Citation Nr: 21073461 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-39 686A DATE: December 8, 2021 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a neurological disorder claimed as a stroke is denied. REMANDED Entitlement to an initial compensable disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. Entitlement to a compensable disability rating prior to May 29, 2021, and in excess of 10 percent thereafter, for limitation of extension of the right knee is remanded. Entitlement to a compensable disability rating for limitation of extension of the left knee is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for a cervical strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had fibromyalgia at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's claimed neurological disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a neurological disorder claimed as a stroke are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2004 to August 2005. In October 2019, she testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The appeal was most recently before the Board in February 2021 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A June 2021 rating decision granted service connection and assigned separate 10 percent ratings for radiculopathy of the bilateral lower extremities involving the sciatic nerve, effective September 13, 2016. As the Veteran's radiculopathy disabilities are manifestations of her service-connected degenerative arthritis of the lumbar spine, her initial appeal of that claim encompassed ratings for all manifestations of the condition. The ratings for the lower extremity radiculopathies involving the sciatic nerves are part of the appeal of the increased rating claim for the back that was initially perfected to the Board and are therefore before the Board. 38 C.F.R. § 4.71a, Note (1). In the June 2021 rating decision, service connection was granted and separate ratings assigned for limitation of extension of each of the Veteran's knees. The Veteran's bilateral knee limited extension is a manifestation of her service-connected bilateral knee disabilities. When the Veteran disagreed with the amount of compensation awarded for her disabilities, she did not limit her appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to her service-connected bilateral knee disabilities. See AB v Brown, 6 Vet. App. 35 (1993). For these reasons, the issues have been recharacterized as shown above. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for fibromyalgia The Veteran contends that she suffers from fibromyalgia that was related to her active duty service. The Board concludes following a review of the record that the Veteran does not have a current diagnosis of fibromyalgia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran submitted a January 2017 letter from a private doctor who stated that she was being treated for multiple medical conditions, including fibromyalgia. Both VA treatment records and private medical records indicate that the Veteran has a past medical history that included fibromyalgia. In September 2017, the Veteran underwent a VA examination for her claimed disorder. After an examination of the Veteran and review of the record, the examiner concluded she has never been diagnosed with fibromyalgia. In February 2021, the Board remanded this issue to obtain an addendum opinion from a VA examiner addressing medical records supportive of the Veteran's claim. In a March 2021 addendum opinion, a VA examiner reviewed the record and concluded that it was less likely than not that the Veteran was diagnosed with fibromyalgia. In support of this conclusion, the examiner noted that the January 2017 letter from the private examiner noting the Veteran was being treated for fibromyalgia did not provide any specific information to support a diagnosis. The examiner also noted treatment records dated from September 2016 which showed the Veteran suffered from several arthralgias and other symptoms. However, the examiner further stated that the Veteran was diagnosed with multiple diagnoses related to her musculoskeletal system, including cervical strain, hip strain, degenerative joint disease of the knees, and lumbosacral degenerative disease and associated radiculopathy. The examiner stated that the Veteran's reports of various joint pain symptoms can be attributed to these diagnosed medical conditions, and as such, these various symptoms cannot be used to support a diagnosis of fibromyalgia. Further, the examiner stated there was no objective evidence of fibromyalgia during the Veteran's service. Finally, the examiner stated that the Veteran's history of thyroid disease could also explain some of her reported symptoms. The VA examiner reviewed the Veteran's claims folder and concluded following a review of the record that it was less likely than not that the Veteran was properly diagnosed with fibromyalgia. Instead, the examiner attributed the Veteran's reports of joint pains to her variously diagnosed musculoskeletal conditions. The examiner provided a clear conclusion and supporting rationale based on a review of the record. As such, this opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). To the extent that VA and private medical evidence of record show a past diagnosis or treatment for fibromyalgia, the Board finds that this medical evidence is outweighed by the March 2021 VA opinion because these various records fail to explain any basis for a diagnosis of fibromyalgia. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Congress has specifically limited entitlement to service connection for disease or injury to cases where such in-service events have resulted in a current disability. See 38 U.S.C. § 1110. Thus, without "competent evidence of current disability," there can be no award of service connection. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Based on a careful review of the evidence, the Board finds that service connection is not warranted for fibromyalgia as the evidence in the record weighs against a finding of diagnosis of such pathology. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and her service connection claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a neurological disorder claimed as a stroke The Veteran has variously maintained that she suffered from either the residuals of a stroke or a neurological condition whose symptoms began to manifest during active duty service. The question for the Board is whether the Veteran's currently diagnosed neurological disorder is related to service. The Board concludes that the preponderance of the evidence is against finding that the diagnosed neurological condition is proximately due to or the result of service. Service treatment records show that in March 2004 the Veteran was struck in the forehead and suffered a laceration. In support of her claim, she provided a November 2013 private treatment record which shows she was hospitalized for relapsing-remitting vision changes. At the time of her hospitalization, she reported a history of possible neurologic symptoms that she stated dated back five to 10 years, which potentially places the onset of her condition during active duty service. Subsequent VA treatment records note the Veteran has a past medical history of right eye blindness. In April 2015, the Veteran underwent a VA examination to assess whether she suffered from residuals of a traumatic brain injury (TBI); however, the examination report did not address the Veteran's right eye blindness, the contentions she made about her claimed stroke or the November 2013 hospitalization. In February 2021, the Board remanded this issue to obtain a more responsive VA examiner's examination and opinion. In May 2021, the Veteran underwent a VA examination where the examiner noted diagnoses of transient ischemic attack versus cerebrovascular accident in November 2013. The Veteran reported that at the time of her November 2013 hospitalization she was feeling numbness on the right side of her arm. She went to sleep and later awoke experiencing blindness in her right eye. The Veteran stated that she was unable to see from her right eye with the exception of "tiny bits of light." Following an examination and review of the record, the March 2021 VA examiner concluded that it was less likely than not that the Veteran's diagnosed neurological condition either had its onset in or was caused by active service. In support of this conclusion, the examiner noted the Veteran's reports of experiencing stroke-like symptoms with right eye blindness during the time of her November 2013 hospitalization. However, after a review of the entire medical record, the examiner stated that there was no evidence of imaging studies suggestive of a stroke diagnosis or potentially central retinal artery occlusion (CRAO). The examiner stated that imaging studies of the head and neck were negative for any intracranial pathology, hemorrhages or ischemia. A CTA conducted of the head and neck did not confirm the presence of any occlusion or hypoperfusion to the retinal artery, which the examiner stated was usually indicative of retinal artery stroke or occlusion. Further, there was no examination report in the record to support the diagnosis of CRAO. Additionally, the examiner stated there was no documented evidence of stroke symptom onset with vision issues during the Veteran's military service and no records indicating a link to military service. After careful consideration of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a neurological disorder. The most persuasive evidence of record is the March 2021 VA examination and associated medical opinion. The examiner's opinion was based on an accurate medical history and contains a well-reasoned explanation in support of the conclusion. As such, the opinion is entitled to significant probative weight. See Nieves-Rodriguez, supra. Significantly, there are no medical opinions of record linking the Veteran's claimed neurological disorder with service. The Board acknowledges the Veteran's statements in support of her claim. However, as a lay person, she has not been shown to have specialized training sufficient to render an opinion as to the etiology of her claimed neurological conditions. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords greater probative weight to the March 2021 VA medical examiner's opinion than to the lay statements in the record. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, service connection for a neurological disorder is not warranted. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. 3. Entitlement to a compensable disability rating prior to May 29, 2021, and in excess of 10 percent thereafter, for limitation of extension of the right knee is remanded. 4. Entitlement to a compensable disability rating for limitation of extension of the left knee is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. 6. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for a cervical strain is remanded. The Board remanded the above issues in February 2021, in part, to obtain new VA examination findings consistent with Correia v. McDonald, 28 Vet. App. 158 (2016). Most recently, in April 2021, the Veteran underwent VA examinations to evaluate the severity of the above knee and spine disabilities. No explanation was provided for why complete Correia-compliant range-of-motion test results were absent in the respective examination reports, particularly with respect to weightbearing vs. nonweight-bearing positions. New VA examinations with complete findings for the Veteran's knee, back and neck disabilities are therefore needed on remand. 7. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 8. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. As the radiculopathy claims are intertwined with the back claim on appeal, further consideration of these issues must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 9. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. 10. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. The Veteran testified at her Board hearing that following a dental root canal during service, she began experiencing numbness in her upper extremities that was later diagnosed as carpal tunnel syndrome. VA treatment records confirm she has a past medical history of carpal tunnel syndrome. In February 2021, the Board remanded this matter to afford the Veteran a VA examination with opinion on these issues. In April 2021, the Veteran underwent a VA examination where she was diagnosed with bilateral carpal tunnel syndrome. However, the examiner's opinion is inadequate to adjudicate the claims because the negative opinion is based exclusively on the absence of any documented evidence. An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Remand is needed for a more responsive addendum VA opinion that specifically considers her lay statements concerning the onset and progression of her symptoms. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee degenerative arthritis, bilateral knee limitation of extension, lumbar spine degenerative arthritis, cervical strain, and associated bilateral lower extremity radiculopathy. The examiner should provide a full description of the respective disabilities and report all signs and symptoms necessary for evaluating the Veteran's respective disabilities under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. With respect to the Veteran's musculoskeletal disabilities, the examiner must test the Veteran's active motion, passive motion, range-of-motion with weight-bearing and without weight-bearing. If range-of-motion findings in any of these positions cannot be obtained and documented in an examination report, the examiner must explain why this is so. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should specifically identify all neurological manifestations related to the low back and cervical spine, noting any nerve involved and the extent of that involvement. 2. Please review the examination report to ensure that it actually complies with the remand directives stated above. Specifically, if range-of-motion measurements are not provided by the examiner in compliance with Correia, the examination must be returned to obtain complete medical findings. 3. Ask the examiner who conducted the Veteran's April 2021 VA examination (or another appropriate examiner if that examiner is unavailable) for supplemental comment on the etiology of the Veteran's diagnosed bilateral carpal tunnel syndrome. Copies of all pertinent records must be made available to the examiner for review. The examiner is requested to address the following question: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's diagnosed bilateral carpal tunnel syndrome had its onset in or is otherwise related to active duty service? The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of her symptoms. In attempting to comment on this determinative issue of causation, the April 2021 VA examiner impermissibly relied on the absence of medical records documenting any nexus to military service while failing to evaluate the Veteran's lay statements. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.