Citation Nr: 0709620 Decision Date: 04/02/07 Archive Date: 04/16/07 DOCKET NO. 03-32 870 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for left shoulder myositis. 2. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1954 until September 1957. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a November 2002 rating decision of the VA Regional Office (RO) in Philadelphia, Pennsylvania that denied service connection for disabilities that included chronic left shoulder myositis and fibromyalgia. This case was remanded by the Board for additional development in April 2006. FINDINGS OF FACT 1. The veteran does not have left shoulder myositis that is related to his military service. 2. The veteran does not have fibromyalgia that is related to his military service. CONCLUSIONS OF LAW 1. The veteran does not have left shoulder myositis that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2006). 2. The veteran does not have fibromyalgia that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr 05, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in June 2002 and April 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured in the process of previous remand and RO actions. Id.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran either identify or submit any evidence or information he had pertaining to his claim. The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its reviews of each issue, and the text of the relevant portions of the VA regulations. The veteran was also specifically apprised of the criteria for assigning disability ratings or for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), VA and private medical records, and Social Security Administration (SSA) records, and secured an examination in furtherance of his claim. VA has no duty to inform or assist that was unmet. The veteran's SMRs are of record, and they show that he was seen for a pulled a muscle on January 31, 1957, and that on February 19, 1957, he complained that his shoulder still hurt. The records also show that the veteran was involved in a slow speed truck/train crash on February 26, 1957, in which the veteran was driving the truck. Contemporaneous treatment records show no treatment related to this accident, but a Clinical Record Cover Sheet, dated March 30, 1957, indicates a diagnosis of myositis, acute, left shoulder, organism unknown. The veteran's discharge examination reported no abnormalities other than comments related to his tonsils and a small scar, and the veteran himself denied other illness, injury, operations, or hospitalization of significance. In an April 2003 Statement In Support of Claim, the veteran opined that the train accident may have been the start of his claimed disabilities. Records provided by the Social Security Administration (SSA) indicate that the veteran was evaluated in December 1977 as being disabled under the laws administered by SSA based on pain associated with his neck. SSA disability was terminated in October 1982 based on medical evidence that the veteran was again able to do substantial gainful work in August 1982. The veteran was afforded a VA examination in October 2006 for the purpose of determining whether his claimed disabilities are related to his military service. The examiner noted the veteran's in-service injury to the left shoulder, and that, as reported by the veteran, over the past 50 years he has developed some fibromyalgia with a systemic problem involving total body pain. The veteran reported that he has pain, soreness, and tenderness at the left shoulder, and that repetitive use and weather changes bother and irritate it. There had been no surgery, and the veteran was not using any assistive devices. Normal daily activity was reported as hard and difficult because of the pain. On examination, the veteran's left shoulder showed abduction to 90 degrees, forward flexion to 90 degrees, and internal and external rotation to 90 degrees, with pain throughout the range of motion. Repetitive use caused an increase in ache and pain, soreness, tenderness, and fatigability. No flare- ups were noted, but the veteran reported there are times when pain in all joints comes and goes because of the fibromyalgia. The examiner diagnosed left shoulder myositis and fibromyalgia. The examiner noted that fibromyalgia is a very enigmatic diagnosis, and that nobody knows the etiology of it. Because the veteran's "original left shoulder condition started way back in the 50's," the examiner stated that whether or not there is any current left shoulder myositis or fibromyalgia that is related to the remote in-service injury is purely speculative. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, there is medical evidence of current disabilities as claimed, and there is medical evidence of an incident in service in 1957. However, there is no medical evidence of a nexus between the current disability and the in-service incident. The October 2006 VA examiner determined, based on all of the medical evidence of record, that to say that there was, or was not, a medical nexus between the currently diagnosed disorders and the veteran's military service would require speculation. Absent medical evidence of a nexus between the current disabilities and the in-service incident, service connection must be denied. The veteran contends that his current disabilities may be the result of the in-service train accident or diagnosed myositis. However, there is no evidence of record showing that the veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to the etiology of his disabilities. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2006). Consequently, the veteran's own assertions as to the etiology of his left shoulder myositis and fibromyalgia have no probative value. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against these service connection claims. The veteran's current left shoulder myositis or fibromyalgia is not traceable to disease or injury incurred in or aggravated during active military service. The Board notes that the veteran's accredited representative contends that the VA examiner's opinion was not "properly formatted" in that it did not express an opinion in terms of "is due to," "is more likely than not," "is at least as likely as not," or "is not as likely as not." Moreover, it is contended that, absent a "properly formatted" medical opinion that neither proves nor disproves that the veteran's disabilities are related to military service, the proof settles to equipoise, and that the result then somehow automatically becomes "as likely as not" that each disability was the result of military service. The veteran's representative's argument is imaginative, but unavailing. The examiner's opinion was not improperly formatted. The examiner simply could not provide any opinion as to whether the veteran's disabilities are related to his service without resorting to speculation. It has long since been established by VA regulation and relevant case law that service connection may not be based on a resort to speculation or even remote possibility, and that, therefore, medical opinions that are speculative, general, or inconclusive in nature cannot be used to support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Bostain v. West , 11 Vet. App. 124, 127 (1998). Thus, because the examiner could not provide a medical nexus opinion without resorting to speculation, it is appropriate that he did not speculate. As noted, without medical evidence (opinion) of a nexus between the current disabilities and military service, service connection must be denied. As for the argument that absent a medical nexus opinion the evidence defaults to equipoise, and then somehow the result automatically becomes "as likely as not" that the disabilities were the result of service, this argument also fails. Recalling that the missing element here is the third element, medical evidence of a nexus between the current disabilities and military service, the Board must weigh, as it has, all of the probative evidence to determine whether there is an approximate balance of negative and positive evidence on the merits as to this specific question. Here, as noted above, the Board has found that there is not an approximate balance of negative and positive evidence. In fact, there is simply no probative medical evidence at all that relates to the nexus question. The only "evidence" that the veteran's current disabilities are related to his military service are the contentions of the veteran himself. As previously noted, there is no evidence that the veteran is qualified to render competent medical opinion as to the etiology of his disabilities, and his assertions in this regard therefore have no probative value. Moreover, nowhere in the record is there any probative medical evidence or opinion that either claimed disability is related to service. This is manifestly different from there being probative medical evidence both for and against the claim, which evidence might be found to be in relative equipoise. Here, it is the absence of medical evidence showing chronic disability at separation from service or for many years thereafter that weighs against the claims of service connection and is uncontradicted by any affirmative evidence of a relationship between current disability and event coincident with service. To summarize once again, on the basis of the foregoing analysis, and after consideration of all the evidence, the Board finds that, absent medical evidence of a nexus between the current disabilities and the in-service incident, the preponderance of the evidence is against these service connection claims, and they are denied. ORDER Entitlement to service connection for left shoulder myositis is denied. Entitlement to service connection for fibromyalgia is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs