Citation Nr: 21021019 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-21 638 DATE: April 9, 2021 ORDER Entitlement to service connection for muscle spasms and pain, to include as due to an undiagnosed illness or exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT The Veteran’s claimed muscle spasms and pain were not shown to be chronic in service and are not otherwise etiologically related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune and due to an undiagnosed illness. CONCLUSION OF LAW The criteria for service connection for muscle spasms and pain, to include as due to an undiagnosed illness or exposure to contaminated water at Camp Lejeune, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1980 to September 1984, from December 1984 to December 1988, and from September 1989 to January 1997, to include service in Camp Lejeune, North Carolina and Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in June 2018 and June 2020 to the RO to schedule the Veteran for a new examination to determine the etiology of his disability and to evaluate all possible theories of entitlement and to obtain the Veteran’s complete personnel records. Service personnel records have been associated with the record and an etiology opinion was obtained in August 2020 and an addendum opinion was obtained in January 2021. In January 2021, the RO issued a Supplemental Statement of the Case again denying presumptive and direct service connection for the Veteran’s claimed muscle spasms and pain. The Board finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter now returns to the Board. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Service connection may also be established for a chronic disability resulting from an undiagnosed illness that became manifest either during active 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71,382 (Oct. 17, 2016). The term "Persian Gulf veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or 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, or menstrual disorders. 38 C.F.R. § 3.317(b). To establish presumption for exposure to contaminated waters at Camp Lejeune, a veteran that served more than thirty (30) days (consecutive or non-consecutive) at Camp Lejeune between August 1, 1953, and December 31, 1987 is presumed to have been exposed to contaminants in the water supply, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(7)(iii). If an individual described in 38 C.F.R. § 3.307(a)(7)(iii) develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(7)(iv). The RO conceded the Veteran's exposure to contaminated water at Camp Lejeune in an April 2020 supplemental statement of the case. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for muscle spasms and pain is denied. The Veteran contends that he experiences muscle spasms and pain which is related to his Gulf War service. In the alternative, the Veteran further contends that his disability may also be causally related to contaminated waters at Camp Lejeune. See March 2011 Claim; April 2017 Supplemental Claim. It is conceded that the Veteran served in Southwest Asia Theatre and Camp Lejeune, North Carolina. See DD Form 214 and Military Personnel Records. In the Veteran's service treatment records, there was a November 1987 note, where the examiner stated that the Veteran had a gluteus maximus spasms resulting in a strain in his right buttocks after doing a squatting exercise. Post-service treatment records reflect the Veteran’s complaints of a muscle spasms in his left buttocks for three weeks in January 2012, which the examiner noted that it may be secondary to muscle strain and complaints of a bilateral shoulder spasms in August 2019. The Veteran is presumed to have been exposed to contaminated water at Camp Lejeune; however, presumptive service connection under 38 C.F.R. § 3.309(f) is not warranted as muscle spasms and pain is not an enumerated disability encompassed by the regulation. The Veteran's muscle spasms and pain were not symptomatic or diagnosed during active service. The record shows that the Veteran complained of muscle spasms in November 1987 due to a strain from exercise. Furthermore, the muscle spasms in his left buttocks noted in January 2012 was also opined to be from a muscle strain which was approximately 15 years after the separation from active duty. Thus, the Veteran’s muscle spasms and pain related to exposure to contaminated waters did not have its onset during active service. The Board notes that the record contains multiple medical opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. The Veteran was afforded a VA examination to determine direct causation of contaminated water exposure in July 2019. The examiner opined that the claimed condition is not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner reasoned that there is no formal diagnosis that would explain the Veteran’s complaints and explained that chronic fatigue syndrome (CFS), also known as myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS), is an illness of uncertain cause. The examiner noted that while underlying objective findings involving the central and autonomic nervous systems, the immune system, and energy metabolism have been described, these objective abnormalities have not yet led to a clear understanding of pathophysiology or to a diagnostic test of adequate sensitivity and specificity. The examiner further noted that the condition has long been recognized and many different terms have been used to describe it (e.g., DaCosta's syndrome, effort syndrome, soldier's heart, neurasthenia, myalgic encephalitis/encephalomyelitis, Iceland disease, Akureyri disease, Royal Free disease, and chronic fatigue and immune dysfunction syndrome). The examiner noted that there are multiple case definitions for CFS, that these have changed over time the Institute of Medicine (IOM) diagnostic criteria focus on the most specific features of the disease and symptoms should be present for at least six months and have moderate, substantial, or severe intensity at least one-half of the time as with previous definitions. The examiner noted that, in addition to fatigue, other criteria include: post-exertional malaise, unrefreshing sleep, cognitive impairment, and orthostatic-related symptoms. While fatigue is a very common presenting complaint in primary care practice, patients meeting formal case definitions of CFS are unusual. The examiner noted that the prevalence of CFS is uncertain, in part due to difficulties in establishing the diagnosis; however, using the clinical case definition allows for some estimates. The examiner noted that, in one study of 1000 consecutive patients in a primary care clinic, for example, 8.5 percent had debilitating fatigue of at least six months' duration without apparent cause; however, only 15 percent of these patients satisfied the clinical definition for CFS. The examiner concluded that after reviewing the "ATSDR Assessment of the Evidence for the Drinking Water Contaminants at Camp Lejeune and Specific Cancers and Other Diseases", published in 2017, and the general medical literature, there are no studies cited that document muscle spasms as a sequelae to exposure to Camp Lejeune contaminated water. This opinion have been based upon a thorough review of the Veteran’s claims file, medical records, and an interview with the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board affords this opinion great probative weight. In an August 2019 Muscle Injury VA examination, the examiner opined that review of the medical records documents that the Veteran reports that he works out regularly. The examiner noted that it is probable that his complaints of muscle pain are related to muscle strain resulting from his work outs and that the records also document that the Veteran complains of back, shoulder, knee and hip pain. The examiner noted that the Veteran has evidence of osteoarthritis in these joints and it is possible that the Veteran may be experiencing some referred pain. This opinion have been based upon a thorough review of the Veteran’s claims file, medical records, and an interview with the Veteran. See Nieves-Rodriguez v. Peake, supra. The Board affords this opinion great probative weight. In an August 2019 CFS VA examination, the examiner opined that the Veteran does not meet the criteria for CFS. The examiner reasoned that there are multiple potential causes of fatigue including obstructive sleep apnea, insomnia, anemia, depression and others. The examiner noted that a review of the medical records does not indicate that the Veteran has complained of fatigue to his primary care physician at any of his visits in the past 12 months and there is no evidence in the medical records that a problem of fatigue has been reported or documented. This opinion have been based upon a thorough review of the Veteran’s claims file, medical records, and an interview with the Veteran. See Nieves-Rodriguez v. Peake, supra. The Board affords this opinion great probative weight. In an August 2020 VA Gulf War examination, the examiner tested for fibromyalgia and chronic fatigue syndrome and the physical exam was deemed normal. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's muscle spasms and pain is a disease with a clear and specific etiology and diagnosis. The examiner explained that the Veteran’s complaints of muscle spasms and pain began in 1987 when he had trauma to his right buttocks for five days after he was doing squatting exercises lifting 683 pounds, that he lost his balance and felt some muscle tear on upper buttocks, and that he started getting sharp pain to his right buttocks and was diagnosis with gluteus maximus muscle spasms and treated with Motrin and Parafon Forte, heat and rest. The examiner noted that the Veteran’s injury was acute only and there was no evidence of chronicity and that he had complaints of muscle spasms in left buttocks for three weeks and treatment with Flexeril in 2012. It is in the examiner’s opinion that the Veteran’s diagnosis is less likely related to his service in Southwest Asia. In the January 2021 addendum opinion, the VA examiner opined that the Veteran does not have a current disability pattern associated with the claimed muscle spasms and pain and that it is less likely than not that the claimed muscle spasms and pain is related to an exposure event experienced in Southwest Asia during the Gulf War. The examiner reasoned that the Veteran's complaint of muscle spasms and pain began in 1987 when he had trauma to his right buttocks for five days after he was doing squatting exercises lifting 683 pounds, that he lost his balance and felt a muscle tear in his upper buttocks and that he started getting sharp pain to his right buttocks and was diagnosed with gluteus maximus muscle spasms and treated with Motrin and Parafon Forte, heat and rest. The examiner found that there is insufficient objective evidence of continuity of treatment and care until 2012 when the Veteran had complaints of muscle spasms in his left buttocks for three weeks and treatment with Flexeril. The examiner noted that pain and spasms are subjective only with no spasms reported on day of the examination and that a current disability pattern associated with the claimed condition could not be confirmed and therefore, no nexus could be established. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed and the opinion contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, the August 2020 opinion and January 2021 opinion are of great probative value. Regarding the presence of a current disability, the Veteran's clinical records do not show a diagnosis of a present disability associated with muscle spasms and pain. The January 2021 VA examiner specifically found that the Veteran’s complaints of muscle spams and pain were subjective only and that no nexus to service could be established. In addition, the previous VA examiners found that the Veteran did not experience fibromyalgia, CFS and/or an undiagnosed illness related to his Gulf War service. The July 2019 VA examiner found that the Veteran’s claimed muscle spasms and pain were not related to his exposure to Camp Lejeune contaminated water. There is no contrary opinion of record. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed muscle spasms and pain and acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s statements are of low probative value. (Continued on the next page)   Thus, the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for muscle spasms and pain. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.