Citation Nr: 21025157 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-26 734 DATE: April 27, 2021 ORDER Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder (to include memory loss), to include due to service-connected disability, is remanded. Entitlement to service connection for fatigue, to include as due to service-connected disability and qualifying chronic disability, is remanded. FINDING OF FACT The Veteran is a Persian Gulf Veteran and has a diagnosis of fibromyalgia, and the evidence is at least in equipoise as to whether his symptoms have manifested to a compensable degree. CONCLUSION OF LAW The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1987 to August 1992. These matters are on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a February 2021 letter, the Board notified the Veteran that the VLJ who conducted his hearing had retired. This letter offered the Veteran the option of electing a new hearing before a different VLJ and indicated that if no response was received within 30 days, the Board would proceed without a hearing. See 38 C.F.R. § 20.707. A response was not received within 30 days. The Board will now proceed with the adjudication of the appeal. In a January 2019 decision, the Board denied service connection for memory loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Partial Remand, which vacated the January 2019 decision insofar as it denied service connection for memory loss. The claim is now characterized as a claim for service connection for an acquired psychiatric disorder, to include memory loss. This appeal was remanded for additional development in January 2019, July 2020, and August 2020. Service connection for fibromyalgia The Veteran seeks service connection for fibromyalgia as a qualifying chronic disability presumptively related to his Gulf War service. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). Examples of MUCMIs include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317(a)(2)(B). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective non-medical indicators of illness. Here, the Veteran had active service in the Persian Gulf theater from January 1991 to July 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service treatment records reflect that the Veteran was diagnosed with ankle sprain in March 1992. The August 1992 separation examination reflects that he denied swollen or painful joints. A VA general medical examination reflects that the Veteran reported service in Saudi Arabia and Kuwait. He reported that he did not have complaints in service but had developed several complaints since service. He complained of muscle aches of his left shoulder and bilateral ankle pain. The examiner diagnosed episodic left shoulder tendonitis and bilateral ankle tendonitis. The Veteran had a VA examination in June 2013. He reported muscle pain and joint pain. The examiner completed a fibromyalgia disability benefits questionnaire (DBQ). The examination report indicated that the Veteran had not ever been diagnosed with fibromyalgia. The examiner reviewed private treatment records and noted that the Veteran reported leg numbness in 2008 and was later diagnosed with multiple sclerosis. The examination indicated that the Veteran did not have a diagnosis or treatment for fibromyalgia. It was noted that the Veteran stated that he had pain in the joints, bilateral ankles, knees and arms, and shoulders. The examination showed that the Veteran did not have any symptoms in trigger points. He did not require continuous medication for control of fibromyalgia symptoms and was not currently undergoing treatment for fibromyalgia. The June 2013 examiner noted that the Veteran had signs and symptoms attributable to fibromyalgia. Those findings included widespread musculoskeletal pain, fatigue, and headache. The examiner indicated that he did not have a diagnosis of fibromyalgia. He did have a diagnosis of multiple sclerosis. There were no tender points (trigger points) for pain. In January 2019, the Board found that the June 2013 VA examination was inconsistent with respect to the findings regarding fibromyalgia. Specifically, it was noted that the examiner noted that the Veteran did not have fibromyalgia but attributed some of the Veteran’s symptoms to fibromyalgia. The case was remanded for a new examination to resolve the inconsistent findings. The Veteran had a VA examination in October 2019. The examiner diagnosed fibromyalgia with onset in 1994. The history of the condition included tingling feet and hands and shoulder pains. With respect to the history of the condition, it was noted that, in 1993, the Veteran had complaints of tingling hands and shoulder pains. He also reported ankle pains. He had current signs and symptoms attributable to fibromyalgia. His symptoms included widespread musculoskeletal pain, fatigue, sleep disturbances, and headaches. The frequency of his symptoms was constant or nearly constant. He did not have tender points (trigger points). The examiner opined that fibromyalgia is less likely than not related to service. The examiner opined that the claimed condition is less likely than not related to service. The examiner opined that fibromyalgia has no proven pathophysiology. The October 2019 DBQ for fibromyalgia shows that the Veteran has a diagnosis of fibromyalgia which has existed since 1994. Thus, the symptoms are considered chronic under the regulatory definition. Moreover, the fibromyalgia has manifested to a degree of 10 percent or more. The Veteran has pain in the joints, bilateral ankles, knees and arms, and shoulders. At the March 2018 hearing, the Veteran testified that he took medication such as Aspirin, for the pain. Giving the Veteran the benefit of the doubt, as he had widespread musculoskeletal pain associated with fibromyalgia and reported taking medication for control of the symptoms, the Board finds that his fibromyalgia manifested to a compensable degree within the applicable presumptive period. 38 C.F.R. § 4.71(a), Diagnostic Code 5025. The Board notes that the November 2019 medical nexus opinion found that the Veteran’s fibromyalgia was not related to service. Fibromyalgia is on the list of medically unexplained chronic multisymptom illnesses subject to presumptive service connection. 38 C.F.R. § 3.317. Accordingly, nexus evidence is not required for presumptive service connection. Gutierrez, 19 Vet. App. at 10. In July 2020, the Board remanded the claim for a new examination and nexus opinion. A VA examination was obtained in July 2020. The examiner opined that the Veteran does not have and has never had fibromyalgia. The examiner opined that the November 2019 examiner diagnosed fibromyalgia with evidence from the claims file or service records. The examiner noted that the service treatment records are negative for fibromyalgia, continuous medication was not required for control of fibromyalgia, and the Veteran was not undergoing current treatment for fibromyalgia. The Board accords greater probative weight to the November 2019 VA examination, as it was based on an in-person examination of the Veteran and a review of the claims file. Thus, the Board finds that the probative evidence is at least in equipoise as to whether the Veteran has a current diagnosis of fibromyalgia. Further, given the diagnosis, objective findings, and symptoms shown on the November 2019 VA fibromyalgia examination, reasonable doubt is resolved in the Veteran’s favor. The evidence to the contrary includes the June 2020 negative opinion. However, that evidence does not outweigh the probative evidence for the claim. Accordingly, the Veteran’s fibromyalgia is considered a MUCMI, and presumptive service connection is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder (to include memory loss) is remanded. In August 2020, a VA examiner diagnosed unspecified depressive disorder. The examiner opined that unspecified depressive disorder is at least as likely as not due to current psychosocial stressors and multiple sclerosis. The examiner noted that memory loss is not a psychiatric or medical diagnosis but a symptom. In January 2021 written argument, the Veteran’s representative advanced the contention that the Veteran’s acquired psychiatric disorder is related to his service-connected headaches. Service connection has also been granted for fibromyalgia in the above decision. The case is being remanded for a medical opinion to address whether his acquired psychiatric disorder is caused or aggravated by service-connected disabilities. Entitlement to service connection for fatigue, to include as due to service-connected disability and qualifying chronic disability, is remanded. The Veteran seeks service connection for chronic fatigue syndrome, claimed as a qualifying chronic disability. A March 1998 VA examination reflects that the Veteran complained of fatigue since at least 1992. The examiner diagnosed fatigue, possibly depression related. A supplemental medical opinion was obtained in July 2020. The examiner opined that the Veteran does not have chronic fatigue syndrome. The examiner explained that a review of VA medical records, the claims file, and service treatment records, was negative for findings of CFS. The examiner opined that, although a “diagnosis” of fatigue appears in the VA problem list, his diagnoses of depression, morbid obesity, obesity-related sleep apnea, and multiple sclerosis, explain his fatigue. The claim for service connection for fatigue is intertwined with the claim for service connection for an acquired psychiatric disorder and must be remanded pending additional development of the claim. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s acquired psychiatric disability. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently-diagnosed acquired psychiatric disorder, is (a) proximately due to or the result of the Veteran's service-connected headaches and/or fibromyalgia, or (b) aggravated (any incremental increase his acquired psychiatric disability beyond its natural progression) by his service-connected headaches and/or fibromyalgia? If the examiner finds that the Veteran has an acquired psychiatric disability that is at least as likely as not proximately due to or aggravated by a service-connected disability, is it at least as likely as not (50 percent probability or more) that any currently-diagnosed fatigue disability, is (a) proximately due to or the result of the Veteran’s acquired psychiatric disability, or (b) aggravated (any incremental increase beyond its natural progression) by the acquired psychiatric disability? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.