Citation Nr: 21076405 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-03 584 DATE: December 23, 2021 ORDER Service connection for fibromyalgia is denied. Service connection for chronic fatigue, to include insomnia, is denied. Service connection for neurological symptoms is denied. REMANDED Service connection for a respiratory condition, including as due to an undiagnosed illness, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has fibromyalgia, chronic pain, to include insomnia, or neurological symptoms. CONCLUSION OF LAW The criteria for service connection for fibromyalgia, chronic pain, to include insomnia, or neurological symptoms are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1997 and from December 2003 to March 2005. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Fibromyalgia Chronic fatigue to Include Insomnia Neurological symptoms After review of the record, the Board concludes that the Veteran does not have a current diagnosis of fibromyalgia, chronic pain, to include insomnia, or neurological symptoms for which service connection can be granted and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's VA medical records do show that he has complained of and been treated for both pain and fatigue. However, these symptoms have not been diagnosed as separate disorders or disabilities independent of specific medical causes. The Veteran's pain has been linked to his cervical, lumbar, and other medical conditions. Similarly, the Veteran's fatigue, including his insomnia, has been associated with his posttraumatic stress disorder (PTSD). The Veteran also denied any fibromyalgia or related symptomology and no neurological symptoms were noted upon his VA examination. See September 2021 VA examinations. There is no evidence of record which showed that the Veteran has a diagnosed disorder or disability of fibromyalgia, chronic pain, to include insomnia, or neurological symptoms. While the Board recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity; however, the evidence of record does not show that the Veteran's reported pain is a disability separate from his diagnosed medical conditions which amounts to an independent functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Furthermore, the Board acknowledges the Veteran's statements regarding his pain and his fatigue. However, while the Veteran believes he might have a current diagnosis of fibromyalgia, chronic pain, to include insomnia, or neurological symptoms, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination reports which show no diagnosis of fibromyalgia, chronic pain, to include insomnia, or neurological symptoms. Therefore, the preponderance of the evidence is against the granting of service connection for fibromyalgia, chronic pain, to include insomnia, or neurological symptoms. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Respiratory Condition In the Veteran's September 2021 VA examinations, an examiner noted that the Veteran's respiratory symptoms might evidence an undiagnosed illness. However, the Veteran's September 2021 Gulf War Illness examination did not address these findings. The Board finds that a new examination is warranted. TDIU In its prior remand, the Board directed that the Veteran receive a TDIU form, VA Form 21-8940. The record shows that the VA mailed the form to the Veteran in May 2021, though the Veteran has yet to return the completed form. Regardless, the issue of a TDIU is intertwined with the remand of the Veteran's claim for service connection for a respiratory disorder, above. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Forward the claims file to appropriate clinician to obtain an addendum opinion regarding the Veteran's reported lung/respiratory disorder. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as telehealth interview is acceptable The examiner is asked to: a.) Clarify all disabilities related to the Veteran's reported lung/respiratory disorder, to include dyspnea and/or shortness of breath on exertion. The examiner should note that symptoms manifesting in functional impairment constitutes a disability for VA purposes, even if such cannot be attributed to a formal diagnosis. If the Veteran's lung/respiratory symptoms cannot be attributed to a known diagnostic entity, the examiner must provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to his service in Southwest Asia. b.) If the examiner makes a diagnosis of a separate and distinct respiratory condition, is it at least as likely as not that the respiratory condition had its onset in or is otherwise etiologically related to active service, to include exposure to containments while serving in the Persian Gulf? c.) Is it at least as likely as not that a respiratory disorder was proximately caused by the Veteran's PTSD any of his service-connected disabilities? d.) Is it at least as likely as not that a respiratory disorder was aggravated by the Veteran's PTSD or medications for any of his service-connected disabilities? (Continued on the next page) Note, the October 2019 VA examiner indicated that the Veteran's sensation of shortness of breath might be related to his psychiatric disability. Note in-service exposure to environmental contaminants during Southwest Asian service has been conceded. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.