Citation Nr: 21042359 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-48 154A DATE: July 12, 2021 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for gastrointestinal symptoms to include irritable bowel syndrome (IBS) is denied. REMANDED Entitlement to service connection for an unspecified skin condition, to include acne, is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for lower back pain is remanded. Entitlement to service connection for right shoulder injury is remanded. Entitlement to service connection for left shoulder injury is remanded. FINDINGS OF FACT 1. There is no current diagnosis of fibromyalgia. 2. There is no current diagnosis of a gastrointestinal disability to include irritable bowel syndrome (IBS). CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2005 to October 2007. He served in the Southwest Asia Theater of Operations during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a December 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These issues were previously before the Board in February 2021 at which time they were remanded for additional development. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in December 2013. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duet to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are for consideration. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, 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). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "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 C.F.R. § 3.317(a)(2)(ii). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Fibromyalgia The Veteran asserts he has fibromyalgia which is related to his time in service. At his hearing, the Veteran testified that he has pain his back, shoulder, ankles, and joints. He testified that he experiences pain in the morning and with cold weather. He testified that he noticed this pain approximately one and one-half years after his separation from service. He testified that he has talked to his doctors about this, but no one has done any testing or anything at all for him. The Veteran's service treatment records (STRs) are negative for treatment for symptoms and/or a diagnosis of fibromyalgia. VA treatment records are also negative for a diagnosis of or treatment for fibromyalgia. The Veteran was afforded a VA contract fibromyalgia examination in April 2021. The Veteran stated that he started having symptoms in service. He complained of muscle pain in his lower back, joint pain in his arms and legs, and that he had been constantly tired. The Veteran did not seek a medical evaluation during service. He stated that he went to the hospital after discharge and, according to the Veteran, was diagnosed with fibromyalgia. The VA contract examiner noted that the Veteran's medical treatment records are silent for a diagnosis of fibromyalgia. The VA contract examiner determined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by service because no chronic diagnosis of fibromyalgia has been made, and that the Veteran's symptoms of fibromyalgia are subjective only. The evidence of record does not establish a diagnosis of fibromyalgia. Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran is competent to give evidence about observable symptoms such as pain, he is not competent to diagnose a medical condition such as fibromyalgia. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent he generally describes pain, such is related as a symptom of other diagnosed conditions, and not as an independent undiagnosed illness or as part of multisymptom disease. The Board finds that service connection is not warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Gastrointestinal symptoms The Veteran asserts he has a gastrointestinal disability to include IBS symptoms which is related to his time in service. At his hearing, the Veteran testified that he has gastrointestinal issues, but nothing has been done about it. He testified that he first noticed stomach issues after eating MREs in the field. He testified that he complained that his stomach was hurting. He experienced stomach pain, diarrhea, and constipation while at Fort Drum. He testified that he still experiences these symptoms. The Veteran's STRs are negative for treatment for symptoms and/or a diagnosis of a gastrointestinal disability, to include IBS. No diarrhea or constipation is noted. VA treatment records are also negative for a diagnosis of or treatment for a gastrointestinal disorder to include IBS. The Veteran in fact repeatedly denied such symptoms, to include diarrhea and constipation. The Veteran was afforded a VA intestinal conditions examination in March 2021. The VA examiner noted that the Veteran did not have, nor had ever been diagnosed with, an intestinal condition. The Veteran stated that his GI symptoms had occurred since he left the military. He said he has an ache/cramp/sharp stab located around his left rib case and left kidney area 4 times a week lasting 1 to 2 hours, occurring periodically throughout the day. He reported that if he eats, it makes the pain worse in a couple of hours. He reported his stomach cramps up when he has a loose stool. Abdominal pain was not necessarily better after a bowel movement. He reported experiencing diarrhea 3 times a week with loose stool. He reported experiencing constipation if he goes 2-3 days without a bowel movement. He said three years ago a doctor at VA told him he has a "gastrointestinal." Continuous medication is not required for control nor has he had any surgical treatment for an intestinal condition. No signs nor symptoms were attributable to any non-surgical non-infectious intestinal conditions. The Veteran does not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. No weight loss, malnutrition, or serious complications or other general health effects attributable to the intestinal condition were noted. Lab test results were normal. The VA examiner determined that there is no currently diagnosed gastrointestinal disability based on history and review of available medical documentation. The evidence of record does not establish a diagnosis of a gastrointestinal disorder, to include IBS. The medical evidence does not show any current symptomatology, and contradicts the Veteran's subjective complaints. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, even assuming arguendo that the Veteran is accurately reporting the presence of gastrointestinal symptoms, to the extent that his statements are offered as a nexus opinion, that is, an association between his complaints and his Persian Gulf service, while the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, see Barr v. Nicholson, 21 Vet. App. 303 (2007), and under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), he is not competent to offer a nexus opinion with regard to his complaints and their connection to active service, as this is a complex question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board therefore finds that the Veteran's opinion as to an association between his alleged current complaints and his service is beyond his lay capacity and is of no probative weight. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's responsibility to assess the probative value of all medical and lay evidence). To the extent that the Veteran's statements are offered as a medical diagnosis of a medically unexplained chronic multisymptom illness, the Board again notes that no factual foundation has been established to show that he is qualified through specialized knowledge, education, training, or experience to offer a medical diagnosis or opinion; particularly where, as here, there is competent medical evidence to the contrary, which directly contradicts the Veteran's allegations. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Jandreau. For these reasons, the Board therefore finds that the preponderance of the probative evidence of record weighs against the claim of service connection, and the benefit-of-the-doubt doctrine does not apply. Gilbert, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. REASONS FOR REMAND The issues of entitlement to service connection for a skin condition to include acne, for right and left ankle disability, for a back disability and for right and left shoulder disabilities are remanded for additional development. At his hearing, the Veteran testified that he has experienced back, bilateral shoulder and bilateral ankle symptoms since service which he attributes to multiple ruck marches, as long as 22 miles in one day. With regard to his claimed skin condition, he testified that he had shaving bumps in service and still has bumps on his chest. In its February 2021 remand, the Board directed that the Veteran was to be scheduled for VA examinations and opinions as to the etiologies of the Veteran's claimed conditions were to be provided. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran underwent a VA contract skin conditions examination in April 2021. The VA contract examiner determined that it was less likely than not that the Veteran's skin condition was incurred in or caused by service. The VA contract examiner stated that the Veteran's medical records are "silent" for a skin condition. The Board finds this opinion is inadequate for adjudication purposes because it did not consider the Veteran's treatment for acne documented in his STRs, his VA treatment records document treatment for papules, nor his hearing testimony in which he described experiencing symptoms while in service. He complained of hard bumps on his chest and occasionally tender bumps with white puss. On remand, an addendum opinion should be obtained as to whether or not any currently diagnosed skin disorder is related to the Veteran's time in service, to include as related to his treatment for acne in service reflected in his STRs. In April 2021, the Veteran underwent a VA contract ankle conditions examination. The VA contract examiner determined that it was less likely than not that the Veteran's right and left ankle sprains were incurred in or caused by service. The VA contract examiner stated that the Veteran mentioned that he sprained both ankles several times marching and carrying heavy equipment during service and that the Veteran did not go for a medical evaluation in service. The Board finds this opinion is inadequate for adjudication purposes because it did not consider the Veteran's treatment for ankle injuries documented in his STRs, his VA treatment records noting degenerative joint disease ankle and ankle pain, nor his hearing testimony in which he described experiencing ankle pain that has continued since his time in service. On remand, an addendum opinion should be obtained as to whether or not any currently diagnosed right and/or left ankle disability is related to the Veteran's time in service, to include as related to his treatment for left ankle injuries in service as reflected in his STRs. The Veteran underwent a VA contract back examination in April 2021. The VA contract examiner determined that it was less likely than not that the Veteran's lumbosacral strain was incurred in or caused by service. The VA contract examiner stated that the Veteran's low back disability was acute only and that there was "no evidence of chronicity of care and symptoms are subjective only. According to the Veteran he was not seen by a medical professional for his back condition after being discharged." The Board finds this opinion is inadequate for adjudication purposes because it did not consider the Veteran's VA treatment records noting treatment for complaints of low back pain including prescription medication, nor his hearing testimony in which he described experiencing back pain that has continued since his time in service. On remand, an addendum opinion should be obtained as to whether or not any currently diagnosed back disability is related to the Veteran's time in service. In April 2021, the Veteran underwent a VA contract shoulder and arm examination. The VA contract examiner determined that it was less likely than not that the Veteran's right and/or left shoulder disability was incurred in or caused by service. The VA contract examiner stated that the Veteran reported he started experiencing symptoms while in service, however the Veteran's medical records are "silent for right shoulder and left shoulder condition. The Veteran also mentioned de did not seek a medical evaluation while in service." The Board finds this opinion is inadequate for adjudication purposes because it did not consider the Veteran's STRs reflecting treatment for left shoulder strain, his VA treatment records noting treatment for complaints of shoulder pain, nor his hearing testimony in which he described experiencing shoulder pain that has continued since his time in service. On remand, an addendum opinion should be obtained as to whether or not any currently diagnosed right and/or left shoulder disability is related to the Veteran's time in service. The matters are REMANDED for the following action: 1. Return the file VA contract examiner who provided the April 2021 VA skin examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed skin disorder, to include acne, is related to the Veteran's time in service, to include consideration of the Veteran's documented in-service treatment for acne. The examiner must address the Veteran's VA treatment records noting treatment for papules and the Veteran's statements regarding symptoms including bumps on his chest. A full and complete rationale for all opinions expressed is required. 2. Return the file VA contract examiner who provided the April 2021 VA ankles examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and/or left ankle disability is related to the Veteran's time in service, to include as due to marching and running while wearing rucksacks, and/or injuries sustained while playing basketball. The examiner must address the Veteran's VA treatment records noting treatment for ankle pain and the Veteran's statements regarding experiencing ankle pain which has continued since his time in service. A full and complete rationale for all opinions expressed is required. 3. Return the file VA contract examiner who provided the April 2021 VA back examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed back disability is related to the Veteran's time in service, to include as due to marching and running while wearing rucksacks. The examiner must address the Veteran's VA treatment records noting treatment for low back pain and the Veteran's statements regarding experiencing back pain which has continued since his time in service. A full and complete rationale for all opinions expressed is required. 4. Return the file VA contract examiner who provided the April 2021 VA shoulder examination and opinion. The claims file must be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determines another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and/or shoulder disability is related to the Veteran's time in service, to include as due to marching and running while wearing ruck sacks and/or a shoulder injury sustained while playing basketball in service. The examiner must address the Veteran's VA treatment records noting treatment for shoulder pain and the Veteran's statements regarding experiencing shoulder pain which has continued since his time in service. A full and complete rationale for all opinions expressed is required. 5. Then, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.