Citation Nr: 21006099 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-11 210 DATE: February 3, 2021 ORDER Entitlement to service connection for a disability manifested by joint pain of the left shoulder and bilateral elbows and hips, to include as due to an undiagnosed illness, is denied. FINDING OF FACT The Veteran’s claimed disability manifested by joint pain has been attributed to a known clinical diagnosis, and is not a manifestation of an undiagnosed illness, medically unexplained chronic multi symptom illness, or a qualifying chronic disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by joint pain including as due to an undiagnosed illness, are not met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to December 1995, to include in the Southwest Asia theater of operations from September 1990 to March 1991. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is as follows: In September 2015, the Board denied the Veteran’s claim of entitlement to service connection for a disability manifested by joint pain of the left shoulder, bilateral elbows, and right hip, and the Board remanded the claim of a disability manifested by joint pain of the left hip. Subsequently, the Veteran appealed the September 2015 Board decision to U.S. Court of Appeals for Veterans Claims (CAVC) and in February 2017 CAVC issued a Memorandum Decision vacating the September 2015 Board decision. Further development followed, including September 2017 and 2019 and August 2020 Board remands. In September 2020, the RO issued a supplemental statement of the case (SSOC) denying the Veteran’s claims. The Board finds substantial compliance with the August 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to service connection for a disability manifested as joint pain of the left shoulder and bilateral elbows and hips, to include as due to his Gulf War service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as degenerative arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became 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 during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “objective indications of chronic disability” includes 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases). See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multi-symptom 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(ii). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the evidence of record was previously summarized in the September 2015, August 2017, September 2019, and August 2020 Board decisions, the following will not be a full recitation of the facts. Turning to the evidence of record, the service treatment records (STRs) indicate in November 1982, he reported extreme pain in both knees, radiating to his hips; however, the physician determined this was the result of chondromalacia patella in the left knee and tendonitis in the right knee. No hip disorder was diagnosed. In August 1985, he reported left hip pain after falling while playing sports and the examiner determined there was tenderness and a mild contusion over the left iliac crest. After August 1985, the STRs do not indicate he sought treatment for, or voiced complaints related to any joint pain associated with his left shoulder, either elbow, or either hip. In a September 1992 dental health assessment, he indicated he did not experience general joint pain. In January 2015, he underwent a Gulf War General Medical Examination which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. During the examination, which included individual examinations for his hips, elbows, and shoulders, he subjectively reported that he experienced “stiffness, locking, and popping” in his right elbow during service. Moreover, during the reports he subjectively reported that he did not experience left shoulder joint pain until 2007 and bilateral hip pain until 2005. The report also involved coinciding X-Rays which led the examiner to diagnose the Veteran with ostearthritis and degenerative arthritis in his left shoulder and his bilateral hips and elbows. The report determined he did not have any “undiagnosed illnesses for which no etiology was established.” Ultimately, the examiner opined it was less likely than not that his left shoulder arthritis and bilateral hip and elbow arthritis were the result “toxic gulf War exposure.” In September 2015, the Board remanded the Veteran’s claim for further development to include a medical opinion on his hip joint pain. In December 2016, a VA medical opinion was entered into the claims file which included a review of the claims file and a recitation of complaints and medical history. The examiner determined it was less likely than not his in-service hip contusion caused his current arthritis and is more likely due to his obesity. In August 2020, the Board remanded the Veteran’s claims for further development to include VA medical opinions on his left shoulder, elbows, and hips. In November 2020, four VA medical opinions were entered into the claims file. All opinions included a review of the claims file and recitations of complaints and medical history. As to his hips, the examiner determined it was less likely than not his bilateral hip arthritis is the result of active duty service. Specifically, the examiner noted the Veteran’s in-service left hip injury less likely than not resulted in his diagnosed degenerative arthritis. Moreover, degenerative arthritis is known to result from repetitive wear over time and that his advanced age, 52, when diagnosed indicates that is the most likely cause for his left and right hip arthritis. As to his left shoulder, the examiner determined it was less likely than not his left shoulder arthritis was the result of active duty service. Specifically, the examiner acknowledged his in-service claims of left elbow “stiffness, locking, and popping;” however, the examiner noted the joints are mechanically separate and distinct and due to the lack of any documented in-service left shoulder injury, his current left shoulder arthritis was less likely than not due to his in-service injuries. Moreover, the examiner reiterated the previously mentioned causes of degenerative arthritis and his age as the likely causes for his left shoulder arthritis. As to his elbows, the examiner determined it was less likely than not his bilateral elbow arthritis is the result of active duty service. The examiner acknowledged his in-service claims of left elbow “stiffness, locking, and popping;” however, there was no clinical or objective diagnosis and other than the documented sports related general injuries, the STRs are devoid of any documented traumatic injuries directly involving the elbow. Moreover, the STRs are silent for any traumatic injuries or general injuries related to his right elbow disability. Lastly, the examiner reiterated the previously mentioned causes of degenerative arthritis and his age at the time of diagnosis as the likely causes for his bilateral elbow arthritis. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding service connection for a disability manifested by joint pain on a direct basis or as due to a chronic qualifying illness related to Persian Gulf War service. As an initial matter, for certain chronic diseases, such as arthritis, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, consistent with the evidence described herein, presumptive service connection is not warranted because the Veteran is not shown to have been diagnosed with arthritis within one year of separation from service; nor is there credible medical evidence of continuity of symptomatology from separation of service until he was diagnosed with each disability. The Board recognizes that the Veteran currently is diagnosed with arthritis in his left shoulder, hips, and elbows. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support a finding of an in-service event or a medical nexus between his current diagnosed disability and his active duty service. Here, although the Board acknowledges the Veteran’s in-service injuries and lay statements of pain associated with his joints during active service, the November 2020 medical opinions determined those injuries would not result in his current arthritis. As to a medical nexus, the November 2020 opinions determined that his arthritis is more likely than not due to general “wear and tear” associated with his age and due to his increased weight. Additionally, the Veteran himself stated his bilateral hip pain did not begin until 2005 and his left shoulder pain did not begin until 2007; a full 10 and 12 years after active duty service. Moreover, he was not diagnosed with arthritis until 2015; 22 years after active duty service. Furthermore, the evidence of record is devoid of any competent or credible medical evidence or opinions that indicate his joint pain is the result of active duty service. As to his claim that his joint pain is the result of Gulf War illness, the Board acknowledges he had service in the Persian Gulf; however, the November 2020 VA opinions and the evidence of record determined his arthritis had a clear and specific etiology and diagnosis. Thus, his arthritis is not a "qualifying chronic disability" in which presumptive service connection can be granted. Additionally, arthritis is not a medically unexplained chronic multi-symptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or a diagnosed illness that warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B)(1). Additionally, the evidence of record is devoid of any competent or credible medical evidence to support his contention that any possible toxin exposure during the Gulf War caused his arthritis. Indeed, the only evidence of a medical nexus between his current disabilities and active duty service or toxin exposure during the Gulf War are the Veteran’s own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his joint pain is related to active duty service and may be caused by Gulf War Illness, he is not competent to make such a medical determination. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are not capable of lay observation and his contentions are of little probative value. Accordingly, and absent evidence to the contrary, the evidence of record does not support a finding of direct service connection due to toxin exposure. In summary, the Board finds the preponderance of the evidence is against finding the Veteran’s disability manifested by joint pain of the left shoulder and bilateral hip and elbow joints is related to active duty service or to toxin exposure during the Gulf War. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b). Accordingly, the Veteran's claim for entitlement to service connection for a disability manifested by join pain, is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.