Citation Nr: 21014951 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-44 190 DATE: March 16, 2021 ORDER Entitlement to service connection for rheumatoid arthritis is granted. Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for bilateral trochanteric (hip) bursitis is granted. Entitlement to service connection for gout, bilateral feet is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current rheumatoid arthritis is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s current fibromyalgia is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hip bursitis is related to service. 4. The evidence is at least evenly balanced as to whether the Veteran’s current gout of the feet is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for generalized arthritis, diagnosed as rheumatoid arthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral trochanteric bursitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for gout of the feet have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to April 1986. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied entitlement to service connection for generalized arthritis, gout of the bilateral feet, bilateral trochanteric bursitis, and fibromyalgia. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacated, in part, the September 2019 Board decision, and remanded the matter to the claims for generalized arthritis, gout of the bilateral feet, bilateral trochanteric bursitis, and fibromyalgia to the Board for action consistent with the terms of the JMPR. Service Connection 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 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). 1. Arthritis / Fibromyalgia / Hips / Feet In this case, the evidence of record indicates arthritis, joint, hips, and feet disabilities. Specifically, post-service treatment records dated in November 2009, August 2011, September 2011, and April 2012 show treatment and diagnoses of rheumatoid arthritis, fibromyalgia, shoulder joint pain, knee joint pain, arthralgia in multiple sites, bilateral trochanteric bursitis, foot pain, and gout. Consequently, the first element of service connection has been met with regard to each claim. The Veteran’s service treatment records (STRs) indicate complaints and treatment for pain in chest, back, shoulders, neck, bilateral foot, elbow, and knees. Treatment for muscle strain of the back and neck, muscle bruises, and costochondral joint are also noted. In a December 1991 disability application (VA Form 21-526), the Veteran reported that during service in 1984, the arthritis began throughout her entire body, but mostly in her hands, legs, and feet. In a February 1992 lay statement, C.W. reported that the Veteran has suffered with aches and pains with her hands, arms, and fingers, which began in 1983. In an August 2006 letter, private Dr. A.G. reported that the Veteran has polyarthralgia, generalized arthralgia and myalgia, fatigue with prominent back, hip and knee pain. A recent evaluation did show degenerative joint and disk disease in the cervical spine. Dr. A.G. concluded that the Veteran’s symptoms began in the 1980s but worsened over the last 3 months. Dr. A.G. noted that she has pain in the shoulders, neck, upper back, legs, feet, knees and hands. A November 2011 VA examination report shows that the Veteran reported that the onset of her pain symptoms was in service and symptoms have continued since service. Here, the evidence contained in the STRs, private Dr. A.G.’s letter, in addition to the competent and credible lay statements from the Veteran and C.W., are sufficient to meet the second element of the service connection with respect to each claim. In a May 2011 letter, private Dr. N.M. reported that the Veteran has diagnoses of rheumatoid arthritis and fibromyalgia. Dr. N.M. opined that it is possible that the Veteran carried these diagnoses for which she is currently being treated while she was active duty military. Dr. N.M. noted that the Veteran’s symptoms began in 1980s when the Veteran was active duty in Fairbanks, Alaska. In November 2011, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s rheumatoid arthritis was not incurred in or caused by the pain left elbow, shoulder, neck, pain, knee or foot that was shown in service. The examiner’s rationale was the April 4, 1985 emergency room visit for acute left elbow pain, top of shoulder and back of neck and back pain that occurred s/p fall with normal left elbow and C-Spine x-ray and diagnosis muscle bruises. The examiner noted that the entire service treatment reports is otherwise silent for diagnosis, management or treatment of rheumatoid arthritis, which was diagnosed five years post-service in 1991. The examiner also opined that the Veteran’s fibromyalgia was not incurred in or caused by pain in left elbow, top of shoulder, back of neck, back pain, bilateral knee pain, and bilateral foot pain that occurred in-service. The examiner’s rationale was that the entire service treatment reports are silent for diagnosis, management or treatment of fibromyalgia. The examiner noted the fibromyalgia was diagnosed 23 years post-service in 2009. The examiner opined that the Veteran’s bilateral trochanteric bursitis is part and parcel of fibromyalgia. The examiner’s rationale was that the STRs is silent for diagnosis, management or treatment of bilateral trochanteric bursitis. The examiner noted the condition was diagnosed 24 yrs post-service in 2010. The examiner further opined that gout of the bilateral feet was not caused by the claimed in-service injury, event or illness. The examiner’s rationale was that despite subjective complaints, there is no objective evidence of gout feet/toes. The examiner noted the gout left ankle was diagnosed 21 years post-service in 2007, and STRS and post-service medical records are silent for gout feet/toes. In this case, as indicated by the parties to the JMPR, the November 2011 VA opinion that the Veteran’s rheumatoid arthritis, fibromyalgia, bilateral trochanteric bursitis, and gout of the bilateral feet are not related to service is of little, if any, probative value. Specifically, the VA examiner failed to consider competent and credible evidence of the Veteran’s report of the onset of her symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence ). Given the lack of an adequate medical opinion, there is no contrary evidence of record. With respect to the rheumatoid arthritis and fibromyalgia issues, although Dr. N.M. did not provide a detailed rationale for her May 2011 opinion, she nonetheless concluded based upon an examination of the Veteran and medical evidence, the current rheumatoid arthritis and fibromyalgia could be related to her active military service. The opinion is thus entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner did not explicitly lay out the examiner’s journey from the facts to a conclusion, did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, although “possibly” terminology was used, to the extent that this did not meet the at least as likely as not standard reflected in 38 U.S.C. § 5107 (b), it is nevertheless evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as evidence of whether the disorder was incurred in service). There is no contrary medical opinion in the evidence of record and no other probative evidence of record which attributes the Veteran’s rheumatoid arthritis and fibromyalgia to any other cause. With regard to all claims, service connection does not require that a current disability be related to a particular exposure or any other causal agent in service, it only requires that a current disability had its onset in service. 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). See also Dallas v. McDonough, No. 20-1215, 2021 U.S. App. Claims LEXIS 235, *4 (Feb. 18, 2021) (mem dec, Falvey, J.) (noting that the question for the Board in a direct service connection case is “not whether military service caused the Veteran’s disability but ‘whether the Veteran has a current disability that began during service’”); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Accordingly, in light of the competent and credible evidence of continuous symptoms of the Veteran’s rheumatoid arthritis, fibromyalgia, bilateral trochanteric bursitis, and gout of the bilateral feet in the years since service, C.W. lay statements, Dr. A.G. private letter, May 2011 private opinion, the findings of the parties to the JMPR, and resolving reasonable doubt in the Veteran’s favor, service connection for rheumatoid arthritis, fibromyalgia, bilateral trochanteric bursitis, and gout of the feet is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.