Citation Nr: 21024200 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-25 180 DATE: April 22, 2021 ORDER Entitlement to service connection for lumbar spine condition, to include radiculopathy, (claimed as muscle and joint paint) is granted. Entitlement to service connection for generalized muscle and joint pain with morning stiffness, to include as due to Gulf War Illness, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine condition, to include radiculopathy, is related to in-service injury. 2. The Veteran’s muscle and joint pain, to include morning stiffness, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine condition, to include radiculopathy, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection muscle and joint pain, to include morning stiffness, are not met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1986 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the Veteran’s appeal with instructions to have an examiner, one with the appropriate knowledge and expertise on musculoskeletal disorders, provide an opinion regarding the claimed condition. Further, the examiner was told they should address the September and October 2014 correspondences from the Veteran’s physicians regarding arthralgias and myalgias that may be consistent with Southwest Asia service. The Board notes that the dates of those correspondences are incorrect. The dates should have been August 2014 and September 2014. Although a VA examination was conducted in November 2019, the examiner failed to address the aforementioned correspondences from the Veteran’s physicians. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, there is substantial compliance with the remand instructions as the examiner did provided opinions regarding the claimed conditions. Since the dates of those correspondences were incorrect and the examiner was not instructed that it shall address those correspondences, the Board is satisfied that the instructions in its remand have been satisfactorily complied with. See Stegall, 11 Vet. App. at 268. Based upon development of the case over time, to include the recent remand, the Board has expanded the claim to also include a separate entitlement for direct service connection for the lumbar spine. As discussed further below, the record indicates that the Veteran may be entitled to service connection for the lumbar spine condition, to include radiculopathy, based upon in-service events. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled); see also Douglas v Derwinski, 2 Vet. App. 435 (1992) (all pertinent legal theories must be considered). Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes 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 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and 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, menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Functional gastrointestinal disorders (excluding structural gastrointestinal diseases); Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term 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 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Factual background Military personnel records confirm service in Southwest Asia Theater of Operations from January 1991 to March 1991. Service treatment records (STRs) include a report of medical history completed by the Veteran at service separation in May 1991. The Veteran endorsed a history, among other things, of swollen or painful joints, frequent or severe headache, eye trouble, pain or pressure in his chest, cramps in his legs, and recurrent back pain. A report of medical examination performed at service separation reveals normal clinical findings. Post-service private clinical records from March 2011 indicate complaints of arthralgias, myalgias, and muscle cramps. An April 2014 VA examination report noted review of the claims file and medical records, recounted the Veteran’s complaints and history, and included a physical examination of the Veteran. The examiner indicated an inability to provide an opinion without resort to mere speculation and stated that there are “[n]o clinical findings to support medical etiology found.” The Veteran submitted an August 2014 letter and September 2014 letter from his VA and private physicians stating that he has arthralgias and myalgias that may be consistent with service in Southwest Asia. VA treatment records from May 2019 contain x-rays of the lumbar spine showing multilevel mild degenerative changes. Subsequent to the July 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The examination report provided negative opinions with respect to the following matters: The examiner opined that the Veterans muscle and joint pain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no objective evidence of a chronic condition and a nexus was not established; and it was noted that “Outside of symptoms related to the back pain, no systemic muscle or joint pain could be objectively identified.” Regarding whether or not the Veteran’s muscle and joint pain is a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness, the examiner further opined that it is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the objective exam was negative for a systemic muscle or joint illness; and that here was no objective evidence of a chronic condition identified to explain a muscle or joint illness. However, the November 2019 examination report provided a positive medical opinion with respect to symptoms related specifically to muscle and joint symptoms of the low back. The opinion stated that it was at least as likely as not incurred in or caused by the claimed in service injury. The examiner stated: “Onset of the condition was during service, documented in the Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established.” The examiner further remarked: Veteran did however report symptoms consistent with a back injury. This is confirmed in imaging obtained May of 2019 indicating multilevel degenerative changes. A search of the medical records indicated no such back pain on entry to the Army but veteran did report recurrent back pain on his exit exam. Veteran reported falling during a repelling training exercise in 1990. Veteran reported he didn't seek medical care at the time due to the military culture of “sucking it up.” “It is my medical opinion [that] the veterans'[sic] symptoms are consistent with a back injury to include DDD with radiculopathy which could be attributed to his military service.” Entitlement to service connection for lumbar spine condition, to include radiculopathy After review of the evidence, the Board finds that lumbar spine condition has been reasonably raised by the record. The Board accepts that the Veteran currently has a diagnosis of a lumbar spine condition, to include multilevel mild degenerative changes with radiculopathy. Additionally, the Veteran complained of back pain during service and asserts a back injury during a repelling training exercise in service. Thus, the first and second elements of service connection have been established. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). Most probative of whether the Veteran's lumbar spine condition is attributable to service is the November 2019 VA examination report. It is reiterated that this VA medical evidence specifically linked the Veteran’s current lumbar spine condition to service, explaining there was in-service evidence injury to his low back, which correlated with the Veteran’s medical history since service, as well as the current pathology of the lumbar spine and associated symptoms. Therefore, for service connection on a direct basis for lumbar spine condition, to include radiculopathy, is granted. Entitlement to service connection for generalized muscle and joint pain, to include morning stiffness, to include as due to Gulf War Illness The Veteran contends that he has generalized muscle and joint pain related to service in Southwest Asia during the Persian Gulf War period, including various service duties and exposure to chemicals. As to his claim that his muscle and joint pain is the result of Gulf War illness, the Board acknowledges he had service in the Persian Gulf. On one hand, the August and September 2014 evidence from the Veteran’s physicians indicate that the signs or symptoms manifested by the Veteran, to include arthralgias and myalgias, are those consistent with Gulf War Syndrome. On the other hand, the November 2019 VA examiner opined that the muscle and joint pain symptoms the Veteran experiences are not manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness because the objective examination was negative for a systemic muscle or joint illness; and that here was no objective evidence of a chronic condition identified to explain a muscle or joint illness. While there are conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). 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. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, the Board is most persuaded by the November 2019 VA opinion, which provided a rationale supported by the evidentiary record. It was explained there was no objective evidence to support the existence of the sign and symptoms of joint and muscle pain other than that experienced in the low back area due to a lumbar spine disorder and associated radiculopathy. The Board finds that the medical opinion is adequate as it is informed by an in-person examination, the Veteran's statements, his STRs, and his post-service treatment records. The August 2014 letter and September 2014 letter from his VA and private physicians are mere conclusory statements that do not provide a rationale, or indicate a thorough review of the Veteran’s statements, STRs, or post-service treatment records. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the basis for those opinions is not stated. The only other evidence in supporting the Veteran’s claim that he has generalized joint and muscle pain is related active duty service and/or toxin exposure during the Gulf War, are the Veteran's own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his joint pain is related to active duty service and may be caused by Gulf War Illness, he is not competent to make such a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Such opinions require specialized training and knowledge and are not capable of lay observation and his contentions are of little probative value. As is described above, the VA medical opinion finding no connection between the generalized joint and muscle pain to service is probative and outweighs the Veteran’s assertions. Accordingly, and absent evidence to the contrary, the evidence of record does not support a finding of direct service connection due to toxin exposure. In summary, the Board finds the preponderance of the evidence is against finding the Veteran's disability manifested by muscle and joint pain is related to active duty service or to toxin exposure during the Gulf War. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b). Accordingly, the Veteran's claim for entitlement to service connection for generalized muscle and joint pain, to include as due to Gulf War Illness, is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Edwards, 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.