during her service, as her STRs are not completely available. The examiner reviewed the record and opined that the Veteran developed the symptoms diagnosed as fibromyalgia in the early 2000s and not previously and that she first presented for care of overall pain in 2005. [In this regard, the Board notes that the Veteran sought treatment prior to 2005, as her private treatment records from January 2002 indicate that she had been followed by that provider for fibromyalgia for the previous seven years.] The examiner opined that nothing was found to show that the Veteran had symptoms characteristic of fibromyalgia prior to that time and that it was less likely than not that such was related to her military service. Similarly, the August 2017 VA examiner opined that it was less likely than not that the Veteran's fibromyalgia was etiologically related to her active service. The examiner noted the incomplete nature of the Veteran's STRs and explained that, based on the post-service medical records, the Veteran was first diagnosed with fibromyalgia in 2004 and had developed the symptoms which would eventually be diagnosed as such earlier in the 2000s, many years after discharge. The examiner opined that there were no records found showing that the Veteran had symptoms consistent with fibromyalgia prior to that time. Another VA examination is of record from October 2019, at which time the examiner opined that, while the Veteran reported an onset of symptoms she believed were due to fibromyalgia during service, her post-service medical records show that she was first diagnosed with fibromyalgia in 2001. The examiner noted that private records reported an onset in the early 1990s and that, given the temporal distance between diagnosis and the Veteran's separation from service, it was less likely than not due to, or the result of, her active service. The most recent examination from June 2021 similarly finds that the Veteran's fibromyalgia is less likely than not due to her military service on a direct basis, as she did not identify, nor do the private treatment records from the time of diagnosis note, any significant contributing past medical history. The examiner explained the mechanisms of fibromyalgia and how a diagnosis is made and suggested that the Veteran's service-connected disabilities are contributing to her clinical picture but are not solely and directly responsible for its development. While there are issues with some of the VA examination opinions provided, as the examiners provided different dates for the Veteran's fibromyalgia diagnosis, the examinations taken together are sufficient and do not provide a nexus on a direct basis. As the only medical evidence of record regarding direct service connection is against the claim and as there is a lack of competent medical evidence to the contrary, service connection on a direct basis is not warranted. Turning to the question of secondary service connection, as noted above, a current disability has been established. With respect to evidence of a service-connected disability, the record reflects that the Veteran was granted service connection for various disabilities, effective January 14, 2002. In particular and relevant to her claim herein, service connection has been granted for left ankle lateral collateral ligament sprain status-post arthroscopic surgery, right lateral collateral ligament sprain, right knee osteoarthritis associated with the left ankle disability, degenerative joint disease of the left knee associated with the left ankle disability, lumbar spine degenerative disc disease with degenerative arthritis, left thigh limitation of flexion, left thigh impairment, and degenerative arthritis of the right hand and right thumb. Thus, a service-connected disability has been demonstrated. As the first and second elements of secondary service connection are satisfied, the remaining question is whether the evidence establishes that the Veteran's fibromyalgia was caused or aggravated by her service-connected disabilities. On this question, there is evidence both in favor and against the matter. However, the most probative and adequate evidence of record is in favor of the Veteran's claim, especially as it relates to the question of aggravation. An October 2016 VA examiner opined that it was less likely than not that the Veteran's fibromyalgia was proximately due to, or the result of, her service-connected right ankle disability. The examiner opined that the cause of fibromyalgia is not known, but that the Veteran's right ankle instability cannot be considered as a cause of fibromyalgia. The examiner mistakenly believed that the Veteran had withdrawn her claim for fibromyalgia and did not provide further explanation or rationale for the provided opinion, nor did the examiner address aggravation or the Veteran's other service-connected disabilities. Another VA opinion is of record from November 2020, although the opinion is of even less probative value as the examiner opined that the Veteran did not have a diagnosis of fibromyalgia despite the plethora of evidence to the contrary. The examiner opined that the Veteran's fibromyalgia is not related to her service-connected injuries and indicated that she instead likely has chronic pain syndrome due to a multitude of different injuries from both in and out of service. Additional VA opinions are of record from June 2021, and such are the only opinions which addressed both causation and aggravation in addressing secondary service connection. The June 2021 VA examiner first opined that it was less likely than not that the Veteran's fibromyalgia was proximately due to, or the result of, her service-connected disabilities. The examiner discussed the characterization of fibromyalgia and the method of diagnosis and suggested that her chronic pain from her multitude of service-connected conditions is contributing to her clinical picture but that her chronic pain from these disabilities is not solely and directly responsible for the development of her fibromyalgia. In addressing aggravation, the June 2021 examiner opined that it was at least as likely as not that the Veteran's fibromyalgia was aggravated beyond its natural progression by her service-connected disabilities. The examiner discussed the symptoms associated with fibromyalgia and noted that researchers believe that fibromyalgia amplifies painful sensations by affecting the way the brain and spinal cord process painful and nonpainful signals. The examiner stated, taking the Veteran's chronic pain from her multitude of service-connected disabilities into consideration, that it is at least as likely as not that those conditions are currently contributing to her clinical picture and that her fibromyalgia has been aggravated by these service-connected disabilities. There are no other opinions that adequately address aggravation in the context of her claim for secondary service connection. While the June 2021 examiner, in response to one of the April 2021 remand directives, indicated that it was not possible without relying on mere speculation to separate out the clinical manifestations of the Veteran's fibromyalgia and her service-connected disabilities, the examiner ultimately indicated that the Veteran's fibromyalgia has been aggravated beyond its natural progression by her number of service-connected conditions. In addressing her fibromyalgia as compared to her service-connected somatic syndrome disorder, the examiner focused only on the widespread musculoskeletal pain and stiffness in finding an overlap in the clinical complaints. However, the Veteran has reported extensive symptoms that she believes to be associated with her fibromyalgia and has asserted that these symptoms have been found on various VA examinations. These symptoms include, but are not limited to, widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, anxiety, widespread muscle pain, rigidity, tiredness, concern, trigger point pain, paresthesias, and nausea. While some of these symptoms may overlap with her already service-connected disabilities, she is accorded the benefit of the doubt in this regard. The Board places more probative weight on the aggravation opinion provided by the June 2021 over the somewhat unclear and indeterminate opinion addressing the distinction of clinical manifestations. Indeed, the most probative evidence of record favors the Veteran's claim for service connection on a secondary basis. The June 2021 VA examination, in particular, addressed the nature of her fibromyalgia and is the only opinion of record which addressed the question of aggravation. The June 2021 VA examiner found that the Veteran's fibromyalgia has been aggravated beyond its natural progression by her service-connected disabilities. The positive aggravation opinion is complete in its rendering and is not contradicted by other evidence of record. (CONTINUED ON NEXT PAGE) Accordingly, the elements of secondary service connection have been met, and entitlement to service connection for fibromyalgia, as secondary to the various service-connected disabilities, is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.