Citation Nr: 23019986 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 15-15 980 DATE: March 31, 2023 ORDER Entitlement to service connection for disability manifested by multiple joint pain, to include fibromyalgia, is denied. FINDING OF FACT A disability manifested by multiple joint pain to include fibromyalgia not related to the Veteran's service-connected chronic fatigue syndrome is not currently manifest and did not manifest at any point during the appeal period. CONCLUSION OF LAW The criteria for service connection for a disability manifested by multiple joint pain, to include fibromyalgia are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to February 1992, which included service in the Southwest Asia theater of operations during the Persian Gulf War. His awards include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision. The Board remanded the Veteran's appeal in March 2019. The Board also remanded a claim of service connection for a gastrointestinal disability to include irritable bowel syndrome. In a subsequent rating decision dated July 2020, this claim was granted (characterized as chronic diarrhea). In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board notes that the Veteran was scheduled for a hearing with a Veterans Law Judge (VLJ) to take place in February 2023. However, the Veteran cancelled his hearing request and has not requested another hearing. Also, the Veteran's prior representative withdrew his representation in September 2019, prior to recertification of this case back to the Board. The Veteran did not appoint new representation and has been self-represented since the withdrawal. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury will be service connected. See Spicer v. McDonough (No. 2022-1239, Court of Appeals for the Federal Circuit, March 8, 2023). The Veteran contends that he has a disability manifested by multiple joint pain, to include fibromyalgia, that is related to service, in particular as due to his service in Southwest Asia during the Persian Gulf War. The Board acknowledges that the Veteran's service personnel records document his service in Southwest Asia during the Persian Gulf War and receipt of the Combat Action Ribbon. Although the Board acknowledges the Veteran's service in Southwest Asia during the Persian Gulf War, the evidence of record establishes that the Veteran does not have a current disability manifested by multiple joint pain, to include fibromyalgia, that is not already contemplated by the service connected chronic fatigue syndrome. The Board initially notes that reports of June and October 2014 VA chronic fatigue syndrome examinations reflect that the Veteran's joint pain may have been associated with his chronic fatigue syndrome. The Veteran was also afforded a VA fibromyalgia examination in June 2014 and the examiner concluded that the Veteran's signs and symptoms recorded as fatigue, sleep disturbance, headache, depression, and depression did not meet the criteria for fibromyalgia. Regardless, the examiner did not otherwise provide any opinion as to the etiology of the Veteran's joint pain. Based on these ambiguities, the Veteran was provided another VA examination in December 2019. Notably, although noting signs and symptoms of widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headache, depression, and irritable bowel syndrome, the VA examiner declined to diagnose the Veteran with fibromyalgia. In a June 2020 opinion report, the same examiner opined that according to records that were reviewed, there was no evidence that the Veteran's multiple joint pains started or manifested during active service or manifested within one year after separation from service. She further opined that the Veteran's fibromyalgia is less than likely as not related to the service-connected chronic fatigue syndrome. However, it was unclear as to how the examiner determined the Veteran had fibromyalgia when she previously reported in the December 2019 report that he did not. Thereafter, in a July 2020 addendum report, the examiner clarified that the Veteran's signs and symptoms recorded in previous examinations and evaluation reports were attributable to the service-connected chronic fatigue syndrome. Indeed, the examiner did not find any disability manifested by fibromyalgia or arthritis. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current disability manifested by multiple joint pain to include fibromyalgia that are not already associated with the Veteran's service-connected chronic fatigue syndrome. In this regard, the Board finds it highly probative that the December 2019 VA examiner in particular ultimately opined that the Veteran does not have a current disability manifested by multiple joint pain to include fibromyalgia that are not already associated with the Veteran's service-connected chronic fatigue syndrome. In addition, although the Veteran served in the Persian Gulf, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of a chronic disability, and there is not shown to be an undiagnosed or a medically unexplained chronic multi-symptom illness that are not already attributable to the Veteran's service-connected chronic fatigue syndrome. Such findings were indicated in the July 2020 VA opinion report. There are no findings to the contrary. The Board has considered the Veteran's statements that he has a disability manifested by multiple joint pain to include fibromyalgia. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a current disability manifested by multiple joint pain to include fibromyalgia. The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the most recent VA opinions from 2019 with the 2020 addendum. Because the Veteran served in Southwest Asia, the Board has considered the provisions of 38 U.S.C. § 1117. The law provides for a grant of service connection for a qualifying disability that is due to an undiagnosed illness or an unexplained multisystem illness. Here, the Veteran has reported multiple joint pain. However, disability is not shown in this case that is not already attributable to the Veteran's service-connected chronic fatigue syndrome. There are no signs of objective evidence perceptible to an examining physician or non-medical indicators that are capable of independent verification. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a disability manifested by multiple joint pain to include fibromyalgia. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. The evidence is not in approximate balance-i.e., "nearly equal". Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Rather, as discussed in detail above, the evidence against the claim is entitled to far more evidentiary weight than the favorable evidence. This means the evidence persuasively favors finding against the claim, and it is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.