Citation Nr: 21077629 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-52 971 DATE: December 30, 2021 ORDER Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder is remanded. FINDING OF FACT The Veteran had honorable active service in the Southwest Asia theater of operations during the Persian Gulf War and has been diagnosed with fibromyalgia, which has manifested to a compensable degree. CONCLUSION OF LAW The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 1131, 1154 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to April 1992 and July 2002 to March 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2015 and January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for fibromyalgia Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted 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). In addition, pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2021. Under 38 C.F.R. § 3.317, there are two types of qualifying chronic disabilities: (1) An undiagnosed illness; and (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) functional gastrointestinal disorders. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, 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. 3, 9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuro-psychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran has claimed that he has fibromyalgia. The Veteran's service personnel records, to include his DD Form 214, reflect that from July 1990 to April 1992 he had military service in Saudi Arabia and Kuwait on the USS THEODORE ROOSEVELT, including its deployment in the Persian Gulf as part of Operation Desert Shield. Therefore, he is a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317 benefits and the law and regulations pertaining to undiagnosed illness and medically unexplained chronic multisymptom illness incurred due to Persian Gulf service are applicable in this case. Turning to the evidence, the Veteran's service treatment records contain no complaints, diagnosis, or treatment of fibromyalgia. The report of medical history and medical examination from his March 1992 separation have no indication of fibromyalgia; nor do his post-deployment medical assessment from February 2003. VA treatment records beginning in August 2015 record a "chronic widespread pain." A clinician stated that the Veteran had "features of fibromyalgia including generalized non-inflammatory pain, excessive fatigue, sleep disturbances, intermittent temporomandibular joint pain, migraine headaches, depressed mood, normal inflammatory markers in the past, and few tender points on the physical examination today." However, VA did not diagnose fibromyalgia. The Veteran filed a claim for service connection for fibromyalgia in December 2015. A Disability Benefits Questionnaire (DBQ) for fibromyalgia was prepared in December 2015. The examiner concluded that the Veteran did not have fibromyalgia because VA had not diagnosed that condition, in spite of treating the Veteran for chronic pain. A March 2018 VA rheumatology treatment record assessed myofascial pain syndrome with features of fibromyalgia, and polyarthralgias and limpoma posterior capine. The Veteran continued his treatment at VA thereafter. In a March 2021 treatment record, VA diagnosed fibromyalgia. Turning to the criteria for service connection, the Veteran has a current diagnosis of fibromyalgia. As discussed above, the Veteran is a veteran of the Gulf War and is entitled to the presumption of 38 C.F.R. § 3.317. Fibromyalgia is rated according to Diagnostic Code 5025; fibromyalgia warrants a compensable rating if symptoms require continuous medication for control. 38 C.F.R. § 4.71a. VA treatment records indicate that the Veteran is prescribed pregabalin for his fibromyalgia. Therefore, given that the Veteran's qualifying chronic disability became manifest to at least a degree of 10 percent before December 31, 2021, the Board finds that service connection on a presumptive basis is warranted for fibromyalgia as a medically unexplained chronic multisymptom illness. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, is remanded. The Veteran was afforded a DBQ for posttraumatic stress disorder (PTSD) in February 2018. The examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD but did meet the diagnostic criteria for unspecified anxiety disorder and major depressive disorder, recurrent, moderate. The examiner then opined that "[t]here are no records indicating a diagnosis of anxiety or depression during his active-duty military service and therefore his conditions are less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's military service." VA treatment records indicate that the Veteran has reported anxiety and depressed mood beginning during active service but the examiner did not address these reports. See CAPRI, October 18, 2017, p4. A VA medical opinion is inadequate if it fails to address lay statements and relies exclusively on the absence of an in-service diagnosis in concluding that a disability is less likely than not related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the February 2018 medical opinion was inadequate for VA purposes. A new DBQ for mental disorders was prepared in April 2018; however, it did not include a medical opinion. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is necessary in order to obtain an adequate medical opinion. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2021 to the present. 2. Schedule the Veteran for a VA examination for an acquired psychiatric disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is an acquired psychiatric disability at least as likely as not related to service, including activities during Operation Desert Shield? The examiner's attention is directed to the Veteran's September 2017 statements that his feelings of anxiety and depressed mood started during active-duty service. Provide a rationale to support the opinion(s). Robert A. Elliott II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.