Citation Nr: 21025916 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-05 926 DATE: April 29, 2021 ORDER Service connection for fibromyalgia is granted. Service connection for chronic fatigue syndrome (CFS) is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations 2. The Veteran has been diagnosed with fibromyalgia, a medically unexplained chronic multi-symptom illness, which manifested in service and has existed for more than six months. 3. The Veteran has been diagnosed with CFS, a medically unexplained chronic multi-symptom illness, which manifested in service and has existed for more than six months. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for CFS have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air National Guard from November 1990 to August 1991, October 1991 to April 2003, and from September 2003 to January 2007. His active duty included service in Southwest Asia for which he received the Southwest Asia Service Medal for his support of Operation Desert Shield-Storm in the Persian Gulf region. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an August 2010 decision by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for fibromyalgia and CFS. In December 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In an April 2017 decision, the Board denied the Veteran’s claims for service connection. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Remand (JMR) in which they stipulated that the Board erred by not ensuring the duty to assist was satisfied, where it relied upon inadequate medical opinions. Based on the JMR, the Court entered an order in January 2019 vacating the Board’s decision and remanding the matters to the Board for readjudication. In September 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain an addendum opinion addressing the diagnoses of the Veteran’s fibromyalgia and CFS. The RO obtained the addendum opinion. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Presumptive service connection is available for Persian Gulf War veterans who exhibit objective indications of “qualifying chronic disabilities,” provided that any such disability manifests “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 or more no later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a)(1)(i). A “chronic disability” is defined “as disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period.” 38 C.F.R. § 3.317(a)(4). A “qualifying” chronic disability is one that results from either an undiagnosed illness or a medically unexplained chronic multi-symptom illnesses, such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder. 38 U.S.C. § 1117(a)(2)(A); 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multi-symptom illnesses (MUCMI) is “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); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018) (“Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multi-symptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.”); 38 C.F.R. § 3.317(a)(2)(ii). Significantly, there must be objective indications of qualifying chronic disabilities. 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); see also 38 U.S.C. § 1117(g) (listing examples of signs and symptoms that may be manifestations of undiagnosed illnesses or a MUCMI); 38 C.F.R. § 3.317(b) (same). Analysis 1. Service connection for fibromyalgia First element: A current disability The requirement for a veteran to have a “current disability” is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In July 2010, in connection with his claim for service connection, the RO provided the Veteran with a VA examination. During the examination, the Veteran reported a sudden onset of symptoms while stationed in Saudi Arabia in 1991. He said he was treated in Saudi Arabia and on his return to the United States for chronic sinus infections. He reported receiving antibiotics. His condition would resolve then reappear. He also reported symptoms including low back, shoulder, and knee aches, fevers, chills, sneezing fits, and sinus congestion. At the time of the examination, he reported symptoms including bilateral knee and elbow pain. He described the pain as “stinging” with an intensity of 6 out 10 on a 10-point scale. He also experienced stiffness and weakness in the same areas. He felt depressed and restless at time. He had a hard time grasping a single coin. He complained of difficulty getting to sleep and experienced frequent headaches when near air conditioning. Based on the clinical examination, the VA examiner determined there were objective clinical indicators that the Veteran experienced fibromyalgia. The examiner reported the Veteran met the criteria of 14 out of 18 positive trigger points for the diagnosis of fibromyalgia. The examiner opined that all but the Veteran’s low back pain was attributable to his fibromyalgia. His low back pain was more likely than not attributable to his history of herniated disc at L4-L5 and subsequent fusion at that level. In June 2011, the RO provided the Veteran a general medical examination. At that time, the Veteran reported progressive worsening of his symptoms. The examiner documented a history of chills, fever, malaise, and night sweats. The examiner documented abnormal symptoms of fatiguability, generalized muscle weakness, and insomnia. The examiner also documented nasal congestion, speech difficulty, swallowing difficulty, and toe-nail cracking. Based on the clinical examination, the VA examiner diagnosed the Veteran with fibromyalgia. In September 2017, following substantial development of the Veteran’s medical and military history, the RO provided the Veteran another VA examination. Oddly, the VA examiner stated the Veteran was never diagnosed with fibromyalgia. During the examination, the Veteran reported experiencing constant fatigue regardless of how much he sleeps, which has been occurring for several years. He reported frequent neck, back, arm, and leg pain. He reported being in a car accident two years prior. The VA examiner only recorded symptoms of widespread musculoskeletal pain and fatigue. Based on the clinical evaluation, the VA examiner found insufficient evidence to diagnose the Veteran with fibromyalgia. The examiner reasoned that there were no prior medical notes documenting symptoms consistent with fibromyalgia. The examiner cited a March 2016 VA neurology consult that did not mention fibromyalgia. The examiner summarily stated that “all symptoms were explained/diagnosed – see med history.” The examiner concluded the 2010 and 2011 diagnoses were inconsistent with the other medical evidence of record. In addition, the examiner found an insufficient number of trigger points for a diagnosis of fibromyalgia. In their JMR before the Court, the parties stipulated the Board’s initial reliance on the September 2017 VA examiner’s opinion was erroneous because the examiner did not adequately explain why the 2010 and 2011 examiners’ opinions were inconsistent with the Veteran’s medical records. The RO obtained a January 2020 addendum opinion from the September 2017 VA examiner, but the Board finds the addendum too is inadequate. The examiner only restated that the Veteran’s medical records did not document complaints associated with fibromyalgia, and she again cited the 2016 VA neurology consult. The examiner dismissed the Veteran’s lay statements to the 2010 and 2011 VA examiners in light of no other medical documentation of similar complaints. The Board, however, finds this to be incorrect. In March and April 2006 VA in-service medical records, the Veteran complained of feeling tired constantly, experiencing sore throat, and cough. Other in-service medical records documented chronic colds, back pain, and sinusitis. The Veteran sought treatment for these ailments. He also listed a history of such symptoms in his reports of medical history during active service. Overall, the Board can afford no probative value to the September 2017 VA opinion or January 2020 addendum opinion. See Dalton v. Peake, 21 Vet. App. 23, 39‒40 (2007) (a medical opinion is inadequate if it does not take into account a veteran’s reports of symptoms and history, even if recorded in the course of the examination); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based on an inaccurate factual premise has no probative value.”). In light of the available evidence of record, the Board finds a remand for a second addendum opinion would result in an unnecessary delay. The Veteran has credibly stated in his correspondences with VA and testified at his Board hearing as to the nature of his symptoms associated with fibromyalgia. The Board finds no credible reason within the record to discount the 2010 or 2011 VA examiners’ respective examinations or opinions. The Board further finds there is sufficient evidence to establish that Veteran had fibromyalgia, a medically unexplained chronic multisymptom illness that has persisted for more than six months, during the pendency of the claim. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, the record reflects that the Veteran served in the Persian Gulf War and had manifestations of a potential undiagnosed illness or medically unexplained chronic multisymptom illness while in-service. The Board has no credible reason to discount the Veteran’s lay statements and testimony that he began to experience his fibromyalgia symptoms while serving on active duty in Saudi Arabia in 1991, which have continued thereafter. Furthermore, his in-service and post-service medical records, in general, do reflect reports of similar symptomology. Therefore, the second element is satisfied. Third element: Causal link not required As to the third element of service connection, a causal link between the Veteran’s fibromyalgia and active military service, his in-service and post-service medical records indicate symptomatology that has existed for six months or more and disabilities that have exhibited intermittent episodes of improvement and worsening over a six-month period. Thus, the Veteran’s fibromyalgia is a qualifying chronic disability. As such, the Veteran is entitled to presumptive service connection and evidence of direct service connection is unnecessary. Therefore, the third element is satisfied. According, service connection for fibromyalgia is warranted. 2. Service connection for chronic fatigue syndrome (CFS) First element: A current disability The requirement for a veteran to have a “current disability” is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In July 2010, in connection with his claim for service connection, the RO provided the Veteran with a VA examination. During the examination, the Veteran reported his symptoms came on over a three-month period, starting in 1991 while in Saudi Arabia. He experienced difficult sleeping unless completely exhausted. He had occasional problems with sore throat and feeling hot. At the time of the examination, he reported he was no longer able to take long walks, which he liked doing, because he became fatigued. He reported his fatigue lasted approximately one hour. He experienced frequent headaches. He experienced migratory joint pain. Based on the clinical examination, the VA examiner determined there were objective clinical indicators that the Veteran experienced CFS. The examiner reported that the Veteran met 7 out of 10 criteria for CFS but also reported that some of the findings could be consistent with his diagnosis of hypothyroid and diabetes mellitus, type II. In June 2011, the RO provided the Veteran a general medical examination. At that time, the Veteran reported progressive worsening of his symptoms. The examiner documented a history of chills, fever, malaise, and night sweats. The examiner documented abnormal symptoms of fatiguability, generalized muscle weakness, and insomnia. The examiner also documented nasal congestion, speech difficulty, swallowing difficulty, and toe-nail cracking. Based on the clinical examination, the VA examiner diagnosed the Veteran with CFS. In September 2017, following substantial development of the Veteran’s medical and military history, the RO provided the Veteran another VA examination. Oddly, the VA examiner stated the Veteran was never diagnosed with CFS. During the examination, the Veteran reported experiencing constant fatigue regardless of how much he slept, which had been occurring for several years. He reported frequent neck, back, arm, and leg pain. He reported being in a car accident two years prior. The VA examiner only recorded the symptom of debilitating fatigue. Based on the clinical evaluation, the VA examiner found insufficient evidence to diagnose the Veteran with CFS despite the Veteran’s report of fatigue and pain. The examiner reasoned that there were no prior medical notes documenting symptoms consistent with CFS. The examiner cited a March 2016 VA neurology consult that did not mention fibromyalgia. The examiner summarily stated that “all symptoms were explained/diagnosed – see med history.” The examiner concluded the 2010 and 2011 diagnoses were inconsistent with the other medical evidence of record. In their JMR before the Court, the parties stipulated the Board’s initial reliance on the September 2017 VA examiner’s opinion was erroneous because the examiner did not adequately explain why the 2010 and 2011 examiners’ opinions were inconsistent with the Veteran’s medical records. The RO has obtained a January 2020 addendum opinion from the September 2017 VA examiner, but the Board finds the addendum too is inadequate. The examiner only restated that the Veteran’s medical records did not document complaints associated with CFS, and she again cited the 2016 VA neurology consult. The examiner dismissed the Veteran’s lay statements to the 2010 and 2011 VA examiners in light of no other medical documentation of similar complaints. The Board, however, finds this to be incorrect. In March and April 2006 VA in-service medical records, the Veteran complained of feeling tired constantly. Overall, the Board can afford no probative value to the September 2017 VA opinion or January 2020 addendum opinion. See Dalton v. Peake, 21 Vet. App. 23, 39‒40 (2007) (a medical opinion is inadequate if it does not take into account a veteran’s reports of symptoms and history, even if recorded in the course of the examination); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based on an inaccurate factual premise has no probative value.”). In light of the available evidence of record, the Board finds a remand for a second addendum opinion is unnecessary. The Veteran has credibly stated in his correspondences with VA and testified at his Board hearing as to the nature of his symptoms associated with CFS. The Board finds no credible reason within the record to discount the 2010 or 2011 VA examiners’ respective examinations or opinions. The Board finds there is sufficient evidence to establish that Veteran had CFS, a medically unexplained chronic multisymptom illness that has persisted from more than six months, during the pendency of the claim. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, the record reflects that the Veteran served in the Persian Gulf War and had manifestations of a potential undiagnosed illness or medically unexplained chronic multisymptom illness while in-service. The Board has no credible reason to discount the Veteran’s lay statements and testimony that he began to experience his CFS symptoms while service on active duty in Saudi Arabia in 1991, which have continued thereafter. Furthermore, his in-service and post-service medical records, in general, do reflect reports of similar symptomology. Therefore, the second element is satisfied. Third element: A causal link is not required As to the third element of service connection, typically, for claims for direct service connection brought under 38 U.S.C. §§ 1110, 1131 a causal link would be required between the Veteran’s current disability and his active military service. Here, for a Gulf War veterans such as this Veteran seeking service connection under 38 U.S.C. § 1117, no such link is required. Here, his in-service and post-service medical records indicate symptomatology that has existed for six months or more and disabilities that have exhibited intermittent episodes of improvement and worsening over a six-month period. Thus, the Veteran’s CFS is a qualifying chronic disability. As such, the Veteran is entitled to presumptive service connection and evidence of direct service connection is unnecessary. Therefore, the third element is satisfied. According, service connection for CFS is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.