Citation Nr: 21023053 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-29 517 DATE: April 20, 2021 ORDER Entitlement to service connection for a muscle and joint pain disorder with fatigue, to include fibromyalgia, is denied. FINDING OF FACT During the appeal period, the Veteran does not have any additional diagnosis of a muscle and joint pain disorder with fatigue, to include fibromyalgia. CONCLUSION OF LAW The criteria for entitlement to service connection for muscle and joint pain with fatigue have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 to July 1977, and from February 1978 to September 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in September 2015, June 2017, August 2019, and September 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for muscle and joint pain Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). In addition, service connection is granted for Persian Gulf Veterans with a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). A Persian Gulf Veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness is a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). Objective indications of chronic disability 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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). A medically unexplained chronic multisymptom illnesses is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). With claims for service connection under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of direct service connection, VA cannot impose a medical nexus requirement. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Gutierrez, 19 Vet. App. at 9-10. Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (August 3, 1998). Nevertheless, consideration must be given to service connection on a direct basis for that diagnosis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To determine whether the undiagnosed illness is manifest to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The Board must explain its selection of analogous Diagnostic Code. Stankevich, 19 Vet. App. at 472. The Veteran alleges that the muscle and joint pain with fatigue began during service and has existed since that time and it is related to an in-service motor vehicle accident. On the October 2012 VA Form 9, the Veteran asserted that their service treatment records (STRs) show evidence of muscle and joint pain, a leg condition, and chronic fatigue syndrome. In an October 2010 statement, the Veteran asserted that they have chronic pain in the knees, legs, shoulder, neck, and back, and that it interferes with sleep and affects their mood, appetite, and quality of life. In a December 2010 statement, the Veteran’s spouse stated that the Veteran has chronic pain every day, that they are unable to perform household chores, and that it impacts their sleep, depression, and quality of life. The Board finds that there is not any additional muscle or joint disability with fatigue. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Initially, the Board notes that the Veteran is service-connected for posttraumatic stress disorder (PTSD) with substance use disorders, cervical spondylosis with arthritis (neck disability), bilateral upper extremity radiculopathy associated with the neck disability, residuals of an injury to the left shoulder, bilateral knee arthropathy, migraine headaches, and iron deficiency anemia. On a February 2016 VA Muscle Injuries Disability Benefits Questionnaire (DBQ), a VA examiner indicated there was no diagnosis of a muscle injury. On a February 2016 VA Shoulder and Arm Conditions DBQ, the examiner did note a diagnosis of right shoulder impingement syndrome, which the Veteran asserted was related to the 1997 motor vehicle accident; however, a claim for a right shoulder condition was denied in an August 2006 rating decision due to normal findings during an April 2006 examination, and is not on appeal. On a March 2016 Cervical Spine DBQ, the examiner did find cervical muscle spasms and myofascial pain syndrome; however, these are rated with the service-connected neck disability. On a March 2016 Fibromyalgia DBQ, the examiner found a diagnosis of fibromyalgia, but stated that the Veteran should seek a rheumatologist for treatment. In a May 2016 VA medical opinion, the examiner opined that it is less likely than not that the Veteran had bilateral leg pain and other muscle and joint pain other than the neck, bilateral knee, and left shoulder disabilities that are already service-connected. On an August 2017 VA Gulf War Syndrome DBQ, the examiner found that while the Veteran reported joint pain and fatigue, the joint pain is orthopedic in nature and related to the service-connected neck, left shoulder, and knee disabilities, while the fatigue is accounted for with the service-connected depression and polysubstance abuse. The examiner opined that these symptoms are not an undiagnosed illness, or medically unexplained chronic multi-symptom illness of unknown etiology. The examiner also addressed the March 2016 finding of fibromyalgia, stating that the condition had not been confirmed by a rheumatologist. The examiner stated that fibromyalgia was beyond the scope of the Gulf War Syndrome DBQ, and that as the symptoms of muscle pain and hypersensitivity of the skin had not been fully evaluated, the condition was considered an undiagnosed illness at the time, but that possible tests to establish a diagnosis would need to be done. August 2017 army hospital records indicate that the rheumatoid factor was negative. On a February 2019 Environmental Exposure Gulf War DBQ, the examiner noted the March 2016 diagnosis of fibromyalgia, but stated that a conclusive diagnosis was not established, and that labs showed normal findings. The examiner also found degenerative changes in the cervical spine, lumbar spine, knees and shoulders which would contribute to pain in the joints, and that the Veteran is already service-connected for the neck, left shoulder, bilateral upper radiculopathy, and bilateral knee disabilities. A lumbar spine disorder claim was denied in a July 2016 rating decision and is not on appeal. During the examination the Veteran reported chronic headaches, but the Veteran is already service-connected for migraine headaches. And the examiner opined that the sleep impairment and fatigue are likely related to the service-connected PTSD. On a February 2019 Non-Degenerative Arthritis DBQ, the examiner stated that the Veteran does not have a current diagnosis associated with any claimed condition, and that the records are silent for a diagnosis of inflammatory or non-degenerative arthritis. The examiner explained that the reported joint symptoms would not be attributed to these conditions, and that the records are noted for degenerative arthritis involving several joints. The examiner noted that on lab testing, the Sed rate, ANA and rheumatoid factor are normal. On a February 2019 Muscle Injuries DBQ, the examiner found no diagnosis of a muscle injury. And in a February 2019 VA medical opinion, the examiner stated that a conclusive diagnosis of fibromyalgia had not been established as the Veteran had not been evaluated by rheumatology. The examiner explained that the service-connected neck, bilateral upper extremity radiculopathy, left shoulder, and bilateral knee disabilities would contribute to the pain in those joints. They stated that the chronic headaches are related to the service-connected migraines, and that the service-connected PTSD contributes to the sleep impairment and fatigue symptoms. The examiner also noted that the x-rays of the hips were normal. On a February 2020 Fibromyalgia DBQ, the examiner found no diagnosis of fibromyalgia, based on the normal sed rate, C-reactive protein, and low hemoglobin which is associated with anemia and fatigue, and the service-connected musculoskeletal joint pain. On a February 2020 Chronic Fatigue Syndrome DBQ, the examiner found that there was no diagnosis of chronic fatigue syndrome, and that the service-connected anemia and depression can cause fatigue. The examiner noted that the symptoms of fatigue are not an undiagnosed illness or medically unexplained chronic multi symptoms illness of unknown etiology. The examiner also referenced the service-connected neck with bilateral upper extremity radiculopathy, bilateral knee, and left shoulder disabilities. And in a February 2020 Gulf War Syndrome DBQ, the examiner noted that there were no illnesses with no etiology, no additional signs that may represent undiagnosed illnesses, or diagnosed medically unexplained chronic multi system issues. In a February 2021 VA medical opinion, the examiner stated that there were no signs of symptoms that mandate a diagnosis of fibromyalgia. The examiner explained that the Veteran has conditions that cause symptoms that can be part of fibromyalgia, including anemia, osteoarthritis in the knees and shoulder, lower back pain from a motor vehicle accident, migraines, and PTSD, and that these conditions confound the symptoms claimed to be due to fibromyalgia. The examiner also stated that there is no diagnosis of unspecified joint pain, and that this was not an undiagnosed illness, a diagnoseable but medically unexplained chronic multi-symptom illness of unknown multi-symptom illness of unknown etiology, a diagnoseable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology of diagnosis. The Board notes that finding pain resulting in functional impairment, even if no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Additionally, the holding in Saunders is not limited to pain alone, but rather the definition of disability in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) and includes any condition that results in functional impairment of earning capacity. However, pyramiding, the evaluation of the same disability (or the same manifestation of a disability) under different diagnostic codes, is to be avoided when rating an appellant’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Therefore, it would be pyramiding to consider symptoms such as joint and muscle pain with fatigue for a disability separate from the service-connected neck, bilateral upper extremity radiculopathy, left shoulder, bilateral knee, anemia, migraines, and PTSD. While the Veteran can be separately service-connected for different acquired disorders, the overlapping symptoms for each separate disorder cannot be rated more than once. In the Veteran’s case, however, the probative evidence of record does not show a current clinical diagnosis of an additional joint and muscle pain with fatigue disability. Throughout the appeal period, there has been no confirmed diagnosis of fibromyalgia, and VA examiners have consistently attributed the Veteran’s claimed symptoms to service-connected disabilities, as well as disabilities previously denied service connection and not presently on appeal. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current diagnosis of the claimed disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (Continued on the next page)   Accordingly, service connection is denied. In reaching this decision 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.