Citation Nr: 21015816 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-02 605 DATE: March 18, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected fibromyalgia is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for bronchitis is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for right ear cholesteatoma is remanded. Entitlement to service connection for chronic sinusitis is remanded. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating for fibromyalgia. 2. The Veteran does not meet the Department of Veterans Affairs (VA) auditory threshold criteria for a right ear hearing loss disability for service connection purposes. 3. The preponderance of the evidence is against finding that the Veteran has a bronchitis disability that began during active service, or is otherwise related to an in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a right knee disability that began during active service, or is otherwise related to an in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran has a left knee disability that began during active service, or is otherwise related to an in-service event, injury, or disease. 6. The preponderance of the evidence is against finding that the Veteran has a bilateral shoulder disability that began during active service, or is otherwise related to an in-service event, injury, or disease. 7. The preponderance of the evidence is against finding that the Veteran has a low back disability that began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for service-connected fibromyalgia have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5025. 2. The criteria for service connection for right ear hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for bronchitis have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 4. The criteria for service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 5. The criteria for service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 6. The criteria for service connection for bilateral shoulder disabilities have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 7. The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1991, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) from July 2014 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in September 2020. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Increased Rating for Fibromyalgia Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran has asserted, including during his hearing before the undersigned, that the severity of his fibromyalgia warrants a higher disability rating. The Veteran’s fibromyalgia is rated as 40 percent disabling under Diagnostic Code 5025, which is the maximum schedular evaluation provided for fibromyalgia. 38 C.F.R. § 4.71a; see also Copeland v. McDonald, 27 Vet. App. 333, 336 (2015) (holding that disabilities specifically listed in the rating schedule may only be rated under the Diagnostic Codes which specifically pertain to them). Here, VA examinations in May 2014 and September 2016 indicated that the Veteran’s fibromyalgia is manifested by widespread musculoskeletal pain and stiffness, fatigue, sleep disturbances, depression, irritable bowel syndrome, and impaired concentration, which are symptoms contemplated by Diagnostic Code 5025 and the rating assigned. Id. As such, the criteria for a rating in excess of 40 percent for fibromyalgia have not been met, and the claim must be denied. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases such as arthritis and organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness, and (2) a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. There must also be objective indications of chronic disability, which 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). A MUCMI is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) functional gastrointestinal disorders (excluding structural gastrointestinal disease). The term MUCMI 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Right ear hearing loss. The Veteran asserts that he has a current right ear hearing loss disability as a result of his military service. Specifically, the Veteran asserts that right ear cholesteatoma surgery after military service resulted in hearing loss in that ear. After review of the evidence, however, the Board finds that the Veteran does not currently have a diagnosed hearing loss disability for service-connection purposes. Impaired hearing will be considered a disability for service connection purposes, when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded a VA audiological examination in May 2014. Examination of the right ear did not find thresholds over 40 decibels for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, or thresholds of 26 decibels or greater for at least three of these frequencies. Speech recognition scoring in the right ear was 96 percent. Private audiograms are not in significant conflict with the VA examination findings. Based on the foregoing, the Veteran has not met the auditory threshold criteria for hearing loss under 38 C.F.R. § 3.385. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The risk factor of in-service acoustic trauma is not germane in the absence of any resulting disability. Therefore, as the preponderance of the evidence is against a finding of right ear hearing loss for VA purposes, service connection is not warranted. Bronchitis. At a May 2014 VA examination the Veteran was diagnosed with recurrent acute bronchitis that he asserts is related to his Gulf War service. While the Veteran stated during his hearing before the undersigned that his symptoms began in service, both his service treatment records (STRs) and post-service medical history are negative for a chronic bronchitis disability until years after service. As the Veteran reported other ailments during service, and lung problems are the type that a reasonable person would report when in the military with access to healthcare, if the Veteran was experiencing respiratory problems during service the Board would expect that he would have reported these problems to medical professionals. Moreover, during the January 1991 separation examination, evaluation of the lungs and chest was normal. In a corresponding report of medical history, the Veteran specifically denied having had asthma, shortness of breath, pain in his chest, or a chronic cough. If any respiratory disability was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had the above symptoms at separation because a reasonable person would have interpreted the question to include symptoms of bronchitis. The Board finds the report of medical history at separation from service to be highly probative as it was done contemporaneous to service and for the purpose of identifying disability at that time. A bronchitis disability is not shown in the medical record until the time of his service connection claim. As bronchitis is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of bronchitis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation where he denied respiratory symptoms. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Further, the Board notes that while the Veteran reported a diagnosis of bronchitis in 1995 during his hearing before the undersigned, he reported a 2010 diagnosis to the May 2014 VA examiner. The Veteran has offered the theory, however, that his bronchitis is related to his service in Southwest Asia and environmental exposures therein under 38 C.F.R. § 3.317, and a VA examination was afforded in May 2014 with an addendum opinion the following July 2014. After review of the claims file, including the May 2014 examination, the July 2014 examiner opined that, since the Veteran was discharged from service in 1991 and his acute bronchitis did not begin until 2010, it was less likely than not that any possible exposures in service would have caused bronchitis nineteen years later, as acute bronchitis is an infectious process most commonly caused by viruses which would have manifested itself while in service or soon afterwards. The Board finds the examiner’s opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record, to include an absence in the medical record of bronchitis until many years after service. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. For the above reasons, the preponderance of the evidence is against the claim and service connection must be denied. Bilateral knee, bilateral shoulder, and low back disabilities. The Veteran asserts that he has knee, shoulder and low back disabilities that are related to his military service. As an initial matter, private medical records submitted by the Veteran after his hearing before the undersigned reflect a history of simply mild-to-moderate joint pain and general arthralgia during the appeal. As discussed above, the Veteran is already service connected for fibromyalgia. The record also reflects a history of bilateral meniscus conditions, a torn labrum of the left shoulder, and a lumbar disc bulge and herniation. Regarding the nature of the diagnosed back, knee, and shoulder disabilities, the record is absent probative medical evidence of any in-service event, injury, or disease for service connection purposes. The Veteran’s STRs show no complaints, diagnosis, or treatment related to any knee, shoulder or back disability, despite his testimony to the contrary during his hearing before the undersigned that he went to sick call for these conditions. There is no indication that the STRs are incomplete. As the Veteran reported other ailments during service, and musculoskeletal problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his back, knees, or shoulders during service the Board would expect that he would have reported these problems to medical professionals. Moreover, during his January 1991 separation examination, evaluation of the spine and extremitates was normal. In a corresponding report of medical history, the Veteran specifically denied having had swollen or painful joints, a painful or “trick” shoulder, a “trick” or locked knee, or recurrent back pain. If musculoskeletal pain was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had pain in any particular joint at separation because a reasonable person would have interpreted the question to include symptoms of knee, shoulder, or back pain. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service, which the Board finds to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Post-service, the medical record is absent complaints of joint pain until the time of his service connection claims, many years after service. For the above reasons, the preponderance of the evidence is against the claims, and service connection for shoulder, knee and low back disabilities is denied. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim for service connection. Generally, a VA medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, while the evidence may suggest back, knee, and shoulder disabilities separate and distinct from the joint and muscle pain associated with his service-connected fibromyalgia, the second and third McClendon criteria are not met. While the Veteran may assert that his disabilities are nevertheless associated with his Persian Gulf service, diagnosed disabilities that are attributed to a known clinical causation cannot be considered an undiagnosed illness for the purposes of 38 C.F.R. § 3.317, and the Veteran is already service-connected for a MUCMI that manifests as joint pain – his fibromyalgia. As to all of the Veteran’s service connection claims being denied above, the Board has considered his statements, to include his assertions that he has hearing loss, bronchitis, and musculoskeletal disabilities (separate from fibromyalgia) that are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., hearing loss, respiratory distress, and joint pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the findings of trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran’s remaining claims for service connection for right ear cholesteatoma and chronic sinusitis must be remanded for additional development. The Veteran asserts that he has a right ear condition and chronic sinusitis that are related to service. While his service treatment records are negative for complaints or treatment for right ear or sinusitis conditions, he asserts that these purported disabilities are due to environmental exposures during his Persian Gulf service. See 38 C.F.R. § 3.317. The Board notes that it is unclear if the Veteran has a current ear disability for service connection purposes. The record reflects that the Veteran underwent treatment for a right ear cholesteatoma removal in 1995 and eventually underwent a surgical excision in 1995 and again in 1997. While a VA ear conditions disability benefits questionnaire (DBQ) completed by a private physician, Dr. Y.K., in January 2014 notes the Veteran’s history of cholesteatoma, Dr. Y.K. specifically noted “no sign of recurrence” of his previously excised cholesteatoma. However, while physical examination of the inner and outer ear at the time was normal, the DBQ does note a recurrent serous discharge from the Veteran’s right ear. Private treatment records also note a diagnosis of chronic sinusitis, and his STRs contain a January 1990 dental health questionnaire that note the Veteran reporting a history of sinus problems. Further, while the Veteran’s VA audiological examination noted in the Board’s denial of his hearing loss claim above did not indicate hearing loss for VA purposes, the examination notes the Veteran asserting that both a right ear condition and chronic sinusitis are related to his Gulf War service and exposures therein. While this examiner recommended that additional VA examinations should be afforded to address the Veteran’s contentions, including a separate ear conditions examination, no additional examinations are of record, and the Veteran’s private DBQ submitted in January 2014 contains no etiological opinion for the Veteran’s claimed ear condition and sinusitis. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA sinusitis examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current sinusitis disability onset during service or is otherwise related to an in-service injury, event, or disease, to include environmental exposures in Southwest Asia. In offering the opinion, the Board notes for the examiner that the Veteran is separately service-connected for disabilities due to his Southwest Asia service and environmental exposures therein. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA ear conditions examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right ear onset during service or is otherwise related to an in-service injury, event, or disease, to include environmental exposures in Southwest Asia. In offering the opinion, the Board notes for the examiner that the Veteran is separately service-connected for disabilities due to his Southwest Asia service and environmental exposures therein. The examiner is also asked to offer an opinion as to whether it is as likely as not that the Veteran has a current disability of the right ear that was (a) caused, or (b) aggravated (increased in severity beyond normal progression) by sinusitis. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.