Citation Nr: 0626724 Decision Date: 08/28/06 Archive Date: 09/06/06 DOCKET NO. 04-36 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic fatigue syndrome, including the issue of whether service connection may be granted. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for fibromyalgia, including the issue of whether service connection may be granted. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from May 1991 until July 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Evidence of records discloses the veteran withdrew the claim for service connection for carpal tunnel syndrome by a statement dated in March 2006. As such this issue is not presently before the Board. FINDINGS OF FACT 1. The evidence associated with the claims file subsequent to the September 1997 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for chronic fatigue syndrome and raises a reasonable possibility of substantiating the claim. 2. Symptoms of chronic fatigue syndrome were manifested during service and continued until the veteran's diagnosis of the disease. 3. The evidence associated with the claims file subsequent to the September 1997 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for fibromyalgia and raises a reasonable possibility of substantiating the claim. 4. Symptoms of fibromyalgia were manifested during service and continued until the veteran's diagnosis of the disease. CONCLUSIONS OF LAW 1. Evidence received since the final September 1997 determination wherein the RO denied reopening of the veteran's claim of entitlement to service connection for chronic fatigue syndrome is new and material, and the veteran's claim is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.104, 3.156, 3.159, 20.1103 (2005). 2. The criteria for a grant of service connection for chronic fatigue syndrome have been approximated. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2005). 3. Evidence received since the final September 1997 determination wherein the RO denied reopening of the veteran's claim of entitlement to service connection for fibromyalgia is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.104, 3.156, 3.159, 20.1103 (2005). 4. The criteria for a grant of service connection for fibromyalgia have been approximated. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The veteran seeks service connection for chronic fatigue syndrome and fibromyalgia. Claims for service connection for chronic fatigue syndrome and fibromyalgia were previously considered and denied by the RO in rating decisions dated in June 1995 and September 1997. The June 1995 decision denied the claim because the veteran was discharged under other than honorable circumstances. Subsequently, the character of discharge was upgraded and the RO denied the claims in September 1997 for not being well grounded under then- applicable law, as the VA examination noted there was no current diagnosis of either disease nor was there an inservice diagnosis. The veteran was advised of the decision and did not appeal. Therefore, the September 1997 decision represents a final decision. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1100(a), 20.1103. Although the RO found there was new and material evidence to reopen the claim in the rating decision dated in May 2003, the Board is required to consider de novo whether new and material evidence has been received to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir.1996). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims held that when a claimant seeks to reopen a previously denied claim, VA must examine the bases for the denial in the prior decision and advise the claimant what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. The Board finds the evidence associated with the claims file is sufficient to reopen the claim and as such finds that a deficiency in notice, if any, does not inure to the veteran's prejudice. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. At that time of the September 1997 rating decision the evidence of record consisted of service medical records, a VA examination, private medical records and lay statements. Subsequently, the veteran's social security file, additional private and VA medical records and another VA examination have been associated with the claims file. The evidence submitted subsequent to the September 1997 rating decision is new, in that it was not previously of record, and is also material. In September 1997, the claim was denied as there was no diagnosis of chronic fatigue syndrome or fibromyalgia during service and there was no then-current diagnosis. The additional evidence is "material" because it illustrates the presence of a current diagnosis and suggests an in service symptomatology and continuing treatment for the symptoms of chronic fatigue and fibromyalgia. The evidence therefore relates to the unestablished elements of a present diagnosis and an inservice incurrence of a disease or injury which are necessary to substantiate the veteran's claim. The additional evidence received since the September 1997 rating decision relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that the claims for service connection for chronic fatigue syndrome and fibromyalgia are reopened. Duty to Notify and Assist Having reopened the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify the veteran and her representative, if any, of the information and evidence needed to substantiate a claim. The notification should (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the veteran about the information and evidence VA will seek to provide; (3) inform the veteran about the information and evidence she was expected to provide and (4) request the veteran provide any evidence in her possession which pertains to the claim. This notification was satisfied by way of a letter dated in November 2002. The November 2002 letter explained VA's duties and the veteran's duties with regards to her claims. The letter informed the veteran of what the evidence needs to show to substantiate her claims for service connection. The RO requested the veteran provide authorizations for doctors or hospitals that treated her conditions and specifically requested authorizations for Dr. F and Dr. E. The November 2002 letter indicated evidence documenting continuous treatment for her conditions since service was needed. The RO advised the veteran that records from several private physicians had been requested. Under Dingess v. Nicholson, 19 Vet. App. 473 (2006), VA must also provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although the RO did not advise the veteran of such information, because the claims of service connection are being granted, the RO will, upon issuance of this decision, assign a disability rating and an effective date for service connection. Proceeding with the appeals presently does not therefore inure to the veteran's prejudice. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records, private medical records, VA treatment records and lay statements are associated with the claims file. In addition, the veteran has been afforded a VA examination in connection with her claims and provided testimony at a RO hearing. As such, the Board finds that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that the case is ready for appellate review. The Merits of the Claims Having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claims will be granted on this basis. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). The benefit of the doubt rule provides that the veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in her claims when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established for a Persian Gulf veteran who develops a chronic disability resulting from an undiagnosed illness, including chronic fatigue syndrome and fibromyalgia, which became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2006. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Evidence of record illustrates the veteran did not service in the Southwest Asia theater of operations and as such service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Chronic Fatigue Syndrome Under 38 C.F.R. § 4.88a(a), a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. Evidence of record reflects a current diagnosis of chronic fatigue syndrome. For example, in June 1994 the veteran was seen for complaints of stiff joints, poor sleep, fatigue, a low grade fever, lymphadenopathy and complaints of total body pain. In June 2005, the VA examiner noted the veteran's records supported a current diagnosis of chronic fatigue syndrome as they reflected symptoms of generalized muscle aches, low grade fever, pharyngitis, joint pain, swollen glands, headaches, sleep disturbance and depression. The remaining question, therefore, is whether there is evidence of an inservice occurrence of the injuries or diseases and medical evidence of a nexus or relationship between the current disabilities and the inservice diseases or injuries. Service medical records reflect several visits to sick call for various disorders, but do not contain a diagnosis of chronic fatigue syndrome. Although the diagnosis varied, the symptoms were similar in nature and were consistent with the symptomatology of chronic fatigue syndrome. Symptoms exhibited during service included swollen glands, sore throat, malaise/fatigue, aches, nausea, chills, fever, painful/stiff neck, problems sleeping, and headaches. The record reflects the veteran first began to complain of these symptoms in or around August 1991. Records dating from the veteran's separation from service continue to reflect symptomatology of the disease. While not all the symptoms are present at one time, records generally illustrate the presence of multiple symptoms. For example, hospital records from January 1994 reflect symptoms of headache, respiratory symptoms, stiff neck, nausea, diarrhea, back pain. In October 1994, the veteran completed a review of symptoms survey for a private physician noting weakness/tiredness, fever, depression, frequent headaches, insomnia, hoarseness, joint pain, muscle pain and back pain. A private psychiatric evaluation in February 1995 noted headaches, anxiety, stress, dizziness and a lack of concentration. The physician found depression and dysthymia which made her unable to pursue gainful employment. In June 1996, the adjudicator for the Social Security Administration granted benefits noting the veteran is unable to work due to her chronic fatigue syndrome and fibromyalgia. Specifically, the adjudicator reviewed evidence which demonstrated the veteran was diagnosed with viral meningitis in January 1994. The adjudicator also referred to medical records which presented evidence of fibromyalgia, headaches and chronic fatigue syndrome. The adjudicator noted the treating physician confirmed the condition in June 1996 and noted it was attended by pain, headaches, stiff neck numbness in the left hand and leg, blackout episodes, swollen lymph glands on the left neck, low grade fever diarrhea and nausea and intermittent vertigo. The adjudicator's found the veteran met the disability status requirements. The adjudicator found the veteran had not engaged in substantial gainful activity since September 1994. The adjudicator found the medical evidence established the veteran's diagnosis of fibromyalgia, headaches and chronic fatigue syndrome, resulting in severe pain and limitation of normal bodily functions. There was a residual functional capacity to perform less than a full range of sedentary work and no residual functional capacity to perform past relevant work. The veteran was described as a 33 year old with high school education and the adjudicator noted the transferability of work skills was not material. The veteran was found to be disabled for Social Security purposes since September 1994. The veteran underwent a VA examination in August 1997 to determine a diagnosed systemic condition. This examination concluded with no significant diagnosis. The veteran was described as walking slowly with a cane to avoid weight bearing of the left hip. The veteran complained of low grade temperature, headaches, left shoulder and left hip pain, nausea, syncopal episodes, stiff neck and easy fatigue but noted none of the symptoms were present the day of the exam. The veteran's eyes and ears were clear and normal. Examination of the throat and pharynx demonstrated a clean healthy appearing mucus membrane. The thyroid was not palpable. Auscultation of the chest revealed normal heart sounds with a regular rate and rhythm. Lungs were clear to auscultation. The musculoskeletal examination was normal. No restriction of the range of motion was noted with the exception of the left shoulder which the veteran related was sore from a recent accident. The veteran was able to sit, stand, climb on the examining table and rise up from a recumbent position. Laboratory tests were negative. The impression was no significant disease state can be diagnosed by the symptoms that are subjective in view of the absence of abnormal laboratory results. The examiner subsequently added an addendum which indicated the temperature was normal and in the absence of pharyngeal exudate and finding no cervical or axillary adenopathy it seemed that the subject did not meet the criteria diagnosis of chronic fatigue syndrome. In June 2001 the veteran was seen at a private facility for temporomandibular joint pain, neck pain, swollen glands, fever and headaches. The assessment was fever of unknown origin. In March 2002, a private medical record notes chief complaints of fatigue, dizziness, headaches, swollen glands, fever, general aches, throbbing shooting pains in the neck, shoulders, hips, legs, sides and ankles. A December 2002 private medical record reflects complains of swollen neck glands, fatigue, cervical pain, falling, hand tremors, low grade fever and generalized pain. The assessment was neurological abnormality, probably due to either cervical disc disease or possibly new infection and lymphadenopathy which may be related to flare of her chronic fatigue syndrome. In February 2003 the veteran was seen at a private facility for upper respiratory infection, sore throat, fever, diarrhea, cough and tender cervical lymph nodes. The assessment was fibromyalgia and chronic pain. A November 2004 note from a private physician indicated that she had treated the veteran for the past 15 years. The private physician stated she treated the veteran both prior to her enlistment and after her discharge from the Navy. The physician opined that the patient's symptoms of chronic fatigue and fibromyalgia had developed since her discharge from the U.S. Navy and did not predate her enlistment and service time. The veteran underwent another VA examination in connection with the claims in June 2005. The examiner reviewed the claims file and noted at least 10 occasions of complaints for ear infection, sore throat, otitis media, right mastoiditis, and gastroenteritis. A low grade fever was reported five times. General muscles aches and joint pains were also present during service. The cervical nodes were described as palpable or tender during service. Pharyngitis was also mentioned. The examiner reported that five features of chronic fatigue were present during service but indicated there was no evidence of headaches, fatigue over 24 hours or psychological manifestations. The examiner noted the first diagnosis of chronic fatigue syndrome was in April 1994, less than one year after the veteran's separation from service. The examiner noted the diagnosis was confirmed by the presence of the same five features which were present during service and additional symptoms of headaches, sleep problems, and depression. During the June 2005 examination, the veteran reported being able to perform simple tasks around the house and caring for herself; however, she stated she could not go out as it made her very fatigued. She reported poor sleep and frequent visits with doctors. The diagnostic and clinical tests did not indicate any other conditions which could be confused with chronic fatigue. The concluding diagnosis was chronic fatigue syndrome with five of the 10 criteria established during military service. The examiner noted this meant that no definite diagnosis of chronic fatigue could be made during service but opined it was at least as likely as not that the veteran's symptoms began at that time. The veteran also submitted two lay statements in support of her claim. Both were dated in October 1994. One was written by M.D and J.D., the veteran's parents, and the other by the veteran's roommate, D.M. Both statements relate witnessing the veteran complain of pain, headaches, stiffness, and fever. They related the problems the veteran had during service while she tried to determine the cause of her illness and D.M. indicated the veteran was fired from a job from missing too much work. In sum, there is no evidence of an inservice event, however there is evidence documenting that some of the symptoms of chronic fatigue syndrome were manifested during service and continued up until the veteran's diagnosis with the disease. The VA examiner in June 2005 found the veteran did not meet the requisite number of conditions of chronic fatigue as set forth in the Schedule for Rating Disabilities while she was in service. However, the record also contains several records which alluded to additional symptoms of chronic fatigue syndrome during service. This documentation serves to place the state of evidence in relative balance, triggering application of the benefit-of-the-doubt doctrine. For example, a September 1991 service medical record contained the symptom of malaise/fatigue, although the length of time the fatigue lasted was not specified. The veteran's May 1993 in-service report of medical history indicated headaches and depression. The evidence of record clearly illustrates the symptoms continued from service until the present time, although it also demonstrates that frequently there were less than the requisite six symptoms at one time. The Board also considered the June 2005 VA examiner's opinion that it was at least as likely as not that the symptoms had their onset during service. As such, the Board finds the evidence is at an approximate balance. Under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Application of the rule is appropriate here, and the appeal will be granted. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Fibromyalgia Evidence of record reflects current diagnoses of fibromyalgia. The remaining question, therefore, is whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus or relationship between the current disability and the inservice disease or injury. As with the veteran's chronic fatigue syndrome, service medical records do not contain a diagnosis of fibromyalgia. However, service medical records do document several of the symptoms of the disease. Symptoms documented during service included fever, swollen glands, diarrhea, sore throat, joint pain, particularly in the neck and back, generalized muscle aches, fever, chills, vomiting, and fatigue. The veteran continued to demonstrate some of the symptomatology of fibromyalgia after her separation from service. This included neck pain, shoulder pain, arm pain, hip pain, pain in several of the trigger points on some days in all 18 trigger points, fatigue, fever, headaches, and occasionally diarrhea and sleep problems. For example, a private record in October 1994 illustrated the veteran had pain in 18 out of 18 trigger points. A June 1995 private medical record documented complaints of shooting pain on the left side of the body, neck and jaw pain, decreased appetite, temporal headaches and fever. Private records in 1996 reflect continued joint pain and other symptoms, however attributed these to fibromyalgia and a motor vehicle accident in August 1996. A VA examination of the joints in July 1997 found no service connected problem from an orthopedic standpoint. The veteran explained she was in the Navy from 1991 until 1993 and described difficulty with her left foot in July 1992. The veteran related several complaints after the surgery for her foot resulting in her discharge from the Navy. She related a period without pain which lasted approximately 10 months in 1996 until she injured her shoulder in May 1997. She stated she was unsteady in gait and used a cane in the right hand for stability. She described numbness of the left 3rd toe, low back pain and difficulty with the left hip. Clinical examination revealed the veteran stood erect with no list and had a slight limp upon walking. The examiner noted she favored her left leg. The veteran was able to stand on her toes and heels without difficulty. A three inch scar over the left third interspace of the foot was noted. There was full range of motion in the left foot and ankle. The veteran's hips demonstrated no flexion contracture and the veteran was able to rotate externally to 60 degrees. Internal rotation to 30 degrees was recorded. The back demonstrated a normal reversal of lumbar curve on forward flexion. Straight leg raising bilaterally caused no discomfort. Deep tendon reflexes were present, equal and active bilaterally. The veteran's wrist had a full range of motion with no evidence of carpal tunnel syndrome. No evidence of orthopedic abnormality was seen. A private medical record in February 2000 reflects the veteran was seen for pain in the neck, shoulders and left arm. Private medical records dated in July 2001 reflect the veteran underwent a series of trigger point injections to alleviate muscle and joint pain. In March 2002, a private medical record notes chief complaints of fatigue, dizziness, headaches, swollen glands, fever, general aches, throbbing shooting pains in the neck, shoulders, hips, legs, sides and ankles. Clinical examination of the veteran revealed she had tender points in almost all areas tested, and all areas of fibromyalgia. The range of motion of the neck was described as moderately restricted. The diagnosis was chronic pain syndrome and fibromyalgia. Records in 2002 indicate the veteran continued to receive trigger point injections to treat the joint pain. A private medical record dated in February 2003 recorded complaints of headache, stiff neck, decreased memory, slurred speech and tremors. The impression was history of fibromyalgia and recent neurological symptoms of poor memory, slurred speech, and tremors. The veteran also underwent a VA examination for fibromyalgia in June 2005. The examiner noted the veteran was first diagnosed with fibromyalgia in 1994. The veteran indicated activity increased her muscle pain and rest alleviated it. The veteran complained of pain in her neck, shoulders, and hips everyday and rated the pain as a 7 out of 10. The veteran also reported fatigue and sleep disturbances. The veteran also complained of nausea. The veteran denied diarrhea and constipation. Clinical examination revealed no objective evidence of abnormalities. Subjective complaints of pain at 18 of 18 tender points were noted. Muscle strength was within normal limits and symmetrical. The diagnosis was fibromyalgia syndrome without evidence of this diagnosis being established in the military. Evidence of record also includes the October 1994 lay statements, the June 1996 Social Security Disability decision and the November 2004 private physician note, all of which were discussed above. The lay statements documented the veteran's complaints of pain; the Social Security Administration decision included a finding that the veteran had fibromyalgia and granted benefits in part based upon this finding and the November 2004 note from a private physician indicated that the fibromyalgia developed since her discharge from the U.S. Navy and did not predate her enlistment to service. Again, the evidence lacks an inservice diagnosis of the disease. However, records reflect continuous complaints and treatment for symptoms of fibromyalgia. The treating physician indicated the disease did not exist prior to service, suggesting the onset of the disease was at some point during service. However, no rationale was provided for this opinion. The VA examiner in June 2005 opined there was no evidence the fibromyalgia had its onset during service. The examiner also provided little reasoning for this opinion, other than the fact that the first actual diagnosis was in 1994. The examiner did not provide an opinion as to whether the symptomatology of the disorder began during service. Therefore, the Board finds the evidence is at an approximate balance as there are conflicting opinions and a record which demonstrates continuity of symptomatology. Under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). The Board notes that assigning a disability rating is a subsequent issue, and as such it is not to be examined by the Board at this time but rather is a matter for RO consideration. However, as the symptomatology of the chronic fatigue syndrome and fibromyalgia are similar, the RO's should consider the guidelines established in Esteban v. Brown concerning overlapping symptoms. See Esteban v. Brown, 6 Vet. App. 259 (1994). ORDER New and material evidence having been received, the claim of service connection for chronic fatigue syndrome is reopened and service connection is granted. New and material evidence having been received, the claim of service connection for fibromyalgia is reopened and service connection is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs