Citation Nr: 21024626 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-38 380 DATE: April 23, 2021 ORDER Entitlement to service connection for fibromyalgia (claimed as muscle pain) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has fibromyalgia or a disability manifested by muscle pain that began during his service or is otherwise related or attributable to his service, including especially to his service during the Persian Gulf War. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for fibromyalgia or disability manifested by muscle pain. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 from September 1974 to September 1979 and had additional service in the Army National Guard, including from November 1990 to June 1991 in Southwest Asia. This appeal to the Board of Veterans’ Appeals (Board) is from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). The Veteran testified in support of this claim during a hearing in November 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. Entitlement to service connection for fibromyalgia (claimed as muscle pain) The Veteran contends that he has fibromyalgia because of his military service, especially from exposure to environmental toxins and hazards (e.g., chemicals, diesel fuels, etc.) while stationed in Southwest Asia during the Persian Gulf War. He also says he had headaches and eye irritation after that exposure, wore flea collars to control sand fleas, was around the burn pits (oil wells), and did things without the needed protection from chemical suits. Service connection may be granted on a presumptive basis for Persian Gulf War Veterans who exhibit objective indications of qualifying chronic disability, including resulting from undiagnosed illness, which 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 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317.   A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). The records concerning the Veteran’s service confirm he deployed to Southwest Asia from November 1990 and June 1991 on full-time, active duty status. As such, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. Having made that determination, the Board’s next inquiry is whether the Veteran has a qualifying chronic disability. 38 C.F.R. § 3.317(e)(1). A qualifying chronic disability for VA purposes is a chronic disability resulting from (a) an undiagnosed illness, (b) a medically unexplained chronic multi symptom illness (MUCMI) (such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). An undiagnosed illness is a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. A MUCMI exists when either the etiology or pathophysiology of the illness is inconclusive. See Stewart v. Wilkie, 30 Vet. App. 383, 387 (U.S. 2018). A multisystem disease is not a MUCMI if both the etiology and the pathophysiology of the illness are partially understood. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification and a minimum of a six-month period of chronicity. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 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 an undiagnosed illness or a medically unexplained chronic multi-symptom 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). Claims based on qualifying chronic disabilities for Persian Gulf Veterans, unlike those for "direct service connection," do not require competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8 (2004). Laypersons such as the Veteran are competent to report objective signs of illness. Id. On review of the record on appeal, however, the Board finds that the weight of the evidence is against concluding the Veteran has a qualifying chronic disability. The record does not reflect an undiagnosed illness, MUCMI, or other unexplained, unattributed, or undiagnosed symptoms. But the record conversely does show several diagnosed conditions with symptoms ascribed to them. The Veteran filed his service connection claim for muscle pain in October 2016. His reported widespread torso, leg, and arm pain beginning 7 to 8 years earlier – so, in approximately 2009, five years after his last period of active duty – starting as mild aches and worsening since. He stated his pain was not caused by a specific trauma and is not relieved by rest. He acknowledged a prior, unrelated diagnosis of cervical spine degenerative disc disease (DDD) but stated that his pain was more widespread than contemplated by that diagnosis.   Consistent with his stated time of onset, his service treatment records (STRs) are grossly unremarkable for muscle pain complaints, although he suffered identified, diagnosed injuries. He was treated for pain after a back injury in June 1997, for a left foot fracture in November 2003, and for a right shoulder injury in February 2004. His only non-traumatic symptom report was for hip pain in November 2003 – but that eventually was diagnosed and attributed to iliotibial band syndrome; moreover, that treatment ended in early 2004. The post-service treatment notes do not support the Veteran’s claimed onset of symptoms or suggest they are owing to the type of qualifying chronic disability contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. As with his STRs, his post-service treatment notes reflect diagnosed conditions with symptoms including arm and torso pain. His cervical DDD was first diagnosed via MRI in June 2008, affecting his neck, shoulders, and upper back. In March 2012, he was diagnosed with Tietze syndrome and costochondritis, both of which are inflammatory disorders involving pain and swelling in the ribcage. See Gale Encyclopedia of Medicine (4th ed. 2012). He complained of neck, arm, and low back pain in November 2014 and May 2016, which providers attributed to repetitive movements at his civilian job. In September 2016, so just one month before filing his claim, he was in active treatment for a sprained back due to moving furniture, and bilateral tenosynovitis (trigger fingers) and lateral epicondylitis (tennis elbow, recurring and first diagnosed in January 2008), attributed to his civilian job as a mailman. Also, notably, the only undiagnosed symptoms on record were for a series of muscle spasms, called fasciculations, between February 2008 and March 2009. He was advised to follow up with a neurologist but did not do so. However, there were no reports after March 2009. Any other reports of muscle spasms are linked to the diagnosed conditions identified above. In sum, the record does not reflect an undiagnosed illness, but rather a series of diagnosed conditions attributable to a variety of causes bearing no relationship or correlation with the Veteran’s service in Southwest Asia. Of the signs and symptoms possibly contemplated by 38 C.F.R. § 3.317(a)(3), the Veteran’s treatment records reflect joint pain, neurologic signs or symptoms, skin conditions, and gastrointestinal symptoms. But his joint pain, as discussed, is attributed to diagnosed conditions. Notably, and despite his initial claim, the record – including medical notes, lay statements, and STRs – does not reflect complaints regarding leg pain. His arm and torso pain are attributed to the diagnoses mentioned, without outlying symptoms or unattributed reports. The only neurologic symptoms are also the only unattributed fasciculations first reported in February 2008. However, these were not present at the time of or during the pendency of his claim and have not been attributed to a condition that was present during those periods, as required to be considered current disabilities. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There are no lay or medical statements tending to show these episodes have occurred since March 2009. As such, they do not qualify as current disabilities for compensation purposes. Finally, the Veteran’s skin and gastrointestinal symptoms, identified as irritable bowel syndrome (IBS) with diverticulitis and granuloma annulare, are service connected and therefore already separately compensated. Consequently, the Board concludes the preponderance of the evidence is against finding the Veteran has fibromyalgia or a chronic disability manifested by muscle pain as contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Further, the record does not reflect objective indications of a qualifying MUCMI, including fibromyalgia. Fibromyalgia is defined as "pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points." See Dorland's Illustrated Medical Dictionary 697 (30th ed. 2003). The Veteran was diagnosed with fibromyalgia on examination in November 2013. However, treatment notes from March 2014 reflect that diagnosis was questioned by providers who concluded his symptoms, instead, were more likely the result of degenerative joint disease (DJD) and did not fit the criteria for fibromyalgia. His November 2016 and March 2018 VA examinations likewise found his symptoms did not fit the criteria for fibromyalgia; so, there is no current fibromyalgia diagnosis and insufficient evidence to support this diagnosis. In explanation, the November 2016 VA examiner indicated the Veteran did not have any of the trigger points commonly associated with fibromyalgia. As importantly, the record also does not reflect non-medical indicators that are capable of independent verification and a minimum of a six-month period of chronicity. Rather, the reverse is true, as there is independent verification of medical indicators attributable to diagnosed conditions. As such, the Board must find that, although he had qualifying service in the Persian Gulf region, the Veteran does not exhibit objective indications of qualifying chronic disability and, therefore, presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not established. The Board, nonetheless, must still consider whether the Veteran may be entitled to service connection, instead, on a direct basis or some other presumptive basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The three-element test for direct service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Disorders diagnosed after discharge still may be determined service connected if the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). While certain “chronic” diseases also will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty (see 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a)), presumptive periods do not apply to active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). And here, unfortunately, the record does not support finding satisfaction of the first and most fundamental requirement for service connection – a current disability, which is considered the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must at least show the Veteran has the disability for which benefits are being claimed – else, there necessarily can be no valid claim because, for all intents and purposes, there is no present disability to relate or attribute to his military service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). As already alluded to, precedent cases of the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) since have clarified what is required to show the existence of a current disability. See, e.g., McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, though, as already discussed, there is not the required showing of a current muscle pain or fibromyalgia disability – which, as explained, is the most fundamental requirement of the claim. In this circumstance, where the Veteran has not satisfied this threshold preliminary pleading-and-proof requirement of first establishing that he has this claimed disability, no discussion of the remaining elements for service connection is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection).   Consequently, the preponderance of the evidence is against the Veteran's claim for service connection for fibromyalgia or a disability manifested by muscle pain, on both a direct and presumptive basis. In denying the claim, the Board finds the benefit-of-the-doubt doctrine inapplicable since there is not the required relative balance of evidence for versus against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.