Citation Nr: 21077426 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-21 081 DATE: December 29, 2021 ORDER Entitlement to service connection for fibromyalgia is granted. FINDING OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran has been diagnosed with fibromyalgia. CONCLUSION OF LAW The criteria for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the United States Army from February 1987 to October 1991 and from February 2010 to August 2010, with service during the Gulf War era. The Veteran also had service in the Army reserve. For her meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, the Army Achievement Medal, and the Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. Additional evidence has been added to the Veteran's file since the July 2019 Statement of the Case (SOC). At the August 2021 hearing, the Veteran, through her attorney, waived RO consideration of this additional evidence. Therefore, the issue is appropriately before the Board for adjudication. A copy of the transcript has been associated with the claims file. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifest "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117; see 38 C.F.R. § 3.317 (a); 81 Fed. Reg. 71,382-84 (Oct. 17, 2016) (extending the presumptive period for compensation for Gulf War veterans from December 31, 2016 to December 31, 2021). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2)(i). A medically unexplained chronic multisymptom illness (MUCMI) has been defined as a "diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317 (a)(2)(ii). "Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained." Id. Along with the three examples of a medically unexplained chronic multisymptom illness provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). In this matter, the Veteran asserts entitlement to service connection for fibromyalgia, which she contends was incurred as a result of her service in Southwest Asia. For the reasons set forth below, the Board finds that service connection for fibromyalgia is warranted. As indicated above, the Veteran served on active duty from February 1987 to October 1991 and from February 2010 to August 2010. The Veteran's VA records show that she served in Southwest Asia. The Veteran is therefore a Persian Gulf Veteran pursuant to 38 C.F.R. § 3.317(d)(2). The Veteran's VA treatment records reflect a diagnosis and treatment for fibromyalgia. In the Veteran's VA treatment records, she has consistently reported fatigue, tiredness, joint pain, and brain fog. In December 2015, her VA treatment records note she does not have "Gulf War Syndrome" but rather a group of chronic multisymptom illnesses that are medically unexplained, but also found in the general population. The Veteran's VA treatment records reflect a diagnosis of fibromyalgia. Her records reflect she has been prescribed medication for fibromyalgia. Her VA treatment records from August 2016 note she easily meets the diagnostic criteria for fibromyalgia. In August 2017, her VA treatment records reported high suspicion of fibromyalgia with symptoms of chronic muscle diffuse muscle, joint and skin pain without symptoms or findings to suggest another underlying process with severe fatigue and tender points on exam. In April 2018, the VA treatment records document a diagnosis and treatment for fibromyalgia. Her VA treatment records also note she has a history of fibromyalgia. The Veteran underwent VA examinations for her symptoms. The Veteran underwent a Gulf War examination in March 2016. In April 2016, she underwent a VA examination for chronic fatigue syndrome. The VA examiner concluded she does not meet the criteria for chronic fatigue syndrome and her fatigue is related to her viral syndrome. In March 2018, the Veteran underwent a VA examination for fibromyalgia. The VA examiner concluded there was no diagnosis of fibromyalgia and noted inconsistencies in the reported history. The VA examiner noted the private treatment records are not suggestive of fibromyalgia. The VA examiner also concluded there is insufficient evidence to support or confirm a diagnosis of a current viral infection. A February 2019 VA examination for chronic fatigue syndrome noted there is no diagnosis of fibromyalgia. In August 2020, the Veteran underwent a Gulf War VA examination. The VA examiner focused solely on gastroesophageal reflux disease and related it to her diet change during her deployments. The Veteran's fibromyalgia symptoms were note discussed or evaluated. The Veteran testified at her August 2021 VA hearing. She reported extreme fatigue, pain, numbness, dizziness, and headaches. She testified that she has attempted for years to find a diagnosis for her symptoms but was unable to do so until she was diagnosed with fibromyalgia. The Veteran testified in-service she experienced fatigue, night sweats, and swollen lymph nodes. The Veteran testified about the on-going testing she has undergone to account for her symptoms. Accordingly, the Board has weighed the probative evidence of record, in particular the March 2018 VA examination, the VA treatment records documenting a diagnosis of fibromyalgia, and the lay statements and hearing testimony of the Veteran. As a result, the Board finds that the evidence is at least in equipoise as to whether the Veteran is diagnosed with fibromyalgia. The Board is cognizant the Veteran is service connected for viral syndrome of unknown origin with associated neuralgia and fatigue. The service-connected viral syndrome is evaluated under the rating schedule as noncompensable for symptoms of fatigue, malaise, intermittent neuralgia, and arthralgia and rated under the diagnostic criteria for chronic fatigue syndrome. The March 2018 VA examination concluded there was no evidence of any symptoms regarding the service-connected viral syndrome and no evidence of chronic fatigue syndrome. However, the evidence of record does document a diagnosis of fibromyalgia. Additionally, fibromyalgia is characterized by "pain and stiffness in the muscles and joints that either is diffuse or has multiple trigger points," see DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (32nd Ed. 2012) at 303, which the Board finds are separate and distinct manifestations from those associated with her service-connected disabilities. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Code 5025 for fibromyalgia provides ratings for "widespread musculoskeletal pain and tender points with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Reynaud's-like symptoms." The rating criteria for fibromyalgia allows for providing a singular rating for fibromyalgia that takes into consideration the varying symptoms associated with the disability. The regulations do not include a note directing that compensable symptoms be separately rated; however, the regulations also do not prohibit the Board from providing separate service connection grants for these symptoms that are not specifically included in the rating for fibromyalgia, or in the Veteran's case, the separate service-connection viral syndrome of unknown origin at a noncompensable evaluation. The rule against pyramiding is addressed in 38 C.F.R. § 4.14, which notes that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2015) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Given the wording of the fibromyalgia rating criteria, allowing for a rating for fibromyalgia "with or without" associated fatigue, the Board finds that the rule against pyramiding is not broken by providing separate service-connection/ratings. The Veteran's fibromyalgia may be rated under the appropriate diagnostic code without consideration of her nerve pain, fatigue, malaise, and neurologia symptoms she reported with her viral syndrome. A separate rating for the Veteran's fibromyalgia allows for separate ratings for her service connected viral syndrome in order to provide full coverage of the Veteran's disabling symptomatology. Therefore, the Board finds that service connection for fibromyalgia would not constitute impermissible pyramiding under 38 C.F.R. § 4.14. In this matter, the Veteran had the requisite service in the Southwest Asia Theater of Operations during the Persian Gulf War, and she has a current diagnosis of fibromyalgia, which manifested to compensable degrees under 38 C.F.R. § 4.71, DC 5025 and 38 C.F.R. § 4.88b, DC 6354 respectively, prior to December 31, 2021. Service connection is therefore presumed for fibromyalgia. See 38 C.F.R. § 3.317. (Continued on next page) In claims based on medically unexplained chronic multisymptom 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. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Under these circumstances, the record is sufficient to award service connection for fibromyalgia. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.