Citation Nr: 21073000 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-39 445 DATE: December 7, 2021 ORDER Entitlement to service connection for a disability manifested by muscle and joint pain, to include as due to environmental exposures during the Persian Gulf War and/or as due to an undiagnosed or multi-symptom illness is denied. Entitlement to service connection for a disability manifested by fatigue, to include as due to environmental exposures during the Persian Gulf War and/or as due to an undiagnosed or multi-symptom illness, and/or as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. A muscle and joint pain disability were not diagnosed in service and the disability is not shown to be etiologically related to service or any event, injury, or disease during service. 2. A fatigue disability was not diagnosed in service and the disability is not shown to be etiologically related to service or any event, injury, or disease during service, or the service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a muscle and joint pain disability, to include as due to exposure to environmental agents in Southwest Asia, have not been are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for fatigue, claimed as secondary to PTSD, to include as due to exposure to environmental agents in Southwest Asia, have not been are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1989 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 and November 2020, the Board remanded the current appellate claims for further development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran had been represented by an attorney as part of this case. However, that attorney withdrew as accredited representative in May 2021. Accordingly, correspondence was sent to the Veteran in August 2021 regarding this matter, and asking who he wised to represent him before the Board. In September 2021, the Veteran responded that he wished to represent himself, and to proceed with the appeal. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. To establish service connection, the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Laypersons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1 (2004). A qualifying chronic disability for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). The Board notes the Veteran has been accorded multiple examinations regarding the present appeal, to include in 2011, 2019, and 2021. As discussed in the November 2020 remand, the 2011 and 2019 examinations were deficient to the extent they did not address all of the Veteran's theories of entitlement for the claimed disabilities. These deficiencies were corrected by the 2021 VA examinations, and the Veteran has not contended otherwise. 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). 1. Entitlement to service connection for a disability manifested by muscle and joint pain, to include as due to environmental exposures during the Persian Gulf War and/or as due to an undiagnosed or multi-symptom illness The Veteran contends that he is entitled to service connection for unspecified joint conditions. Fibromyalgia is potentially applicable in considering service connection, including on a presumptive basis, for an undiagnosed illness manifested by joint pain. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). The Veteran submitted a written statement in April 2011, and he indicated that he had manifested joint pain since his exposure to environmental toxins during the Persian Gulf War, specifically biological and chemical agents including smoke from oil well fires, paints, solvents, insecticides, petroleum fuels and their combustion products, nerve agents, pyridostigmine bromide, anthrax, botulinum toxoid, vaccinations, and infectious diseases. The Veteran's claim is corroborated by his DD-214 which indicates that the Veteran has received decorations consistent with service in the Persian Gulf War. Fibromyalgia is one of the conditions associated with service in the Southwest Asia theater of operations during the Persian Gulf War. In a February 2021 VA examination, the examiner opined that the Veteran did not have a chronic diagnosis for his muscle and joint pain. The Veteran reported generalized "weakness" and stated that he did not want to address the complaint of muscle and joint pain. The examiner noted that an April 1989 service medical record indicated a diagnosis of mild rhabdomyolysis. However, the examiner also highlighted that the Veteran was marked as making a full recovery and that there was no evidence that the Veteran's symptoms did not resolve with rest and hydration. In a separate February 2021 VA medical examination, the same examiner opined that the claimed disability was less likely than not related to active service. The rationale provided was that "the four standard Gulf War disability patterns are not applicable for this case. There is no evidence of persistent/recurrent symptoms or concern of a diagnosis for the claimed condition of muscle and joint pain." On examination, the Veteran stated that he was not concerned about muscle and joint complaints and "does not want to address it." The Board notes that in the February 2021 Gulf War examination, there was no indication of fibromyalgia. An August 2019 VA examination also returned a finding of no fibromyalgia. Nothing in the record causes the Board to doubt the qualifications of the aforementioned VA examiners to provide competent medical evidence, nor does the Veteran contend otherwise. The examiners were familiar with the Veteran's medical history from review of his VA claims folder, and noted pertinent findings of such in the examination report. The four standard Gulf War disability patterns are not applicable in this case. There is no evidence of persistent or recurrent symptoms or concern of a diagnosis for the claimed muscle and joint pain. There is no chronic diagnosis is made for muscle and joint pain. The objective examination is normal, and examiners have found the symptoms are subjective only. The Veteran believes his muscle and joint pain is related to an in-service injury, event, or disease. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, the Veteran stated on various occasions that he was not concerned about muscle and joint pain. Consequently, the Board gives more probative weight to the medical evidence of record. No other basis for establishing service connection for the claimed disability is of record, to include the presumptive provisions of 38 C.F.R. § 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a muscle and joint pain disability, and the claim must be denied. 2. Entitlement to service connection for a disability manifested by fatigue, to include as due to environmental exposures during the Persian Gulf War and/or as due to an undiagnosed or multi-symptom illness, and/or as secondary to service-connected PTSD The Veteran contends that he is entitled to service connection for fatigue which was originally characterized as a claim for chronic fatigue syndrome (CFS). In an August 2019 VA examination, the Veteran stated that he was having significant fatigue about 10 years prior to the examination, despite getting an adequate amount of sleep. He underwent a workup for his thyroid and was found to have hypothyroidism. He was subsequently placed on Synthroid, which helped improve and alleviate some of his fatigue. The Veteran follows up with his PCP every 6 months to monitor his thyroid hormone levels. There was no indication of CFS on examination. In a February 2021 VA examination, the examiner noted that the Veteran did not have a diagnosis of CFS. The Veteran reported that he recalled a sudden onset of extreme fatigue while he was in Iraq. He stated that he was on a "4 on, 4 off" schedule and began experiencing his symptoms at that time. He could not recall how long he was assigned to work that schedule. The Veteran reported that since the onset of fatigue, he was diagnosed with PTSD and did not feel that his PTSD was related to his fatigue symptoms since they had been ongoing and worsening over the years. Reported symptoms included muscle and joint aches, extreme fatigue, waking up feeling exhausted and "like I have been awake for 3 days", daily headaches, depression, anxiety, and difficulty falling asleep. The February 2021 examiner opined that the claimed disability was less likely than not incurred in or caused by active service. The rationale provided was that there was no chronic diagnosis made for fatigue; the objective exam was normal; symptoms are subjective only; and a nexus had not been established. The examiner found that the claimed condition of fatigue is a symptom of hypothyroidism and not the result of a specific exposure event in Southwest Asia. "Hypothyroidism is the result of inadequate production of thyroid hormone or inadequate action of thyroid hormone in target tissues." Regarding secondary service connection, the February 2021 VA examiner provided opinions to the effect the claimed fatigue was not proximately due to or the result of the service-connected disability, nor was it aggravated by such. In support of these opinions, the examiner noted that the conditions of fatigue and PTSD are not medically related. "The fatigue is a separate entity entirely from the PTSD and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship." The Board reiterates it has determined these VA examiners are qualified to provide competent medical evidence, and was familiar with the Veteran's medical history. The Veteran believes his fatigue is related to an in-service injury, event, or disease, to include exposure to environmental toxins while serving in the Persian Gulf War. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, supra; see also Kahana, supra. Furthermore, there has not been a clinical finding of a diagnosis of CFS, and the Veteran's fatigue is linked to his hypothyroidism which no examiner has linked to environmental toxins while serving in the Persian Gulf War. Rather, the February 2021 VA examiner opined the hypothyroidism was not related to service. Consequently, the Board gives more probative weight to the medical evidence of record. No other basis for establishing service connection for the claimed disability is of record, to include the presumptive provisions of 38 C.F.R. § 3.309. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a fatigue disability, and the claim must be denied. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.