Citation Nr: 1333778 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-47 721 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas THE ISSUES 1. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for chronic headaches. 2. Entitlement to service connection for chronic headaches. 3. Entitlement to service connection for fibromyalgia due to Gulf War service. 4. Entitlement to service connection for a qualifying chronic disability manifested by joint aches, to include undiagnosed illness. 5. Entitlement to service connection for a qualifying chronic disability manifested by muscle aches, to include undiagnosed illness. 6. Entitlement to service connection for chronic fatigue syndrome or a claimed undiagnosed disability manifested by chronic fatigue due to Gulf War service. 7. Entitlement to service connection for a qualifying chronic disability manifested by nasal/sinus symptoms, to include rhinitis, sinusitis, and undiagnosed illness. REPRESENTATION Veteran is represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from June 1984 to September 1984, from June 1985 to July 1985, and from November 1990 to June 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the RO in Wichita, Kansas. The Veteran was afforded a hearing before a Decision Review Officer at the RO in October 2010. In October 2011, the Veteran presented testimony at a Board hearing, which was chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of each hearing is associated with the claims file. The Veteran disagreed with the December 2008 denial of service connection for claimed sleep disturbance; however, he withdrew indicated on the record of the October 2010 RO hearing that he wished to withdraw the appeal. That issue was not included on the November 2010 statement of the case, and therefore, the appeal as to that issue was not perfected by the receipt of the VA Form 9 in December 2010. Accordingly, the Board does not have jurisdiction over the matter. See 38 C.F.R. §§ 20.200, 20.202, 20.204 (2013). The Veteran also appealed the denial of an application to reopen a claim of entitlement to service connection for a claimed back disability. That appeal was perfected in December 2010. However, just after the October 2011 Board hearing, the Veteran withdrew his appeal as to that issue in writing (see October 26, 2011 VA Form 21-4138). As the appeal was perfected, the Board will address the withdrawal of the appeal in the decision below. The Board notes that it has characterized the issues on appeal differently than did the RO. Specifically, the Veteran's testimony indicates that he is not seeking service connection for the specific diagnoses of sinusitis and rhinitis, but is seeking service connection for as yet undiagnosed disability manifested by nasal and sinus symptoms, which he attributes to his Persian Gulf War service. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for chronic fatigue syndrome and a qualifying chronic disability manifested by nasal/sinus symptoms, to include rhinitis, sinusitis, and undiagnosed illness are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed September 1994 rating decision, the RO denied service connection for migraine headaches. 2. The evidence associated with the claims file subsequent to the RO's September 1994 decision addresses the unestablished fact of worsening of migraine headaches during and as a result of the Veteran's Gulf War service. 3. The Veteran is presumed to have been in sound condition at entry into his period of Gulf War service regarding migraine headaches; that presumption is not rebutted. 4. Migraine headaches are either related directly to service or to a service-connected disability. 5. The Veteran has a current diagnosis of fibromyalgia that is presumed to be related to his Gulf War service. 6. The Veteran's claimed joint and muscle aches have been attributed to the known disability of fibromyalgia. 7. On October 26, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal regarding entitlement to service connection for a back disability was requested. CONCLUSIONS OF LAW 1. The criteria for reopening of the claim of entitlement to service connection for migraine headaches are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). 2. Migraine headaches were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. Fibromyalgia was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 4. A qualifying chronic disability manifested by joint aches was not incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317(a)(2) (2013). 5. A qualifying chronic disability manifested by muscle aches was not incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317(a)(2) (2013). 6. The criteria for withdrawal of an appeal regarding the issue of entitlement to service connection for a back disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn the appeal as to entitlement to service connection for a back disability in writing; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to that matter and it is dismissed. Application to Reopen Service Connection The RO initially denied a claim of entitlement to service connection for migraine headaches in a September 1994 rating decision. At the time of the September 1994 decision, the medical evidence of record consisted of service treatment records and private treatment records from the Menninger Clinic. The service records showed that a history of migraine headaches was noted on a report of medical history at the start of the Veteran's third active duty period, from November 1990 to June 1991. The examining physician noted on the report of medical history that the Veteran has had migraine headaches once a week since the age of 5. Despite this notation, the examination report reflects normal clinical findings for the head and neurological systems. Prior examination/medical history reports in November 1983 and October 1986 noted that the Veteran had experienced ongoing migraine headaches since the age of 5; however the examination reports were also normal. Service treatment records reflected treatment for migraine headaches during active duty. The RO denied the claim in September 1994 based on a finding that the Veteran's migraines had predated service and were not aggravated by service. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2013)); moreover, he did not submit new and material evidence within 1 year of that decision. In fact, no evidence was received for almost 14 years after the September 1994 decision. Therefore, it became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013). In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) vacated and remanded an earlier effective date claim (not at issue in this case) because the Board did not discuss the application of § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were notices of disagreement. Buie, Vet. App. at 252. Essentially, the Veterans Court indicated that, because the statements were submitted within 1 year of the corresponding RO decision, the Board should have considered whether the statements included the submission of new and material evidence. Id. In this case, no statements or other evidence was received within a year of the decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). In this case, service personnel records were received after the September 1994 decision; however, the records do not address any question before the RO at the time of the September 1994 decision. They are therefore not relevant, and reconsideration is not warranted. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the Veterans Court held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Veterans Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The Veteran submitted an application to have the previously denied claim reopened in August 2008. Regarding applications for reopening filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The evidence received since the September 1994 rating decision includes medical records addressing the previously unestablished fact of worsening or aggravation. This evidence includes July 2008 and June 2009 VA neurology consultations, which note that, before serving in the Persian Gulf, the Veteran had experienced 1 headache per month; however, after his service, his headaches had increased to as many as 3 per week. The evidence also includes a July 2009 private opinion that the Veteran's migraine headaches are "definitely or probably service-connected, dating from chemical exposure during the first Gulf War." In addition, a January 2010 VA neuropsychology assessment includes that Veteran's assertion that he "grew out" of his headaches as a teenager, but they returned during the Gulf War and have been getting worse ever since. As the evidence in September 1994 did not establish that the Veteran's migraine headaches had worsened beyond the natural progress of the disease, and as the evidence received since September 1994 addresses this fact to a degree that bears a reasonable possibility of substantiating the claim, the Board finds that new and material evidence has been received and reopening of the claim of entitlement to service connection for migraine headaches is warranted. The Board will address the merits of the reopened claim below. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Headaches Although the Veteran appears to concede that he had migraine headaches as a child, he asserts that they occurred on a significantly less frequent basis than since his service in the Persian Gulf. He contends that his headaches were aggravated by his Persian Gulf service. The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). 38 C.F.R. § 3.304(b) states likewise, but also states "[o]nly such conditions as are recorded in examination reports are to be considered as noted." In this case, the Board finds that, contrary to the RO's finding in September 1994, migraine headaches were not noted on the examination report at entry into active duty in October 1990. Indeed, the September 1994 decision did not address the presumption of soundness at all, but simply noted a clear history of headaches prior to service. Although the report of medical history was completed on the same date as the entrance examination report and was signed by the same physician as conducted the entrance examination, the examiner made no contemporaneous clinical findings regarding migraines. VA law is explicit that a history of pre-service disability recorded at the time of the entrance examination does not constitute a notation of such disability. 38 C.F.R. § 3.304(b)(1). Here, there is only a notation of a history of migraines without contemporaneous medical findings. Accordingly, the presumption of soundness attaches. The burden thus shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d 1089. In this case, the Board finds that, while the evidence strongly indicates that the Veteran's migraines predated service, a specific finding on this question is not necessary, as the Board finds that there is not clear and unmistakable evidence establishing that the disability, to the extent it predated service, was not permanently worsened beyond the natural progress of the disease by service. Without such evidence, the presumption of soundness cannot be rebutted. The evidence regarding the severity of the Veteran's headaches prior to service and their severity during and after service consistently demonstrates a worsening in the disability contemporaneous with service. In establishing a baseline prior to service, the Board notes that, in October 1986, the Veteran described a history of migraines twice per year. In October 1983, the Veteran recounted that his last headache had been 3 months prior. Consistent with this history, he was treated twice during his Gulf War active service for migraines, in December 1990 and April 1991. Since service, as set out in detail above, the Veteran's headaches have increased to as many as 3 per week. This is a substantial increase in frequency. The private treatment records support this increase in frequency. On the November 1983 report of medical history, the Veteran reported that he had become used to the migraines. In contrast, private treatment notes reveal an increase in his complaints just months after the end of active duty (a key piece of evidence that supports this claim). In September 1991, the Veteran was treated for a migraine that had lasted 2 days. In February 1992, his private physician noted that the Veteran had done quite poorly with his migraines while he was in Saudi Arabia, more evidence that supports this claim. In June 1992, the Veteran was reporting 2 headaches per week. Moreover, he was consistently reporting that his headaches had increased since his service. The Veteran is competent to report his observable and perceivable symptoms, such as headaches, and he is uniquely competent to describe their severity. His reports have been consistent in linking an increase in frequency of headaches to his period of active duty in the Persian Gulf. Based on the evidence in this case, the Board finds that there is not clear and unmistakable evidence that the Veteran's migraines were not permanently worsened beyond their normal course by his active duty in the Persian Gulf. Regardless of whether the migraines are found to have predated service, the presumption of soundness is not rebutted. Thus, the evidence demonstrates sound condition regarding migraines at entry into active duty, treatment for migraines during active duty, and what appears to be a course of regular treatment for migraines after active duty and currently. Regarding a nexus between the Veteran's migraines and service, there are 2 medical opinions of record. The Veteran's private physician in July 2009 noted that he had treated the Veteran since 2006. He opined that the Veteran's migraine headaches were either definitely or probably service-connected, dating from chemical exposure during the first Gulf War. The private physician provided no rationale for his opinion; however, there is no medical opinion that directly contradicts it. A VA physician has offered a slightly different theory of etiology for the headaches in an October 2010 report, as he found that the Veteran's service-connected posttraumatic stress disorder (PTSD) "directly lead to aggravation of his headaches" and that increased anxiety symptoms due to PTSD trigger the Veteran's migraine headaches and lead to an increased frequency of headaches. Based on the Board's finding that the presumption of soundness is not rebutted in this case, and that the Veteran is presumed to have been in sound condition at entry into his period of Gulf War active duty, it would not be appropriate to limit a grant of service connection to aggravation of a pre-existing injury, as suggested by the VA physician's opinion. The Board accordingly finds that, as the Veteran was in sound condition at entry into active duty, as onset of migraines was noted in service and currently, and as current migraines have been related to service or to a service-connected disability by competent evidence, service connection for migraine headaches is warranted. Fibromyalgia Turning to the Veteran's claim that fibromyalgia is related to his service in the Persian Gulf during the Persian Gulf War, at the time of the December 2008 decision on appeal, there was no diagnosis of fibromyalgia. The RO denied the claim on the basis that there was no current disability. In order to establish service connection under 38 C.F.R. § 3.317, a Veteran must be: (1) A Persian Gulf Veteran; (2) who exhibits objective indications; (3) of a qualifying chronic disability that: (a) became manifest during active military, naval, or air 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, 2016; and (b) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both "signs" (in the medical sense of objective evidence perceptible to an examining physician), and "symptoms," or non-medical indicators that can be independently verified. Signs and symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illnesses include (but are not limited to): (1) Fatigue, (2) Signs or symptoms involving skin, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurologic signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the respiratory system (upper or lower), (9) Sleep disturbances, (10) Gastrointestinal signs or symptoms, (11) Cardiovascular signs or symptoms, (12) Abnormal weight loss, (13) Menstrual disorders. 38 C.F.R. § 3.317(a)(3), (b). There are 2 categories of "qualifying chronic disability." In either case, a veteran must display symptoms stemming from either (or both) of the following: (1) an undiagnosed illness; or (2) a medically unexplained chronic multi-symptom illness, defined by a cluster of signs or symptoms, such as (but not limited to): (A) chronic fatigue syndrome (long-term and severe fatigue that is not relieved by rest and is not directly caused by other conditions); (B) fibromyalgia (characterized by widespread muscle pain; other symptoms may include insomnia, morning stiffness, headache, and memory problems); (C) functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). Since the RO decision on appeal, there appears to be a confirmed diagnosis of fibromyalgia. An October 2009 VA rheumatology consultation includes a specific finding that the Veteran has 12 fibromyalgia tender points, and that, according to the examiner, he does meet the criteria for fibromyalgia provided other likely causes are ruled out. Regarding other causes, the examiner ordered spine x-rays and noted that, if no abnormalities were found on the spine film, "we are left with a diagnosis of fibromyalgia." A November 2009 spine x-ray noted only a probable muscle spasm and a slight narrowing of the L5-S1 intervertebral disc space. It does not appear that there was a subsequent rheumatology consultation. A physical medicine rehab consultation in November 2009 notes a "diagnosis of fibromyalgia." The Veteran also submitted a January 2013 partial VA record on which a diagnosis of fibromyalgia is included. The Board acknowledges that, not all of the evidence is favorable on this question, and that a May 2010 rheumatology consultation includes a notation "I do not think he has fibromyalgia." However, the reasons for this statement were not provided. As such, the Board assigns it less weight than the October 2009 consultation during which it was noted that the Veteran had the 12 fibromyalgia tender points and meets the criteria for a diagnosis of fibromyalgia. The Board also finds it persuasive that the most recent evidence includes a diagnosis of fibromyalgia. The Board finds that, while the evidence in favor of a diagnosis of fibromyalgia is neither unanimous nor overwhelming, it need not be. The evidence for and against a diagnosis of fibromyalgia has reached the point of relative equipoise, and the benefit of the doubt must be resolved in favor of the claim. As the Veteran has a diagnosis that is presumed to be associated with Persian Gulf service, and as the evidence demonstrates conclusively that he served in Saudi Arabia during the Persian Gulf War, the Board concludes that service connection for fibromyalgia is warranted. Muscle and Joint aches Regarding the claims of entitlement to service connection for qualifying chronic disabilities manifested by joint and muscle aches, the Veteran's joint and muscle aches have been attributed to the known disability of fibromyalgia. As set out above, an undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Moreover, service connection has been granted for the known clinical diagnosis of fibromyalgia. The rating criteria for fibromyalgia specifically contemplate widespread musculoskeletal pain and tender points, stiffness, and paresthesias. The Veteran's symptoms of joint and muscle aches will be considered in assigning a disability rating for fibromyalgia. To the extent that the Veteran is seeking service connection for some specific disability other than fibromyalgia that produces joint and muscle aches, he has not asserted this, and he has not described such distinctions in his symptomatology as would permit an additional grant of service connection or additional development of these issues. Accordingly, the Board finds that service connection for claimed qualifying chronic disabilities manifested by joint and muscle aches is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the application to reopen service connection for migraines and is granting the claims of entitlement to service connection for migraines and fibromyalgia, those claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his claim for service connection in August 2008. He was sent a letter in September 2008 which advised him of the information and evidence necessary to substantiate service connection for the issues claimed. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. The Veteran was provided supplemental letters in August 2009 and October 2009. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the September 2008 letter was sent to the Veteran prior to the initial adjudication of the claim in December 2008, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. When conducting a hearing, a hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2013). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the Veteran's symptomatology was discussed in detail, and testimony concerning the details of his service and post-service symptomatology and impairment was elicited. Moreover, the file was left open for 60 days in order to supplement the record. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. The Board acknowledges that the Veteran has not been afforded an examination to determine whether there is some disability other than fibromyalgia that produces joint and muscle aches, and whether such disability is related to service. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are 4 factors for consideration. These 4 factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the Veteran has not asserted that he has any specific disability of the joints and muscles other than fibromyalgia and chronic fatigue syndrome. He has essentially described his symptoms, and as discussed above, these symptoms have been medically attributed to fibromyalgia. Accordingly, the Board finds that referral for a VA medical examination is not warranted. ORDER Reopening of entitlement to service connection for migraine headaches is granted. Service connection for migraine headaches is granted. Service connection for fibromyalgia is granted. Service connection for a qualifying chronic disability manifested by joint aches is denied. Service connection for a qualifying chronic disability manifested by muscle aches is denied. The appeal as to entitlement to service connection for a back disability is dismissed. REMAND Chronic Fatigue Syndrome The Veteran is seeking service connection for chronic fatigue syndrome as related to his Persian Gulf War service. Chronic fatigue syndrome (long-term and severe fatigue that is not relieved by rest and is not directly caused by other conditions) is listed among the medically unexplained chronic multi-symptom illnesses which, along with fibromyalgia and functional gastrointestinal disorders constitute "qualifying chronic disability" for purposes of the presumption of 38 C.F.R. § 3.317(a)(2)(i). There is no medical opinion of record addressing whether a diagnosis of chronic fatigue syndrome is appropriate in the Veteran's case. The Veteran has provided competent evidence that he has experienced symptoms of fatigue on a regular basis since his Persian Gulf Service. Moreover, a February 2003 progress note from L.W.R. MD contained among the Social Security records includes a diagnosis of mild "chronic fatigue." While this does not appear to be a diagnosis of "chronic fatigue syndrome," it suggests that such a diagnosis may be appropriate. Based on this evidence and the Veteran's acknowledged service in the Persian Gulf War, the Board finds that a medical examination is necessary to determine whether the Veteran has chronic fatigue syndrome that is related to his Persian Gulf service. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Rhinitis and Sinusitis While the Veteran has pursued claims of entitlement to service connection for rhinitis and sinusitis, he does not contend that he has ever been diagnosed with either disability. In fact, a review of the service records and post-service records reveals no diagnosis of sinusitis and no diagnosis of rhinitis; however, the Veteran is competent to relate his symptoms as he has experienced them, and he has testified that he has experienced symptoms of nasal congestion since his Gulf War service. He has also testified that he has been prescribed Flonase to treat his symptoms. As the objective indications of chronic disability for purposes of the Gulf War presumptive provisions include signs or symptoms involving the respiratory system (upper or lower), the Board finds that a medical opinion is warranted as to whether there is a current nasal/sinus disability, whether it can be attributed to a known diagnosis, and whether the diagnosis is related to the Veteran's Gulf War service. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Shedden, 381 F.3d at 1167; McLendon, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine whether a diagnosis of chronic fatigue syndrome is medically appropriate, and if not, whether symptoms of fatigue can be attributed to another known diagnosis. The relevant documents in the claims file should be made available to the VA examiner. * The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran has chronic fatigue syndrome. * If the examiner determines that a diagnosis of chronic fatigue syndrome is not supported, the examiner should offer an opinion as to whether the Veteran's symptoms of fatigue can be attributed to a known diagnosis. * If the examiner determines that the Veteran's symptoms of fatigue can be attributed to a known diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not that the known diagnosis is related to the Veteran's service. * If the examiner determines that the symptoms of fatigue cannot be attributed to a known diagnosis, the examiner should determine whether it is at least as likely as not that the symptoms of fatigue constitute an undiagnosed illness that is associated with the Veteran's Gulf War service. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed sinus/nasal disorder. The relevant documents in the claims file should be made available to the VA examiner. * The examiner should offer an opinion as to whether the Veteran's symptoms of nasal congestion can be attributed to a known diagnosis or diagnoses. * If the examiner determines that the Veteran's symptoms of nasal congestion can be attributed to a known diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not that the known diagnosis is related to the Veteran's service. * If the examiner determines that the nasal/sinsus symptoms cannot be attributed to a known diagnosis, the examiner should determine whether it is at least as likely as not that the symptoms constitute an undiagnosed illness manifested by upper respiratory symptoms that is associated with the Veteran's Gulf War service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale that is consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 3. This is a complex case. The RO/AMC should insure that all questions asked above have been answered. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). These issues 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs