Citation Nr: 21023055 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-01 092 DATE: April 20, 2021 ORDER Entitlement to service connection for a chronic undiagnosed illness or a medically unexplained multi-symptom illness, claimed as fibromyalgia, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had any chronic undiagnosed illness or a medically unexplained multi-symptom illness at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic undiagnosed illness or a medically unexplained multi-symptom illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to July 1994 with confirmed service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the case for additional development. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for a chronic undiagnosed illness or a medically unexplained multi-symptom illness, to include fibromyalgia, is denied. The Veteran asserts that he has fibromyalgia and/or a chronic undiagnosed illness caused by Gulf War environmental exposures. The Veteran has reported that the symptoms of his illness consist of hiatal hernia, muscle spasms, pain, burning sensations, vibration in his legs, sleeping disturbances, poor concentration, breathing difficulties, and a possible psychiatric condition. The Board concludes that the Veteran does not have a chronic undiagnosed illness or medically unexplained multi-symptom illness, to include fibromyalgia, due to Gulf War exposure 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). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Among the requirements for service connection for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War are that there are objective indications of a qualifying chronic disability, which means a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (i.e., chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness specified by the Secretary), or any diagnosed illness specified by the Secretary. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 68 Fed. Reg. 34541 (June 10, 2003). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to fatigue, signs and symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs and symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The illness must become 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, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2021. Id. Further, by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Id. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification, and there must be a minimum of a 6-month period of chronicity. Id. Additionally, there must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War. Id. 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. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998); 63 Fed. Reg. 56,703 (1998). Here, the preponderance of the evidence weighs against finding that the Veteran has an undiagnosed illness or medically unexplained multi-symptom illness, including fibromyalgia, due to his Gulf War service. Initially, the Board notes that the Veteran’s hiatal hernial with reflux esophagitis, lumbar degenerative joint disease with myofascial dysfunction, and arterial hypertension have been determined to be service connected by the RO. The Veteran’s service treatment records show no reports of or treatment for any of the symptoms he asserts are representative of fibromyalgia or a chronic undiagnosed illness, other than those conditions that have already been deemed related to service. Post-service, an April 1999 employment examination described the Veteran as a healthy male. At a private medical evaluation in June 2011, the Veteran complained of diffuse muscle pains, including in the upper body and thighs, which he reported began in September 2004. He described feeling slightly out of breath during episodes of chest pain. Since 2004, he has also suffered from headaches and a feeling of pressure in the head. He reported difficulty sleeping due to pain, with daytime fatigue. The examiner concluded that the Veteran did not have fibromyalgia and also ruled out inflammation or rheumatic ailments as a cause of the Veteran's reported muscle pain. The examiner also diagnosed arterial hypertension, but no other cardiac or respiratory disability. In November 2013 the Veteran was provided a VA examination concerning this claim and whether his symptoms were related to Gulf War exposure. The Veteran reported that he was in good health until September 2004, when he began experiencing chest spasms and heart palpitations that he thought were a heart attack; however, following an extensive work-up, the only condition diagnosed was esophagitis. After his discharge from the hospital, the Veteran started experiencing a sensation of vibrations in his legs, a burning sensation in his upper abdomen through his chest and back, fatigue, difficulty sleeping, difficulty concentrating, and back pain and muscle spasms. Within the past year, he began experiencing foot and ankle pain. The VA examiner noted that all the Veteran's reported symptoms, including fatigue, sleep disturbances, nerve problems, and difficulty concentrating began twelve years after the Veteran's service in southwest Asia and the examiner opined that these symptoms were less likely than not caused by or related to Gulf War environmental exposure. The examiner concluded that the Veteran's symptoms of back pain, muscle spasms, and sleep disturbances due to back pain were more likely than not related to a diseases with a clear and specific etiology and diagnosis, specifically lumbar degenerative joint disease with myofascial dysfunction and developmental scoliosis of the thoracolumbar spine, and less likely than not caused by or related to Gulf War environmental exposure. The examiner concluded that the Veteran's epigastric and chest pain, chest muscle spasms, and difficulty breathing during those spasms are more likely than not related to a disease with a clear and specific etiology and diagnosis, specifically hiatal hernia and laxity of the lower esophageal sphincter, and less likely than not caused by or related to Gulf War environmental exposure. The examiner concluded that the Veteran's foot and ankle pain were more likely than not related to diseases with a clear and specific etiology and diagnosis, specifically bilateral dorsal calcaneal bone spurs and bilateral ankle tendonitis, and less likely than not caused by or related to Gulf War environmental exposure. The examiner found no objective evidence that the Veteran had chronic fatigue syndrome or fibromyalgia. Regarding the Veteran’s reported sensation of vibration in the legs, nerve issues, and shakes, the examiner remarked: “There is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic bilateral leg disorder or its residuals.” “Veteran has claimed a disability pattern of (sensation of vibration from legs into trunk, shakes, nerve issues), that meets TL10-01 criteria for a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. (No opinion allowed)” The examiner’s opinion that the Veteran’s disability pattern of sensation of vibration from legs into trunk, shakes, and nerve issues meets the criteria for a diagnosable but medical unexplained chronic multi-symptom illness while also noting that there was no objective evidence of any peripheral nerve condition or fibromyalgia appears to be contradictory and therefore the Board remanded the matter for clarification. A July 2019 VA Mental Disorders examiner concluded that the Veteran has no current mental disorder. The Veteran denied having any symptoms of mental health problems, although he reported a couple of panic attacks in 2004 associated with chest spasms that have not recurred and occasional sleep disturbances, which the examiner attributed to the Veteran's obstructive sleep apnea. A July 2019 VA Respiratory Conditions examiner concluded that the Veteran had no current respiratory disability. The Veteran had a normal examination, normal chest CT scan, and normal pulmonary function tests. The pulmonary function test showed a restrictive pattern secondary to obesity and not to a medical condition. The examiner opined that the Veteran's subjective complaints of fatigue and feeling like he has to work hard to take a breath are due to natural deconditioning, obesity, and aging. A July 2019 VA Sleep Apnea examiner diagnosed the Veteran with obstructive sleep apnea. The examiner concluded that the Veteran's symptoms of fatigue, memory problems, difficulty concentrating, and snoring are due to his obstructive sleep apnea, a disease with a clear and specific etiology and diagnosis, and were not caused by or related to Gulf War environmental exposure. A July 2019 VA Fibromyalgia examiner concluded that the Veteran did not have any past or current diagnosis of fibromyalgia. The examiner explained that the Veteran does not meet the criteria for fibromyalgia as defined by the American College of Rheumatology. He stated that the Veteran's complaints of muscle spasms, muscle pain, and burning sensation and vibration in the lower extremities are due to a disease with a clear and specific etiology and diagnosis- muscle spasms with paresthesia- and were not caused by or related to Gulf War environmental exposure. A July 2019 VA Gulf War examiner concluded that the Veteran did not have any undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness and that all of the Veteran's symptoms were due to disabilities with a clear and specific etiology and diagnosis. The Veteran has not presented any medical evidence that he has been diagnosed with a medically unexplained chronic multi-symptom illness, including chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome. Although the Veteran has claimed that he was diagnosed with fibromyalgia by VA, a review of the Veteran's VA outpatient treatment records does not show such a diagnosis. A November 2017 VA treatment note includes the statement, “Male reports fibromyalgia symptoms.” Another treatment note in May 2018 includes the phrase, “has chronic fibromyalgia symptoms and back pain.” However, it appears that the Veteran’s treatment provider was simply recording the Veteran's own self-diagnosis of his condition, as the record does not show an actual diagnosis of fibromyalgia. The Board notes that a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). The Veteran has also submitted treatment records from a private physician, Dr. K.C., who stated that the Veteran has “possible fibromyalgia.” However, there are no further records from Dr. K.C. showing whether he determined whether or not the Veteran meets the criteria for fibromyalgia. A diagnosis of “possible fibromyalgia” is speculative and speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). While the Veteran himself believes he has fibromyalgia due to Gulf War syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. 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, which has determined that the Veteran does not meet the clinical criteria for fibromyalgia and that his reported symptoms are attributable to diseases of known etiology and diagnosis. To the extent that the Veteran’s reported symptoms have been attributed by medical professionals to known clinical diagnoses and the Veteran has not been diagnosed with a medically unexplained chronic multi-symptom illness such as fibromyalgia, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998); 63 Fed. Reg. 56,703 (1998). Because the Veteran does not have an undiagnosed illness or medically unexplained multi-symptom illness, to include fibromyalgia, due to his Gulf War service, entitlement to service connection for a chronic undiagnosed illness or medically unexplained multi-symptom illness, to include fibromyalgia, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.