Citation Nr: 21040905 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-16 734 DATE: July 7, 2021 ORDER Service connection for fibromyalgia is denied. Service connection for irritable bowel syndrome (IBS) is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Southwest Asia theater of operations, and the preponderance of the evidence is against a finding that her fibromyalgia was incurred in or caused by service or caused or aggravated by a service-connected disability. 2. The Veteran did not serve in the Southwest Asia theater of operations, and the preponderance of the evidence is against a finding that her IBS was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 2. The criteria for establishing entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from October 1980 to March 1981 and on active duty from February 1991 to April 1991 and from February 1995 to September 1995, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was most recently before the Board in January 2021, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. In a March 2021 rating decision, service connection was granted for hypertension. Therefore, that issue is no longer before the Board. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) 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). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Additionally, under legislation specific to Persian Gulf veterans, service connection may be established on a presumptive basis for a qualifying chronic disability, including fibromyalgia and IBS, that became manifest during active service 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Veteran has previously asserted that her fibromyalgia and IBS may be due to a Persian Gulf War illness. However, the Veteran did not serve in the Southwest Asia theater of operations. Therefore, she does not qualify for presumptive service connection under these provisions. 1. Entitlement to service connection for fibromyalgia The Veteran asserts that her fibromyalgia was caused by vaccinations she received when she was called up to active duty in February 1991. During the November 2013 Board hearing, the Veteran testified that she began experiencing pain and flu-like symptoms immediately after receiving an anthrax vaccination in preparation for a deployment in 1991. She also submitted written statements from her father, who indicated that the Veteran's health deteriorated after her in-service vaccinations. The Veteran's service immunization records do not show that she ever received the anthrax vaccine. The record shows that in October and November 1980, she received vaccinations for poliovirus, influenza, meningococcal, smallpox, typhoid, and tetanus-diphtheria. In February 1991, she again received typhoid and tetanus-diphtheria vaccinations. Between July 1993 and January 1994, she received vaccinations for poliovirus; measles, mumps, and rubella (MMR); meningococcal; hepatitis B, typhoid; and tetanus-diphtheria. In July 1995, she received poliovirus and tetanus-diphtheria vaccinations. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's fibromyalgia was incurred in or caused by service or caused or aggravated by a service-connected disability. Reserve service treatment records show that prior to the Veteran's period of active duty from February 1991 to April 1991, she reported occasional swelling in her ankle with prolonged walking and low back pain on an April 1985 report of medical history. In 1989, she reported left elbow pain and swelling after a fall. Between January 1990 and October 1990, the Veteran sought treatment for upper and lower back pain and reported a four to five-year history of lower back pain. In November 1990, she reported pain in the cervical area into her back and shoulder and lower back pain radiating into the right lower extremity due to a fall from a wall on an obstacle course in December 1989. Although the Veteran claims to have had generalized pain and flu-like symptoms ever since she received vaccinations during her period of active duty from February 1991 to April 1991, the Board finds that such assertions are not consistent with the evidence of record. During that period of active duty, the Veteran received typhoid and tetanus-diphtheria vaccinations in February 1991. In March 1991, she sought treatment for right shoulder and upper arm pain, and the assessments included a muscle strain, right shoulder tendonitis, and impingement syndrome. A March 1991 report of medical examination shows that the Veteran's musculo-skeletal system was normal upon her discharge from active duty. It was noted that the Veteran was recently treated with motrin for calcific tendonitis of the right shoulder, which had improved, but she did not report any symptoms of generalized pain or flu-like symptoms. After the Veteran's discharge from active duty, she again sought treatment for right shoulder tendonitis in April 1991 and May 1991. Thereafter, a July 1993 Reserve medical examination report shows that the Veteran's musculoskeletal system was normal, and she denied any history of swollen or painful joints or arthritis, rheumatism, or bursitis on an accompanying report of medical history. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). During the Veteran's period of active duty from February 1995 to September 1995, she sought treatment for bruising and skinned hands after a fall while running in May 1995. However, she did not report any symptoms of generalized pain or flu-like symptoms, despite seeking treatment for other conditions. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). The record shows that around November 2005, the Veteran reported symptoms of generalized pain. In February 2006, she reported overall feeling poorly with constant generalized pain over multiple parts of her body and feelings of malaise. In April 2006 and August 2006, she reported pain in the lower back, knees, shoulders, and right arm, which began in July 2002, after being assaulted while working as a police officer. In September 2006, the Veteran reported generalized weakness and trembling in her hands and legs, and the assessments included chronic pain syndrome and questionable fibromyalgia. In October 2006, the Veteran was referred to a neurologist to rule out multiple sclerosis (MS). The treatment provider subsequently advised the Veteran that she did not have MS and indicated that her presenting symptoms were likely related to underlying psychiatric issues. The month before the Veteran filed her service connection claim for fibromyalgia, she underwent a VA Persian Gulf Registry examination in February 2010, during which she reported having nonservice-connected injuries to the right knee, right hand, right wrist, and lower back due to an altercation while working as a police officer in 2002. She also reported having flu-like symptoms consisting of body aches since 1991. She stated that she recalled being told that she had fibromyalgia, but she denied any treatment for fibromyalgia. The assessment was history of myalgias, not currently present, and does not meet the diagnostic criteria for fibromyalgia. The Veteran underwent a VA examination in September 2015, at which time the examiner indicated that the record did not show that the Veteran had a diagnosis of fibromyalgia. A January 2016 VA rheumatology treatment record shows that the Veteran reported diffuse musculoskeletal pain since 1991 following vaccinations prior to consideration for a Middle East deployment. The assessment was chronic pain disorder, most consistent with fibromyalgia syndrome with sleep disturbance. The Veteran underwent another VA examination in January 2020, during the examiner indicated that the Veteran was diagnosed with fibromyalgia in January 2016. The examiner reviewed the evidence of record and opined that it was at least as likely as not that the Veteran's fibromyalgia was related to her "diffuse musculo-skeletal pain since 1991 following vaccinations prior to consideration for Middle East deployment." In support of this, the examiner indicated that there was a continuation of this condition from service, and part of the presumptive diagnosis from Southwest Asia exposure are met, in part, by the Veteran having had multiple vaccinations; however, vaccinations cannot cause fibromyalgia. The examiner further indicated that fibromyalgia is a diagnosable chronic multi-symptom illness with a partially explained etiology. In September 2020, another VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's fibromyalgia was incurred in or caused by service. In support of this, the examiner explained that there is no evidence that the Veteran had symptoms of fibromyalgia during service, and there is no evidence in the medical literature indicating that fibromyalgia is caused by immunizations. The examiner also opined that it was less likely than not that the Veteran's fibromyalgia was caused or aggravated by her service-connected posttraumatic stress disorder (PTSD). In support of this, the examiner explained that according to peer reviewed medical literature, fibromyalgia is a chronic pain disorder with unknown etiology and unclear pathophysiology, and PTSD is not an identified cause of fibromyalgia. The examiner also explained that while psychological factors, such as stress, can enhance one's pain experience, studies are not conclusive regarding a nexus or aggravation. The examiner also noted that the Veteran had longstanding nonservice-connected injuries to her back, knee, and hand prior to her diagnosis of PTSD, and any increase in the Veteran's pain over time was more likely due to normal wear and tear and obesity. The Board finds the September 2020 VA examiner's opinions to be highly probative and persuasive, as they are based on a review of the evidence of record and are supported with reasoned medical explanations that are consistent with the Veteran's treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board finds the January 2020 VA examiner's opinion to be significantly less probative because it appears to be based on the fact that fibromyalgia is a chronic multi-symptom illness with a partially explained etiology presumptively related to service in the Southwest Asia theater of operations. However, as previously noted, the Veteran did not serve in the Southwest Asia theater of operations; therefore, she does not qualify for presumptive service connection for disabilities resulting from such service, and the examiner indicated that vaccinations do not cause fibromyalgia. Additionally, the January 2020 VA examiner also appeared to rely on the January 2016 rheumatology treatment record showing that the Veteran reported diffuse musculoskeletal pain since her in-service vaccinations in 1991, which the Board has already found lacks credibility. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "[a]n opinion based on an inaccurate factual premise has no probative value"). Although the Veteran believes that her fibromyalgia was caused by in-service vaccinations, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of fibromyalgia are matters not capable of lay observation and requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of her fibromyalgia is not competent medical evidence. 2. Entitlement to service connection for IBS The Veteran asserts that her IBS was caused by vaccinations she received when she was called up to active duty in February 1991. During the November 2013 Board hearing, the Veteran testified that she began experiencing diarrhea and bowel symptoms immediately after receiving vaccinations in preparation for a deployment in 1991. She also submitted written statements from her father, who indicated that the Veteran's health deteriorated after her in-service vaccinations. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's IBS was incurred in or caused by service. Reserve service treatment records show that prior to the Veteran's period of active duty from February 1991 to April 1991, she reported having diarrhea in April 1990. Although the Veteran claims to have had diarrhea and bowel symptoms ever since she received vaccinations during her period of active duty from February 1991 to April 1991, the Board finds that such assertions are not consistent with the evidence of record. As previously noted, the Veteran received typhoid and tetanus-diphtheria vaccinations in February 1991. Thereafter, despite seeking treatment for various other conditions, including a cough, sore throat, and right shoulder pain, the record shows no complaints of or treatment for diarrhea or other bowel symptoms. See AZ, 731 F.3d at 1311. A March 1991 report of medical examination shows that the Veteran's abdomen and viscera were normal upon her discharge from active duty. Thereafter, a July 1993 Reserve medical examination report shows that the Veteran's abdomen and viscera were normal, and she denied any stomach or intestinal trouble on an accompanying report of medical history. During the Veteran's period of active duty from February 1995 to September 1995, the record again shows no complaints of or treatment for diarrhea or bowel symptoms, despite records showing treatment for other conditions. See AZ, 731 F.3d at 1311. Thereafter, the Veteran's abdomen and viscera found to be normal during a July 1997 Reserve medical examination, and she again denied any history of stomach or intestinal trouble on an accompanying report of medical history. Treatment records show that in March 2006, the Veteran reported a ten-year history of diarrhea, and the assessment was chronic diarrhea, most likely due to IBS. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan, 451 F.3d at 1337. The month before the Veteran filed her service connection claim for IBS, she underwent a VA Persian Gulf Registry examination in February 2010, during which she reported having diarrhea due to an undiagnosed condition, which began during her 1991 period of active duty. The impression was IBS, and the treatment provider indicated that it was unlikely related to the anthrax vaccine. The Veteran underwent a VA examination in September 2015, and the examiner opined that it was less likely than not that the Veteran's IBS was incurred in or caused by service. In support of this, the examiner explained that there is no medical or scientific evidence suggesting that the vaccinations the Veteran received during service cause IBS. In September 2017, another VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's IBS was incurred in or caused by service. In support of this, the examiner explained that the Veteran's service treatment records did not show evidence of IBS during service, and a search of relevant medical literature revealed no evidence of a link between vaccinations and the development of IBS, either at the time of the vaccinations or later. In January 2020, another VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's current complaints of diarrhea and loose stools were incurred in or caused by service. In support of this, the examiner explained that there was no evidence of chronic diarrhea with loose stools in the Veteran's service treatment records. In September 2020, another VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's IBS was incurred in or caused by service. In support of this, the examiner explained that there was no evidence of chronic diarrhea, abdominal pain, or other symptoms of IBS in the Veteran's service treatment records, and she even denied gastrointestinal symptoms as late as 1997. The examiner also indicated that the medical literature does not identify chronic diarrhea or IBS as a possible side effect of the vaccines the Veteran received during service. The Board finds the opinions of the VA examiners, taken together, to be highly probative and persuasive, as they are based on a review of the evidence of record and supported with reasoned medical explanations that are consistent with the Veteran's treatment records. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Although the Veteran believes that her IBS was caused by in-service vaccinations, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d 1377. In this regard, the diagnosis and etiology of IBS, which had its onset years after service, are matters not capable of lay observation and requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of her IBS is not competent medical evidence. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.