Citation Nr: 21074128 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-50 599 DATE: December 14, 2021 ORDER Entitlement to service connection for a claimed disability manifested by joint and muscle pain, including lumbar strain, is denied. FINDINGS OF FACT 1. The Veteran's disability manifested by lower back pain has been attributed to lumbar strain, a disability with a known clinical diagnosis. 2. The preponderance of the evidence weighs against a finding that the Veteran's current lumbar strain had its initial onset in service or is otherwise related to an in-service disease, injury, or event. CONCLUSION OF LAW The criteria for service connection for a claimed disability manifested by joint and muscle pain, including lumbar strain, have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1985 to October 1992 with subsequent service in the National Guard. This case comes to the Board from a May 2014 decision of the Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board previously considered this case in decision and remands issued in December 2019 and, most recently, in January 2021. In December 2019, this appeal included thirteen claims for benefits. The Board dismissed two claims, granted a third claim, and remanded the other ten claims for further development. After further proceedings, the AOJ resolved several of the remands claims in the Veteran's favor, including a claim for service connection for a disability of the bilateral hips. In January 2021, the Board granted certain increases in the ratings assigned to the Veteran's service-connected right knee disability and denied service-connected compensation for claimed disabilities manifested by chronic fatigue and sleep impairment. The Board remanded the only remaining claim (service connection for a disability manifested by joint and muscle pain) with instructions to arrange a new examination. Service Connection for a Disability Manifested by Joint and Muscle Pain Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). According to his service personnel records, the Veteran was deployed to Southwest Asia during the 1991 Persian Gulf War. Because he served in the Persian Gulf at the relevant time, the Veteran is a "Persian Gulf veteran" as defined in 38 C.F.R. § 3.317(e). When a Persian Gulf veteran exhibits objective indications of chronic disability, including muscle and joint pain which may be a manifestation of undiagnosed illness, VA is authorized, under certain circumstances, to award service-connected disability compensation despite the absence of a specific diagnosis. 38 C.F.R. § 3.317(b). The Board must presume that a qualifying chronic disability, such as undiagnosed illness, is related to service, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026; and (ii) by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.117(a)(1). Factual Background The records of the Veteran's in-service medical treatment mention complaints of knee and ankle pain. After his active duty service, the National Guard arranged a medical examination of the Veteran in March 1993. According to the examiner, the spine, feet, upper and lower extremities were normal. At the same time, the Veteran prepared a report of medical history, in which he indicated that he was experiencing, or had previously experienced, swollen or painful joints, 'trick' or locked knee, cramps in the legs, and frequent or painful urination. On the same form, he marked "no" next to pre-printed text indicating that he was not experiencing, and had never experienced, recurrent back pain. Since then, the Veteran has been granted several benefits compensating him for disabilities associated with pain of the joints or muscles. Because his right to this compensation and the correctness of the relevant disability ratings are no longer on appeal, it is not necessary to thoroughly describe all of the medical and other evidence concerning these disabilities. To determine whether the Persian Gulf presumptions apply, however, it is useful to review these benefits and to compare them to his reported symptoms. With respect to disabilities manifested by joint or muscle pain, the Veteran currently has the following benefits: (1) left knee arthritis (20 percent disabling); (2) right knee degenerative joint disease with MCL sprain (20 percent); (3) left wrist sprain (10 percent); (4) limited adduction associated with left and right hip strain (10 percent each, for both the right and left sides); (5) right knee instability (10 percent); (6) left knee instability (10 percent); (7) limited extension associated with left and right hip strain (zero percent for both left and right); and (8) limited flexion associated with left and right hip strain (zero percent for both left and right). To help decide whether he is entitled to further compensation for a disability manifested by joint and muscle pain, the AOJ obtained an examination report concerning fibromyalgia in May 2014. According to the examiner, there were no physical findings, signs, or symptoms attributable to fibromyalgia. The examiner wrote, "His symptoms are only associated with the joints and when they flare. He denies generalized muscle aches or migrating pain and stiffness. The joint aches that [the Veteran] describes are the joints found claimed and discussed in the knee/hip/wrist [examination reports], he denies migrating joint pains or involvement of any other joints." The examiner gave the following response to a request for information about applying the Persian Gulf presumptions: "there is insufficient evidence to warrant a diagnosis of an acute or chronic bilateral hip condition, muscle pain, joint pain or fatigue disorder or its residuals, therefore no Gulf War opinion is given." Further development revealed a diagnosis of bilateral hip strain and, in October 2020, the AOJ granted service connection for a disability of the hips. As the Board explained in its most recent remand, dated January 2021, the unfavorable May 2014 opinion concerning joint and muscle pain was inadequate. The quoted language reflects an apparent misunderstanding of the Persian Gulf presumptions because, as noted, 38 C.F.R. § 3.317 can sometimes authorize the granting of benefits only in the absence of a clear diagnosis. If all the claimed joint and muscle pain could be attributed to known clinical diagnoses, then this misunderstanding might be harmless error. But in January 2021, it was unclear whether this was true. Post-service treatment records, the Board explained, described pain of the lower back without apparent reference to a specific injury or disease. Accordingly, the Board instructed the AOJ to obtain a new medical opinion addressing whether joint and muscle pain, including lower back pain, was associated with an undiagnosed illness or medically unexplained chronic multi-symptom illness. In June 2021, the Veteran participated in another medical examination and the AOJ obtained separate questionnaires from the examiner describing findings concerning the back and hips as well as a third questionnaire concerning fibromyalgia. The back and hips questionnaires identified diagnoses of, respectively, lumbar strain and bilateral hip strain. According to the examiner, the symptoms did not satisfy the diagnostic criteria for fibromyalgia, such as tender points for pain at the diagnostically significant positions. The Veteran told the examiner that his sister-in-law has fibromyalgia and, for that reason, "he thought he might have it" but, according to the examiner, his pain in the back and hips was related to separate back and hip diagnoses. In addition to the examination questionnaires, the examiner prepared opinions addressing the probable etiology of the back and hip diagnoses and provided information to help apply the Persian Gulf presumptions. The diagnosed lumbar strain, wrote the examiner, was a back condition with a known clinical etiology. The examiner acknowledged the Veteran's report that "back pain started after leaving Kuwait in 1991" but disagreed with the suggestion that the disability had its onset during service or related to an in-service disease, injury, or event. To explain this opinion, the examiner noted the absence of in-service treatment for back pain and the interval of multiple decades between the Veteran's discharge from service and the initial diagnosis of lumbar strain. According to the examiner, the most likely explanation for the lumbar strain was gradual "wear and tear" following many years of standing up while working as a cook. Notwithstanding the earlier decision to grant service connection for bilateral hip strain, the June 2021 examiner prepared an unfavorable opinion concerning the musculoskeletal pain in the Veteran's hips. According to the examiner, pain in the hips was attributable to his hip strain, a known clinical diagnosis. The most likely cause of this condition, the examiner continued, was the Veteran's post-service work as a cook. During the hearing, the Veteran testified that he experienced joint pain in his knees, hips and, sometimes, in his back. He suggested that the pain in his hips was the secondary result of his service-connected knee pain, but he did not make any suggestions about the potential causes of his back pain. Post-service medical records indicate the presence of back pain since at least April 2019. Analysis The Board must first consider whether the June 2021 medical examination reports and opinions, together with the other evidence, are adequate to decide the remaining issue in this appeal. Unlike the May 2014 opinion, the June 2021 report did not make the mistake of attributing all the Veteran's joint and muscle pain to service-connected disabilities while failing to consider his complaints of back pain. However, the examiner did prepare an opinion concerning the Veteran's hip pain which is inconsistent with the AOJ's decision to grant compensation for bilateral hip strain. The Board finds that June 2021 opinion on the etiology of bilateral hip strain, although inadequate, is harmless error. The examiner's task is not to apply the law and regulations governing benefits, but to provide sufficient facts and medical information for the Board's decision to be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With respect to the pain in the Veteran's hips, the Board places no reliance on the June 2021 opinion and assigns that opinion no probative weight. Not only was the examiner's conclusion inconsistent with the AOJ's decision to grant service connection for hip strain, but the examiner's statement that the Veteran did not report any hip pain in service is potentially undermined by the March 1993 medical history report form, which indicates swollen or painful joints. As for the back pain and fibromyalgia, however, the June 2021 reports reflect no similar errors. Consistent with the examination findings in 2014, the June 2021 examiner indicated that the Veteran's symptoms did not meet the diagnostic criteria for fibromyalgia. The examiner attributed the Veteran's back pain to a known clinical diagnosis, lumbar strain. The examiner also clearly considered the likely etiology for this diagnosis, indicating that, in his opinion, a relationship between lumbar strain and the Veteran's military service was less likely than not. The opinion explains this conclusion by relying on the absence of any record of in-service medical treatment for lumbar strain and the interval of many years between the Veteran's discharge from active duty and the first relevant medical records. See Maxon v. West, 12 Vet. App. 453, 459 (1999); aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The examiner also identified an alternative, more likely, etiology for lumbar strain i.e., the Veteran's many years of post-service employment as a cook. Under these circumstances, the Board finds that, with respect to the issue in this appeal, the June 2021 examination reports and opinions addressing lumbar strain and fibromyalgia are adequate. Against the unfavorable June 2021 opinion, the Board must weigh two circumstances which potentially favor the claim. First, it is clear from his personnel records and testimony that the Veteran worked as a cook during service. Although he did not specifically testify or assert in a written statement that he began experiencing back pain in service, the medical history section of the June 2021 spine questionnaire suggests that he made such a statement to the examiner: "[in] 1992 while in Germany [he] started to have back pain . . ." The diagnosis of lumbar strain satisfies the current disability requirement of the claim. But because this disability was attributed to a known clinical diagnosis, he is not eligible for presumptive service connection pursuant to 38 C.F.R. § 3.317. Based on the June 2021 opinion, the Board further finds that the Veteran's in-service work as a cook satisfied the in-service disease, injury, or event requirement. The success of the claim therefore depends on whether the lumbar strain had its initial onset in service or is otherwise related to any in-service disease, injury, or event. See Holton, 557 F.3d at 1366. On this question, the most persuasive evidence is the unfavorable June 2021 medical opinion. The Veteran is, of course, competent to submit information about symptoms he has personally experienced, such as back pain. If he remembers, he is competent to provide information about when he first began to experience back pain. But the theory that he began to experience symptoms of his current lumbar strain while on active duty service conflicts with the information he submitted in the March 1993 report of medical history. At that time, he denied experiencing and, indeed, indicated that he had never experienced recurrent back pain. This statement, which was made to a disinterested health professional much closer to the time of his deployment to Kuwait and Germany, deserves more probative weight than the Veteran's contrary statements to the VA examiner in June 2021. The March 1993 medical history report favors the June 2021 examiner's conclusion that post-service work as a cook, rather than the Veteran's more remote experience in service, caused his current lumbar strain. During the August 2019 hearing, the Veteran testified that he was still working as a cook, suggesting that he worked in that capacity for decades after service before developing his current disability. If the disability began during his active duty service (August 1985 to October 1992), as he apparently suggested to the June 2021 examiner, one would expect the Veteran to have marked "yes" on the March 1993 medical history to indicate that he had previously experienced recurrent back pain. The fact that he marked "no" instead supports the examiner's opinion that he experienced a lumbar strain many years later. For these reasons, it is less likely than not that the Veteran's lumbar strain had its initial onset in service or is otherwise related to any in-service disease, injury, or event. The Board has considered the possibility of compensation for joint or muscle pain associated with parts of the body other than the back. But when he was asked about his joint and muscle pain at the hearing, he testified that his pain affected his knees, hips and, sometimes, his back. He already receives service-connected compensation for disabilities of both knees and both hips. As the Board has explained, the current back disability is not related to service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim for service connection for a disability manifested by joint and muscle pain must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.