Citation Nr: 22017149 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-14 406 DATE: March 24, 2022 ORDER Service connection for a circulatory disorder is denied. Service connection for muscle or soft tissue tears is denied. REMANDED Entitlement to service connection for arthritis is remanded. FINDINGS OF FACT 1. Any current circulatory disorder or functional impairment of earning capacity from it was not manifest in active service and is unrelated to active service. 2. Any current muscle or soft tissue tears or functional impairment of earning capacity from them, except for those already recognized for the Veteran's already service connected lumbosacral strain and cervical strain, were not manifest in active service and are unrelated to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a circulatory disorder have not been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for muscle or soft tissue tears, other than for the already service connected lumbosacral and cervical strains, have not been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May to July 2010 and from February 2019 to February 2020, with service in Kuwait in 2019 and in Iraq in 2019 and 2020. She had active duty for training including from May to August 1, 2009, from July to August 2012, and in January 2013. We thank her for her service. She appeals from February 2016 agency of original jurisdiction (AOJ) rating decisions based on claims being treated as filed in September 2015. The appeals at issue were remanded in August 2021 and are now ready for appellate review. The appeal for service connection for tinnitus which was remanded then has since been granted by the AOJ, and so it is no longer on appeal. Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in active service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. §§ 3.317(a)(2)(i)(A). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) 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; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term 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). For purposes of this section, "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). Circulatory Disorder The Veteran appeals for service connection for a circulatory disorder. Based on the evidence of record, the Board concludes that service connection is not warranted for any current circulatory disorder. The persuasive evidence indicates that the Veteran did not have a circulatory disorder in service and does not have one currently, or functional impairment of earning capacity from one, and that any such disorder is not a medically unexplained chronic multisymptom illness and is unrelated to active service. Service treatment records do not report one, and no circulatory disorder has been diagnosed currently, including in the VA treatment records of record. Additionally, at the time of a VA examination in December 2016, it was indicated that the Veteran never had been diagnosed with a circulatory/vascular/artery/vein condition, and she had no pertinent physical findings, signs, or symptoms. Furthermore, on VA examination in November 2021, it was indicated that the Veteran has never had a vascular disease, arterial or venous. None were diagnosed. Additionally, on that VA examination in November 2021, there were no positive findings in any of the Veteran's extremities. She had no signs or symptoms of peripheral arterial disease or thromboangiitis obliterans. She had no aneurysms and did not have Raynaud's disease or syndrome. She did not have arteriovenous fistula, angioneurotic edema, or erythromelalgia, or any findings indicative of them, and there were no cardiovascular symptoms or involvement. Her peripheral pulses in her upper and lower extremities were all normal. The VA examiner indicated that there was no circulatory disorder diagnosis because there were no findings, signs, or symptoms to support a diagnosis. The VA examiner also indicated that the claimed circulatory disorder did not impact the Veteran's ability to perform any type of occupational tasks, such as standing, walking, lifting, sitting, etc. The same VA examiner noted in a November 2021 VA medical opinion that the Veteran indicated in October 2015 that she had problems with numbness and circulation in her legs while driving for more than 30 minutes; and that if she lay in bed on her back, her legs would fall asleep and the circulation in her feet would slow down significantly, making her feet numb and very cold. The VA examiner noted that a VA examiner in 2016 indicated that the Veteran never had a vascular disease, arterial or venous. The VA examiner in November 2021 opined that the Veteran's complaints of problems with numbness and circulation in her legs while driving for more than 30 minutes and of her legs falling asleep and that the circulation in her feet would slow down if she lay on her back, making her feet numb, were entirely consistent with her diagnosis of lumbar radiculopathy. The examiner opined that the Veteran's described symptoms were less likely than not related to circulation issues. The VA examiner indicated that the probability of the Veteran having a positive ankle brachial index test to clearly substantiate a circulatory disorder would be essentially zero based on her age, sex, and clinical history; and her peripheral pulses were all normal. As for the Veteran's July 2016 report that her hands were always cold as well, due to poor circulation in them, the Veteran's service connected right and left upper extremity radiculopathy would account for that, by way of parallel reasoning from the November 2021 VA medical opinion attributing her foot symptoms to lumbar radiculopathy. This evidence persuasively shows that the Veteran does not have a circulatory disorder or functional impairment of earning capacity from one. Instead, it clearly indicates that what she characterizes as circulatory symptoms are due to lumbar radiculopathy which has already been service connected and is being compensated. While the Veteran may feel that she has a circulatory disorder, she is not competent to opine on this matter, as she is a layperson and diagnosing a circulatory disorder requires medical training and understanding which she, as a layperson, does not have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no doubt that she has symptoms of numbness and coldness in her lower extremities, but these have been explained by her lumbar radiculopathy. Since her symptoms are explained by her lumbar radiculopathy, which is a known clinical diagnosis, and the symptoms have a conclusive pathology or etiology, and they are already service connected as part of the Veteran's service connected lumbar radiculopathy, service connection may not be granted for them pursuant to 38 C.F.R. § 3.317, outlined above, concerning certain disabilities occurring in Gulf War Veterans. It is clear that she cannot have a medically unexplained chronic multisymptom illness. The examiner in November 2021 indicated that she had no vascular disease. Both VA examiners indicated that she did not have any signs or symptoms of a circulatory disorder, her pulses were normal, and objective indications of a chronic disability must include signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that were capable of independent verification were requirements for a finding of one. These were not demonstrated. Accordingly, the criteria for service connection for a circulatory disorder have not been met, and the claim is denied. Muscle or Soft Tissue Tears The Veteran appeals for service connection for muscle or soft tissue tears. Based on the evidence of record, the Board concludes that service connection is not warranted for muscle or soft tissue tears, other than for the lumbosacral and cervical strain disabilities which are already service-connected. (A strain is a tearing of muscles and tendons, and both muscles and tendons are soft tissues. Therefore, the Veteran's lumbosacral spine and cervical spine muscle/tendon tears are already service connected.) The persuasive evidence indicates that the Veteran did not have a muscle or other soft tissue tear in active service (other than to her lumbosacral spine and/or cervical spine muscles/tendons, and lumbosacral and cervical muscle injuries are already service connected as part of her lumbosacral strain and cervical strain disabilities). The persuasive evidence also indicates that she does not have such an alternative muscle or soft tissue tear disability currently, or functional impairment of earning capacity from one. No other muscle or soft tissue tears, other than to her lumbosacral or cervical spine, have been claimed or diagnosed. If she does have alternative muscle or soft tissue tears, they are not shown in service treatment records, and there is no evidence that they were manifest in active service or are related to active service. The Veteran indicated in March 2014 that she had a shoulder muscle cramp at that time, but service connection was denied for a shoulder disorder in August 2017, after a VA examiner in January 2017 indicated that the Veteran's reference to a shoulder problem in service was actually a reference to her interscapular region of the spine. The cervical spine is part of the interscapular region, and thus, her claim for service connection for what she was calling a shoulder muscle cramp was actually one for cervical strain which had already been service connected in December 2016. At the time of VA examinations in December 2016, upper and lower extremity muscle strength testing was normal and there was no muscle atrophy, suggesting no muscle or other soft tissue tears in the extremities. The examiner stated that not only did the Veteran deny a muscle condition such as a soft tissue tear, but there was also no objective evidence whatsoever of a muscle condition such as a soft tissue tear, other than regarding the Veteran's cervical and lumbar spine conditions. No evidence indicated that any current muscle or soft tissue tear, other than to the Veteran's lumbosacral or cervical spine, was manifest in active service or is related to active service, including through secondary service connection. (The cervical strain was service connected as secondary to the Veteran's lumbosacral strain disability in December 2016.) Since her lumbosacral and cervical spine muscle/tendon tears are known and clinically diagnosed disabilities, and the symptoms have conclusive pathology or etiology, and are already service connected as part of the service connected lumbosacral strain and cervical strain disabilities, service connection may not be granted for them pursuant to 38 C.F.R. § 3.317, concerning certain disabilities occurring in Gulf War Veterans. As for the Veteran's report in July 2016 that she has bad muscle pain all over, preventing her from enjoying life, we construe this to be part of her muscle and soft tissue tear claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, service connection cannot be granted for this pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.303, as the persuasive evidence indicates that there is no currently diagnosed disability or functional impairment of earning capacity as a result of this, and that any such disability is unrelated to active service. Service treatment records do not show it, it is not diagnosed, and no objective, supported evidence indicates that there is functional impairment of earning capacity from it or competently relates it to active service. To the contrary, the Veteran's upper and lower extremity muscles were all normal on VA examinations in December 2016. Additionally, the persuasive evidence indicates that this claimed disability cannot be a medically unexplained chronic multisymptom illness which is permitted service connection pursuant to 38 C.F.R. § 3.317, as such requires 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, and these are not present. The VA examiner indicated through the December 2016 VA examination reports that there was no objective evidence whatsoever of a muscle condition, other than concerning the Veteran's lumbosacral and cervical spine musculature. Additionally, the complaints at the time were only of neck pain and back pain, the Veteran's muscles had 5/5 strength throughout the upper and lower extremities, and there was no muscle atrophy or other suggestion of any muscle impairment, other than that associated with the Veteran's lumbosacral and cervical spines. Accordingly, the criteria for service connection for muscle or soft tissue tears have not been met, and the claim is denied. REASONS FOR REMAND The Veteran appeals for service connection for arthritis. The AOJ last denied this claim in the December 2021 supplemental statement of the case, stating in part that recent records did not show arthritis. However, a September 2021 VA medical record noted that cervical spine imaging showed that the Veteran had degenerative joint disease at C6-7. The Veteran is not currently service connected for cervical spine degenerative joint disease, and so this issue is for consideration as part of the Veteran's appeal for service connection for arthritis. Since the Veteran is service connected for lumbosacral strain with intervertebral disc syndrome and spondylolisthesis and for cervical strain as related to it (see the December 2016 AOJ rating decision), that raises the questions of whether her cervical spine degenerative joint disease at C6-7 is caused or aggravated by either her service connected lumbosacral strain disability or her service connected cervical spine disability. The Board finds that a VA examination pursuant to VA's duty to assist in 38 C.F.R. § 3.159 is required as indicated below. The Board next notes that the Veteran complained of right hip pain in November 2021 and that X rays were ordered for the right hip at that time. Hip X rays are normally taken to see if there is arthritis present, and the Veteran's claim for service connection for arthritis includes a claim for service connection for any current right hip disability. The X ray reports are not of record, these should also be obtained to comply with VA's duty to assist the Veteran with this claim pursuant to 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Make arrangements to obtain the VA report for the X rays of the Veteran's right hip which were ordered in November 2021, and any additional relevant records. 2. After the above development is completed, schedule the Veteran for an appropriate VA examination or medical opinion to determine the nature and likely etiology of her current C6-7 degenerative joint disease and any current right hip disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Is there about a 50 percent or higher degree of probability that the Veteran's current C6-7 arthritis was incurred in or aggravated by active service or manifest within 1 year of her February 2020 separation from active service? (b) Is there about a 50 percent or higher degree of probability that the current C6-7 arthritis was caused by the Veteran's service-connected lumbosacral strain with intervertebral disc syndrome and spondylolisthesis and/or by her cervical strain disability? (c) Is there about a 50 percent or higher degree of probability that the current C6-7 arthritis is aggravated by the Veteran's service-connected lumbosacral strain with intervertebral disc syndrome and spondylolisthesis and/or her cervical strain disability? (d) Is there about a 50 percent or higher degree of probability that the Veteran has any current right hip disability (specify any right hip diagnosis) which was incurred in or aggravated by active service or manifest within 1 year of her February 2020 separation from active service, to include due to exposures in Southwest Asia? The opinion should also address the matter of whether any current right hip disability is a disease with a clear and specific etiology and diagnosis; or, alternatively, part of a medically unexplained chronic multisymptom illness (a diagnosed illness without conclusive pathophysiology or etiology). If aggravation is found for the cervical spine arthritis disability, due to the service connected lumbar spine or cervical spine disabilities mentioned above, the examiner should quantify the degree of aggravation, if possible. The examiner should answer questions (a), (b), (c), and (d) separately, completely, and in detail, to help ensure that each is fully, clearly, and adequately answered, and should similarly furnish detailed reasons for each opinion, specifically discussing any relevant medical evidence and principles, to the extent appropriate. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.