Citation Nr: 1332563 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-36 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether there is new and material evidence has been received to reopen a claim for service connection for fibromyalgia and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a decision of October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for fibromyalgia is addressed in the remand that follows the ORDER section of this decision. FINDING OF FACT A claim of service connection for fibromyalgia was denied in a March 1997 rating decision. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection. CONCLUSIONS OF LAW 1. The March 1997 Board decision that denied service connection for fibromyalgia is final. 38 U.S.C.A. § 7104 (West 2002) (2012). 2. New and material evidence to reopen the claim of entitlement to service connection for fibromyalgia has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The decision below resolves the issue of whether new and material evidence has been submitted in the Veteran's favor. Thus, the duty to notify and assist has been met to the extent necessary to reopen the claim such that any deficiency in this regard is harmless error. Bernard v. Brown, 4 Vet. App. 384 (1993); Kent v. Nicholson, 20 Vet. App. 1 (2006). Application to Reopen Entitlement to service connection for fibromyalgia was denied in a March 1997 rating decision because the evidence did not indicate that the fibromyalgia began in service or was causally related to service. The Veteran was notified of this decision but did not appeal. Generally, a claim which has been denied in an unappealed RO decision may not be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). No pertinent evidence was received within the one-year period for appealing the prior denial. The evidence received after the expiration of the appeal period includes Internet articles reporting that fibromyalgia "often occurs following physical trauma" and is "correlated" with posttraumatic stress disorder; a medical abstract reporting that chronic pain and posttraumatic stress disorder frequently co-occur; and a medical abstract indicating that medical study showed a "significant overlap" between fibromyalgia and posttraumatic stress disorder. This evidence is not cumulative or redundant of the evidence previously of record, which only included a medical abstract indicating that medical study showed no etiological relationship between sexual assault and fibromyalgia. The Board finds the new articles, in conjunction with the competent and presumed credible evidence of sexual and physical assault during service and the fact that service connection is in effect for posttraumatic stress disorder, meets the low threshold of Shade. Thus, reopening of the claim is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for fibromyalgia is granted. REMAND An opinion should be obtained from an appropriate medical professional to determine whether the Veteran's fibromyalgia began in service or is causally related to service, to include the military sexual trauma in February 1968. The Board acknowledges that the record includes a VA examiner's determination that the record did not support the finding that fibromyalgia was related to service. See September 2008 addendum opinion. The examiner was unable to review the VA treatment records dated in the 1970s, however, as they were not yet of record. Furthermore, the Board finds the opinion has limited probative value because the examiner did not address the articles provided by the Veteran, the April 1970 history of generalized joint pain in wet rainy months, or the November 1985 medical diagnosis of a musculoskeletal pain syndrome, which the record indicates was "associated" with high anxiety and depression. Thus, the Board finds another opinion is needed to clarify whether the Veteran's fibromyalgia was present in service or is related to service. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding treatment records pertinent to the issue on appeal, to include records from M.W., M.D., and the Phoenix VA medical system. If unsuccessful, so inform the Veteran and her representative. 2. Forward the claims folder and any relevant records on Virtual VA to an appropriate medical professional for an opinion as to the etiology of the fibromyalgia. After reviewing the record, the examiner should opine whether it is at least as likely as not (50 percent or better probability that the fibromyalgia began during service, is otherwise etiologically related to service, to include the reported military sexual trauma in February 1968, or was caused or aggravated by the service-connected posttraumatic stress disorder. A rationale should be provided for any opinion expressed. The examiner is requested to reference (a) service inpatient and outpatient treatment records dated from April to August 1970 reflecting histories of generalized joint pain with wet weather (April), chest pain (April and June), headaches (June), and abdominal pain (June and August). (b) VA inpatient records dated in August/September 1970 reporting histories of myalgia and body aches (c) April 1974 treatment for arthralgia (d) the articles provided by the Veteran and the November 1985 medical notation that the diagnosed fibrocytis syndrome was associated with high anxiety and depression If the examiner is not able to provide an opinion because it would be speculative, the examiner should specify whether there is additional information that would enable him/her to provide the required opinion. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs