Citation Nr: 22044596 Decision Date: 08/05/22 Archive Date: 08/05/22 DOCKET NO. 16-39 950 DATE: August 5, 2022 ORDER Entitlement to service connection for multi-joint and muscle pain, claimed as a Persian Gulf War undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI), is denied. FINDING OF FACT The evidence is persuasively against finding that the Veteran has an undiagnosed illness or MUCMI characterized by multi-joint and muscle pain or that the Veteran's subjective, intermittent symptoms of multi-joint and muscle pain began during active service, or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for multi-joint and muscle pain, claimed as a Persian Gulf War undiagnosed illness or MUCMI, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to June 1994. He testified before the undersigned Veterans Law Judge (VLJ) during a February 2019 videoconference hearing and a transcript is of record. Most recently, the Board denied the above-listed claim in a June 2021 Decision. The Veteran appealed that portion of the decision to the United States Court of Appeals for Veterans Claims (CAVC), but did not appeal the resolution of the Veteran's other claims adjudicated in that decision. The CAVC issued an order granting the parties' February 2022 Joint Motion for Partial Remand (JMPR) to vacate the portion of the June 2021 Board decision denying the above-referenced claim and remanded the case back to the Board for compliance with the JMPR. The Veteran seeks entitlement to service connection for multi-joint and muscle pain which he alleges is related to exposures during his service in in the Persian Gulf War. 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). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Objective indications of a qualifying chronic disability include both signs and symptoms, 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). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Here, the Veteran had active service in the Southwest Asia theater of operations from February to March 1991. See DD Form 214 and other service personnel records. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Summary of Evidence The Veteran contends that he has "been having... joint and muscle pain pretty much for ever since I got out of active duty." February 2019 Board Hearing Tr. at 4. He contends that the joint and muscle pains are one aspect of "multi-symptom issues" that he has had "since at least '99" and which are related to his service in the Southwest Asia theater of operations. Id. at 3. The VA examiner who performed the January 2020 VA Examination (Gulf War) noted the Veteran's subjective complaints of "stiffness/tightness in his joints but not pain, does have aching of his joints, worse when it is colder out and better when it is warmer out, knees, ankles, low back, elbows and neck." The examiner further noted the Veteran's report that the symptoms "wax and wane in these areas" and the symptoms started in 1999. There were "no abnormalities of the hands, feet, joints, muscles, or spine" on the Gulf War examination. In a January 2020 VA examiner's opinion, the examiner noted that the Veteran's primary care provider had diagnosed him with "chronic osteoarthritis" but that it was unclear from the treatment records what information the provider used to make that diagnosis aside from the Veteran's subjective report of "multiple joints pain but no redness of edema" at the time of the visit. The examiner stated that she was unable to confirm the diagnosis of osteoarthritis. The examiner further opined that the Veteran did not have a diagnosis of fibromyalgia. The examiner noted that the treatment records sometimes include the Veteran's report of aching in his joints, but other times contain his denials of joint pains including "as recently as 1/28/19 Local PCP visit" which also noted working out "up to 4 miles per day and weight lifting." Despite the Veteran's report of stiffness/tightness/aching in his joints, the musculoskeletal examination in January 2020 "was not noted to cause any joint pain of these joints and the ROM of these joints was normal except elbow flexion, where flexion was noted to be impeded by his very developed biceps muscle running into his very developed forearm muscle." The examiner therefore concluded that the musculoskeletal examination was normal, and no joint condition was diagnosed. The examiner further opined in an October 2020 VA Addendum Opinion that the Veteran reported that he lifted weights a few times a week and would run on a treadmill three times a week and that his ability to "do that type of exercise had improved over time." The examiner noted her inability to confirm a diagnosis of chronic osteoarthritis and that she did not note a diagnosis of fibromyalgia. She also noted that, despite the Veteran's subjective reports of joint and muscle symptoms, the examination did not reveal any joint pain and ranges of motion were normal (except the elbow flexion limited due to a well-developed biceps muscle). The examiner acknowledged the February 2010 VA primary care provider's notation of "? Gulf War syndrome" and noted that there was no definitive diagnosis. The examiner further opined that she "was unable to find objective evidence of any joint pathology in relation to this Veteran's complaints of intermittent joint [symptoms] and so a pathologic joint condition was not [diagnosed]." The examiner further opined that the Veteran "did not have objective evidence of a pathological [diagnosis] of his joints or muscle or soft tissue to date" (specifically including the treatment records in the claims file) "to account for his subjective reports of intermittent multi-joint pain symptoms." The examiner explained that she did not provide a nexus opinion due to the lack of any objective signs or symptoms of a joint or muscle disability. The examiner emphasized that, in her experience, "intermittent stiffness/aching of joints and the tissues/muscles around joints, is frequently a physiological response to exercise and not a pathological finding, in those who are very physically active, as described by this Veteran and noted above." She went on to opine that a diagnosis of osteoarthritis could not been confirmed; however, even if a diagnosis of osteoarthritis has been made, it "would be considered to be less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia." The examiner also opined that the Veteran's reported symptoms were not consistent with a diagnosis of fibromyalgia. Analysis As discussed above, treatment records contain a diagnosis of osteoarthritis. See February 2014 VA Primary Care Note (diagnosing "chronic osteoarthritis" during annual exam after the Veteran requested a diagnosis of Gulf War syndrome with a cluster of symptoms). While the VA examiner was not able to confirm the primary care physician's diagnosis, the Board notes that assuming the diagnosis is accurate, the Veteran's symptoms have been attributed to a diagnosed condition, so it cannot be considered an undiagnosed illness. To the extent the Veteran has osteoarthritis, however, it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). The VA examiner provided an alternative diagnosis of soreness associated with frequent, vigorous exercise. See October 2020 VA Addendum Opinion. The examiner did not provide a formal diagnosis as the Veteran's symptoms are common, non-pathological findings associated with frequent, vigorous exercise. She explained that intermittent stiffness and aching of joints and tissues/muscles around the joint "is frequently a physiological response to exercise and not a pathological finding." The Board finds that, within the meaning of the regulations, the Veteran's symptoms are a diagnosed condition because they are a common, known result associated with vigorous exercise and the VA examiner expressly attributed his symptoms to that cause. While the joint and muscle pain related to the Veteran's frequent, vigorous exercise is not an undiagnosed illness, it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). With respect to the diagnosis of osteoarthritis, treatment records and the VA examinations indicate that osteoarthritis has a partially understood etiology and at least partially understood pathophysiology. With respect to the etiology of the Veteran's osteoarthritis, the condition is a well-known result of aging and overuse of the joints, such as with frequent, vigorous exercise. With respect to the pathophysiology of the Veteran's osteoarthritis, again, it is a well-known condition with a well-known pathophysiology. There is no contrary medical evidence of record suggesting that this Veteran's osteoarthritis has either an etiology or pathology that is not understood. Therefore, to the extent the Veteran's claimed symptoms are attributable to osteoarthritis, osteoarthritis is not considered a MUCMI and presumptive service connection is not warranted. Similarly, with respect to the soreness associated with frequent, vigorous exercise, the VA examiner explained the etiology and pathophysiology of the condition. See October 2020 VA Addendum Opinion. With respect to the etiology of the Veteran's joint and muscle aching, stiffness, and soreness, she identified the Veteran's frequent, vigorous exercise as the cause of that condition. With respect to the pathophysiology of the condition, the VA examiner noted that the condition is a "a physiological response to exercise and not a pathological finding", such that the pathophysiology of the condition is at least partially understood. Therefore, to the extent the Veteran's claimed symptoms are attributable to soreness associated with frequent, vigorous exercise, osteoarthritis is not considered a MUCMI, and presumptive service connection is not warranted. The Board finds this opinion probative because the VA examiner based her opinion on an accurate medical history and detailed physical examination. She discussed relevant treatment records, pertinent findings on physical examination, the Veteran's description of his symptoms, and medical principles that supported her conclusion. The Veteran has objected to this finding as "just making assumptions", see January 2021 Correspondence, but the finding is explicitly based on the absence of any objective verification of the complaints, a physical examination failing to show any pathology, functional limitations, or abnormalities, and the examiner's medical education, training, and experience. The Veteran has not submitted any competent evidence reaching a contrary conclusion or, in fact, questioning the validity of the VA examiner's opinion. The Board assigns significant probative value to the VA examiner's opinion regarding the etiology of the subjective, intermittent complaints of multi-joint and muscle pain. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, as both the etiology and the pathophysiology of the Veteran's soreness associated with frequent, vigorous exercise are at least partially understood, it is not considered a MUCMI, and presumptive service connection is not warranted. The Board also notes that the Board has previously determined that the other symptoms alleged by the Veteran, including irritable bowel syndrome (IBS) and skin symptoms, were attributable to definite diagnoses and are either already service-connected (e.g., IBS) or were not MUCMI (e.g., skin symptoms, insomnia). The Veteran did not appeal those determinations and they are final. With respect to direct service connection, the VA examiner provided a negative opinion both respect to the soreness due to exercise and the osteoarthritis. The VA examiner opined: "[E]ven if a dx of osteoarthritis had been made, this would be considered a disability pattern (4) condition, and would be considered to be less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia." Reading the opinion in the context of the entire record, including the VA examiner's and treating physician's prior statements and the treatment records, the VA examiner's opinion is based on an accurate history and contains sufficient rationale to warrant probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. There is no contrary opinion. The VA examiner noted that the medical evidence indicates that the subjective, intermittent symptoms of soreness are related to post-service exercise and are less likely than not due "a specific exposure event experienced by the Veteran during service in Southwest Asia." See October 2020 VA Addendum Opinion. The opinion is thorough, based on an accurate history, and contains a convincing rationale linking the medical facts to the conclusion. It is entitled to significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran believes his joint and muscle pain is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, the pathology of joint and muscle pain, the interpretation of complicated diagnostic medical testing, and education, training, and/or experience with respect to diagnosing and determining the etiology of joint and muscle conditions. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the VA examiner. The claims file does not contain any favorable opinion relating the Veteran's subjective complaints of multi-joint and muscle pains to his active service. The greater weight of the evidence is against finding that the Veteran has an undiagnosed illness or MUCMI characterized by multi-joint and muscle pain or that the Veteran's subjective multi-joint and muscle pain was incurred in or is otherwise related to his active service. The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for multi-joint and muscle pain, claimed as a Persian War undiagnosed illness or MUCMI, is denied. Duties to Notify and Assist The Board acknowledges the Veteran's January 2021 Correspondence in which he expresses disagreement with the VA examiners' conclusions, particularly including attributing his claimed symptoms to diagnosed illnesses rather than concluding the Veteran has a MUCMI. Disagreement with the VA examiner's conclusions does not render the opinions inadequate. To the extent the Veteran has argued that the VA examiners' conclusions are inadequately explained, the Board disagrees. First, the law imposes no reasons-and-bases requirement on examiners. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). Second, the Board has explained above why the VA examiners' opinions are entitled to probative weight, including because they contain adequate reasoning which links the facts of this case to the conclusions via medical principles. While the Veteran cited an internet article that summarizes the regulations and otherwise discusses MUCMIs in general terms, the article is not probative of whether this Veteran's specific symptomatology warrants a diagnosis of an MUCMI. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Again, the fact that the Veteran disagrees with the VA examiners' interpretation of the medical data in this case and their opinions regarding the proper diagnosis of the symptoms does not render the assistance provided inadequate. The Veteran has not raised any other specific issues with the duty to notify or duty to assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.