Citation Nr: 21012258 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-25 952 DATE: March 3, 2021 ORDER Entitlement to service connection for muscle aches/pain is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. FINDING OF FACT The weight of competent and credible evidence of record is against finding that the Veteran has had a disability of muscle aches/ pain at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for muscle aches/pain are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1981 to November 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board of Veterans’ Appeals (Board) in February 2020 along with the issues of service connection for stomach disability and headaches which have been granted service connection and are no longer on appeal. In an August 2020 supplemental statement of the case, the regional office (RO) denied service connection for fibromyalgia and service connection for muscle aches (previously claimed as muscle pain). Entitlement to service connection for muscle aches/pain In the February 2020 Board remand, the Board directed that, following a record review for the claimed stomach, headache, fibromyalgia and muscle pain disabilities, the examiners were asked to provide a diagnosis that accounts for the Veteran’s present symptoms. With respect to muscle pain, the examiner was asked to specify if the claimed disability is separate and distinct from the Veteran’s claimed fibromyalgia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 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 Board concludes that the Veteran does not have a current diagnosis of muscle ache/pain and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). The April 2020 VA examiner found there was no separate muscle condition, but rather, the Veteran’s muscle pain is related to his fibromyalgia. Other evidence of record also does not suggest that the Veteran’s muscle aches and pains are distinct from his fibromyalgia. An October 2009 opinion from the Veteran’s treating physician indicates he had been treating the Veteran for conditions including muscle pain. The doctor indicated the Veteran’s disease is listed as fibromyalgia and he is not sure if it is fibromyalgia, but it had to be called something. Similarly, the Veteran’s pain management physician indicated in an October 2009 letter that he had been seeing the Veteran for complaints of generalized body pain and, while no objective findings were found when he was seen by multiple physicians, the Veteran was diagnosed with chronic fatigue syndrome and fibromyalgia. A March 2012 opinion from a treating physician mentions the Veteran is experiencing musculoskeletal symptoms that hurt all over such as muscle aches and arthralgias; however, it does not identify a diagnosis or indicate that one cannot be provided. Nor does it address whether these symptoms are related to the Veteran’s diagnosed fibromyalgia. Therefore, it is afforded little weight. It is unclear from the record whether the Veteran believes his muscle aches and pain are symptoms of his fibromyalgia or a distinct disability. The Veteran has described his widespread pain and a central nervous system disorder. In any case, the issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The record does not reflect a current disability of muscle aches/pain. Therefore, the first element of the test for service connection has not been met and the claim for service connection for muscle aches/pain must be denied. REASONS FOR REMAND Entitlement to service connection for fibromyalgia Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of fibromyalgia. The February 2020 Board remand directed the VA examiner to consider the Veteran’s lay statements in addition to buddy and lay statements from 2009 as well as opinions from the Veteran’s private physicians also in 2009 and 2010. The March 2020 VA examiner indicated she reviewed the VA e-folder and listed specific evidence under the evidence comments, including, amongst other records, an October 2019 statement from the Veteran’s mother and pain management from October 2009. The listed evidence does not reflect the examiner considered all of the evidence she was directed to consider by the prior remand. Nor does the rationale provided by the examiner suggest she considered the evidence specified in the prior remand. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from a VA examiner that addresses whether it is it at least as likely as not that the Veteran’s fibromyalgia was onset during or was caused by a disease or injury in service including the Veteran’s claim of having received experimental immunizations. The examiner must review the Veteran’s entire claims file and is directed to consider the Veteran’s lay statements, in addition to the submitted buddy and lay statements from November 2009 as well as the opinions from the Veteran’s private physicians. These include statements from the Veteran’s sister, mother, and two friends received in November 2009; the Veteran’s March 2009 statement in which he explains receiving shots while in service and his experience having massive headaches and abdominal pains that put him in and out of the hospital; his July 2009 statement that his conditions were brought about by neurological problems from active duty; his May 2010 statement that he was told he had depression in July 1982 and the physician’s desk reference of that year stated depression disease was a disease that was killing off the brain cells causing wide spread neurological pain and that is what he has which has caused pain all over his body; his hearing testimony from August 1995; his pain specialist’s letter from October 2009; his treating physician’s letter from October 2009; and his treating physician’s letter from March 2012. 2. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the veteran’s satisfaction, furnish the Veteran and his representative a supplemental statement of the case and afford them the opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli, 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.