Citation Nr: 21006197 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-04 932 DATE: February 3, 2021 ORDER Service connection for a right shoulder disorder is denied. Service connection for fibromyalgia is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder disorder did not have its onset during active service and is not otherwise related to active service. 2. The Veteran's fibromyalgia did not have its onset during active service and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1995 to December 1999. Effective April 2013, the Veteran is in receipt of a 100 percent service-connected disability rating. This matter was previously before the Board of Veterans’ Appeals (Board) in September 2020 when the issues were remanded with instructions in accordance with an April 2020 Joint Motion for Partial Remand (JMPR) from the United States Court of Appeals for Veterans Claims (CAVC), which vacated the April 2019 Board denial of entitlement to service connection for a right shoulder disorder and fibromyalgia. As instructed by the April 2020 JMPR and as directed in the September 2020 Board remand, additional VA medical records were associated with the Veteran’s file. Additionally, in September 2020, VA requested that the Veteran complete and return VA Form(s) 21-4142 and 21-4142a such that records of reported treatment from Lakeshore Hospital in Shelby, Michigan, could be obtained. The Veteran was notified that a decision may be made on her claims if a response was not received within 30 days. However, as of the date of this decision, the requested VA Form(s) 21-4142 and 21-4142a have not been received. Additionally, pursuant to the September 2020 Board remand, VA medical opinions were provided in November 2020 pertaining to the issues of service connection for a right shoulder disorder and fibromyalgia. Further development having been completed in accordance with instructions contained in the April 2020 JMPR from CAVC as directed in the September 2020 Board remand; the matter is once again before the Board. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § § 1101; 38 C.F.R. § §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, 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. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding 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). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). 1. Service connection for a right shoulder condition is denied. The Veteran contends that her right shoulder disorder is related to her active service. Specifically, the Veteran contends that her right shoulder disorder was caused by a December 1996 injury that she sustained in-service, when her right arm was caught between a boat and wench. Although the Veteran has a current diagnosis of right shoulder pain, for the reasons set forth below, service connection for a right shoulder disorder is not warranted. Service treatment records (STRs) evidence the following: a complaint of a crush injury to her right arm between a boat and wench resulting in pain from her right shoulder down to her hand in December 1996, an impression of a normal right shoulder was noted at the time; a back and neck muscle strain in February 1997; a diagnosis of a trapezius/rhomboid muscle strain in February 1997; an indication of an injury from lifting a boat one-month prior with a diagnosis of bilateral rhomboid myositis in March 1997; and a diagnosis of impingement syndrome in March 1997. However, she denied having a painful or “trick” shoulder in August 1999 and in her December 1999 separation examination. VA and private treatment records show that the Veteran was not diagnosed with a right shoulder disorder post-service until February 2011, 12 years after her separation from service. As to the cause of the disorder, an April 2011 physician reviewer of a magnetic resonance imaging (MRI) found that testing indicated age-appropriate appearance of the right shoulder. Additionally, a May 2014 radiology report reflects a normal study of the right shoulder, with no evidence of acute fracture or dislocation and no erosions or degenerative changes. The Veteran was afforded a VA examination in January 2014. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA medical records and claims file were completed in conjunction with the examination. The examiner noted that the Veteran had a crush injury in 1996 in-service, which was noted to have caused right shoulder pain and trapezius strain. The examiner noted that the Veteran reported receiving treatment post-discharge as early as 2007. However, the examiner opined that the Veteran’s right shoulder pain is less likely as not related to her right shoulder injury in-service. The examiner noted that the Veteran’s December 1999 separation examination does not indicate a shoulder disorder, and the physical examination at the time indicated that the shoulder was within normal limits. The examiner also noted that documentation regarding a right shoulder disorder post-service was not until 2011, 12 years after her service, and that no documentation of chronicity of the disorder was found. In the August 2018 Board hearing, the Veteran indicated that she injured her right shoulder in a 1996 boating accident in-service. However, she testified that she did not report the incident in-service because she did not want to be perceived as a malingerer. The Veteran submitted an October 2018 letter from a VA social worker stating that she has chronic pain in her shoulder due to an injury that she sustained in-service. However, this letter does not provide a rationale and, thus, it is assigned little probative value. The Veteran also submitted an October 2018 letter from her grandmother indicating the Veteran has very limited mobility in her arms. However, this letter does not show a nexus. As noted above, in September 2020 VA requested the Veteran submit authorization to obtain records pertaining to the reported treatment from Lakeshore Hospital in Shelby, Michigan. There has been no response from the Veteran as of the date of this decision. Pursuant to the September 2020 Board remand, an opinion was provided in November 2020 based on a review of available records. The examiner opined that the Veteran’s right shoulder disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s STRs show complaints of right shoulder/neck pain. Contrary to her account, the examiner also noted that the Veteran’s post-service medical records are silent for a right shoulder or neck disorder until 2011, more than 11 years post-service. However, the examiner stated that no evidence was found to support chronicity of symptomatology nor a nexus between the Veteran’s current right shoulder pain and her service. Although the Veteran believes that her right shoulder disorder is related to her service, to include the December 1996 injury, the Veteran is not competent to opine that her right shoulder disorder is due to an event, injury, or disease during service. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no competent evidence of record showing a link between the Veteran's right shoulder disorder and her service. Based upon the evidence of record, the Veteran's right shoulder disorder did not manifest during service and the evidence fails to establish that her right shoulder disorder is etiologically related to service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right shoulder disorder. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for fibromyalgia is denied. The Veteran contends that her currently diagnosed fibromyalgia is related to her active service. Although the Veteran has a current diagnosis of fibromyalgia, the preponderance of the evidence is against the claim and service connection for fibromyalgia is not warranted. STRs evidence the following: complaints of upper and lower back pain in August 1998; complaints of fatigue and nausea for three days in December 1998; complaints of nausea and abdominal pain in April 1999; complaints of pelvic pain in September 1999; and complaints of recurrent headaches in March 1999. Service treatment records are silent for any complaints or diagnoses of fibromyalgia or chronic pain syndrome. The August 1999 report of medical history and December 1999 report of medical history both indicate normal clinical evaluations. Although VA medical records reflect that the Veteran was prescribed medication for fibromyalgia as early as 2011, the records do not indicate that the Veteran was diagnosed with fibromyalgia in 2011. Instead, VA treatment records indicate that the Veteran was not diagnosed with fibromyalgia until 2014, 14 years after her separation from service. The Veteran was afforded a VA examination in January 2014. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA medical records and claims file were completed in conjunction with the examination. Diagnoses of fibromyalgia and chronic pain syndrome were noted, with a date of diagnosis of 2011. The examiner opined that the Veteran’s fibromyalgia and chronic pain syndrome are less likely as not a result of her service. The examiner noted that there is no documentation in the STRs which indicate a diagnosis or signs or symptoms consistent with a diagnosis of fibromyalgia or chronic pain syndrome. The examiner noted that documentation of a diagnosis of chronic pain syndrome is more than 10 years post-service. In the August 2018 Board hearing, the Veteran indicated that her pain began spreading throughout her body after an in-service boating incident, that she received treatment from a hospital in Shelby, Michigan, and that a physician told her at the time that her fibromyalgia was related to her service. As noted, the Veteran has not responded to VA’s September 2020 request she provide authorization to obtain treatment records from Lakeshore Hospital in Shelby, Michigan, was not received as of the date of this decision. Pursuant to the September 2020 Board remand, an opinion was provided in November 2020 based on a review of available records. The examiner opined that the Veteran’s fibromyalgia was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Although the examiner noted that STRs document treatment for right shoulder and neck pain in-service, and various diagnoses were documented in association with her right shoulder and neck pain, the examiner noted that there is no documentation found in STRs regarding a diagnosis of fibromyalgia. The examiner stated that the cervical neck pain documented during service had a clear etiology, which was injury, and that no evidence was found to support that her cervical neck pain is related to a diagnosis of fibromyalgia. The examiner stated that the back pain documented during service was caused by injury and pregnancy, and that the STRs regarding back pain do not document associated signs or symptoms consistent with a diagnosis of fibromyalgia. The examiner stated that the headaches documented in the STRs were symptoms associated with a diagnosis of allergic rhinitis and viral sequelae, and that no documentation was found indicating that her headaches were associated with widespread musculoskeletal pain, fatigue, sleep disturbance or other symptoms that would be associated with a diagnosis of fibromyalgia. The examiner also stated that there is no evidence to support a finding that the Veteran’s headaches during service were related to a remote diagnosis of fibromyalgia in 2011. The examiner stated that the etiology of pelvic pain is documented in the STRs as being related to PID or endometriosis and noted that the December 1999 separation examination indicates no documentation of pelvic pain and that her pelvis was within normal limits on physical evaluation. The examiner stated that STRs do not support that pelvic pain was a chronic disorder during service, and that no documentation was found indicating that pelvic pain was associated with widespread musculoskeletal pain, fatigue, or sleep disturbance. The examiner noted that a June 2012 hysteroscope evidenced endometrial ablation for menorrhagia, but that there is no documentation of menorrhagia during service. Instead, the examiner noted that the record documents a specific diagnosis that caused pelvic pain, and that no evidence was found to support that pelvic pain evaluated and treated during service is linked to her diagnosis of fibromyalgia more than 10 years post-service. The examiner stated that myalgias experienced by the Veteran during service were associated with a diagnosis of an infection, for which she was treated with antibiotics. The examiner noted that there is no documentation in the STRs which indicate that myalgias persisted, and that there is no evidence to support myalgias associated with infection during her service were related to a remote diagnosis of fibromyalgia in 2011. The examiner stated that there is objective documentation in the STRs which indicate that nausea, fatigue, or dyspepsia were persistent symptoms throughout the Veteran’s service and post-service. However, the examiner noted that the causes of the Veteran’s symptoms of nausea, heartburn, and fatigue were clearly defined as being gastroenteritis and viral syndrome. The examiner noted that a diagnosis of fibromyalgia was documented several years post-service, and that the evidence does not support a nexus between the Veteran’s service and her diagnosis of fibromyalgia. The examiner noted that the STRs document treatment for chest and chest wall pain with diagnosis of costochondritis, but that there is no evidence to support chronic chest wall pain associated with other symptoms are consistent with a diagnosis of fibromyalgia. The examiner stated that although STRs evidence that the Veteran presented with neck, back, and right shoulder pain, myalgias, pelvic pain, nausea, chest wall pain, dyspepsia, and headaches in-service, her symptoms were associated with specific diagnoses. The examiner also noted that there was no objective evidence found to support that these symptoms persisted throughout and beyond her service. The examiner stated that in each evaluation, the Veteran presented with chief complaints as individual symptoms that led to specific diagnoses for the symptoms which she presented and that there was no documentation found that the symptoms persisted. Furthermore, the examiner stated that there was no documentation found to support that different symptoms occurred as a cluster that could be associated with a diagnosis of fibromyalgia, and that the symptoms were not documented as being associated with widespread musculoskeletal pain, fatigue, and sleep disturbance as found in fibromyalgia. The examiner noted that the record does not provide evidence that during service and proximal to discharge that the Veteran experienced generalized pain, fatigue, and sleep disturbances, present for at least three months and not explained by any other medical disorder, which is the criteria for a diagnosis of fibromyalgia. The examiner stated that the symptoms noted during service did not meet the criteria for a diagnosis of fibromyalgia, and that no objective evidence could be found to support a nexus between the Veteran’s service and her diagnosis of fibromyalgia. Although the Veteran believes that her fibromyalgia is related to her service, the Veteran is not competent to opine that her fibromyalgia is due to an event, injury, or disease during service. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no competent evidence of record showing a possible link between the Veteran's current fibromyalgia and her service. Based upon the evidence of record, the Veteran's fibromyalgia did not manifest during service and the evidence fails to establish that her fibromyalgia is etiologically related to service. (Continued on the next page.) The preponderance of the evidence is against the Veteran's claim of entitlement to service connection for fibromyalgia. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.