Citation Nr: 1615560 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 15-26 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple myeloma (also claimed as bone cancer). 2. Entitlement to service connection for multiple myeloma (also claimed as bone cancer). 3. Entitlement to service connection for fibromyalgia with chronic joint pain, chronic muscle pain, and fragile bones. 4. Entitlement to service connection for chronic fatigue syndrome. 5. Entitlement to service connection for a chronic sleep disorder to include insomnia. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in October 2013 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. During the hearing the Veteran submitted additional evidence along with a waiver of initial RO review. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of service connection for multiple myeloma issue, chronic fatigue syndrome, and a chronic sleep disorder to include insomnia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been diagnosed with fibromyalgia, which is a disease presumptively related to her service in the Southwest Asia Theater of Operations during the Persian Gulf War; her symptoms include chronic joint pain, chronic muscle pain, and fragile bones. 2. In an unappealed January 2010 rating decision, the RO denied entitlement to service connection for multiple myeloma. 3. The additional evidence presented since the January 2010 rating decision relates to a previously unestablished fact necessary to substantiate the claim of service connection for multiple myeloma. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia, with chronic joint pain, chronic muscle pain, and fragile bones, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2015). 2. The October January 2010 rating decision that denied entitlement to service connection for multiple myeloma is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 3. New and material evidence has been submitted since the last denial of service connection for multiple myeloma and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for fibromyalgia with chronic joint pain, chronic muscle pain, and fragile bones as well as to reopen the claim of entitlement to service connection for multiple myeloma, the only issues being decided herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide these issues. Fibromyalgia with Chronic Joint Pain, Chronic Muscle Pain, and Fragile Bones Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest either 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, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) . A qualifying chronic disability can be a chronic disability resulting from a medically unexplained chronic multisymptom illness that is defined by a cluster of signs of symptoms, such as fibromyalgia. 38 C.F.R. § 3.317(a)(2)(i)(B)(2). The RO separately developed the issues of service connection for fibromyalgia, chronic joint pain, chronic muscle pain, and fragile bones. The issue of service connection for fibromyalgia is being granted herein and the medical and lay evidence shows that chronic joint pain, chronic muscle pain, and fragile bones are part and parcel of fibromyalgia. During the March 2016 Board hearing the Veteran stated that her fibromyalgia encompasses joint pain, muscle pain, and bone pain and acknowledged that they all should be condensed into one category. During the hearing it was discussed that to separately treat these conditions would constitute impermissible pyramiding as the Veteran would be compensated twice for the same symptomatology. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Hence, the claim on appeal is appropriately characterized as entitlement to service connection for fibromyalgia with chronic joint pain, chronic muscle pain, and fragile bones. 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In July 2010 the National Personnel Records Center (NPRC) confirmed that the Veteran served in Southwest Asia from February 13, 1991 to May 9, 1991. In March 2016, the Veteran testified that she had severe joint pain and has had multiple bone fractures due to having fragile bones. The Veteran as a lay person is competent to describe pain without any specialized knowledge or training, and the Board accepts her statements as credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). She further testified that a medical examiner informed her that chronic muscle pain, chronic joint pain, and fragile bones were interrelated with her fibromyalgia. As a lay person the Veteran is competent to report observable symptoms and a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson competent to report a contemporaneous medical diagnosis); On the question of whether the Veteran has a diagnosis of fibromyalgia, on the May 2013 VA Gulf War Medical Examination Disability Benefits Questionnaire (DBQ) the examiner did not check the box indicating that the Veteran had fibromyalgia. However, subsequently on VA DBQ Fibromyalgia examination in September 2015, the examiner provided a diagnosis of fibromyalgia and noted that fibromyalgia was manifested by symptoms to include musculoskeletal pain, stiffness, muscle weakness, fatigue, and sleep disturbance. The examiner also opined that continuous medication was required to control fibromyalgia symptoms. Thus the evidence shows that the Veteran was diagnosed with fibromyalgia after service. In sum, the weight of the evidence of record clearly shows that the Veteran meets the requirement for presumptive service connection under the provision applicable to Veterans of the Persian Gulf War because (1) she served in the Southwest Asia Theater of operations during the Persian Gulf War, and (2) has a diagnosis of fibromyalgia, which was diagnosed prior to December 31, 2016 and is 10 percent disabling as continuous medication is required. See 38 C.F.R. § 4.71a, Diagnostic Code 5025 for Fibromyalgia. The Veteran's fibromyalgia is manifested by symptoms such as joint pain, muscle pain, and fragile bones. Given the medical and lay evidence outlined above, and after resolving all doubt in the Veteran's favor, the Board concludes that service connection for fibromyalgia with chronic joint pain, chronic muscle pain, and fragile bones is warranted. See 38 C.F.R. § 3.102. Claim to Reopen Service Connection for Multiple Myeloma VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a January 2010 rating decision the RO denied service connection for multiple myeloma on the basis that there was no indication that the Veteran was exposed to depleted uranium and radiation during service, multiple myeloma was not documented in the service treatment records, it did not manifest to a compensable degree within one year of separation from service, and there was no medical evidence of record showing that multiple myeloma was linked to service. The Veteran was notified of the RO's decision and the decision became final as the Veteran did not appeal it. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence added to the record since the January 2010 rating decision includes a VA opinion dated in August 2013 whereby the examiner concluded that myeloma is very likely due to the Veteran's service in the Gulf War. The Board finds that the evidence received is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim as a medical professional linked the Veteran's myeloma to her service in the Southwest Asia theater of operations. The credibility of the evidence is presumed for the purpose of reopening the claim of service connection for multiple myeloma. The claim as to this matter must be reopened. ORDER Service connection for fibromyalgia with chronic joint pain, chronic muscle pain, and fragile bones is granted. As new and material evidence has been submitted to reopen the claim of service connection for multiple myeloma (also claimed as bone cancer), the appeal to this extent is allowed. REMAND As stated above, the Veteran served in Southwest Asia from February 13, 1991 to May 9, 1991. Persian Gulf veterans can be entitled to compensation for a disability due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a). The Veteran contends that she has chronic fatigue syndrome and sleep disorder due to service in the Gulf War. She avers that these conditions are due to an unexplained or undiagnosed illness as well as exposure to depleted uranium and environmental toxins. See March 2016 Board hearing transcript. She stated that when she initially arrived in Saudi Arabia, she was housed in an old hangar. Afterwards she moved every three days, stayed in tents and was subjected to horrible sandstorms and oil well fires. Id. Her DD 214 shows that during service she was a material storage and handling specialist. As for chronic fatigue syndrome based on the evidence currently of record, it is unclear whether the Veteran meets the criteria for a diagnosis of chronic fatigue syndrome. For VA purposes, a diagnosis of chronic fatigue syndrome includes (1) new onset of debilitating fatigue severe enough to reduce daily activities 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: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. See 38 C.F.R. § 4.88(a). However, on VA DBQ examination in May 2013 the examiner opined that chronic fatigue syndrome was secondary to multiple myeloma. Thus the Veteran should be afforded a VA Gulf War Protocol examination to determine whether she meets the criteria for a diagnosis of chronic fatigue syndrome. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore the issues of service connection for multiple myeloma and chronic fatigue syndrome are intertwined as the Veteran's claim of service connection for multiple myeloma is being remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As for a chronic sleep disorder, sleep disturbances as a symptom have been associated with chronic fatigue syndrome and fibromyalgia. See September 2015 VA DBQ examinations. In September 2015 the VA physician's assistant also opined that the Veteran's insomnia was more likely than not caused by events during service. Thus it is unclear whether the Veteran's sleep disorder is a symptom of chronic fatigue syndrome and fibromyalgia or a separate disease entity related to her active service. The Veteran has not been afforded a VA Gulf War Protocol examination to determine the nature and etiology of her sleep disorder. Thus on remand, the VA Gulf War examiner must also address this matter. See McLendon, supra. As for the claim of service connection for multiple myeloma, which was diagnosed in 2007, the Veteran contends that there are duel theories of entitlement to service connection. First, she testified that it is due to depleted uranium and other environmental toxins during the Gulf War as she was exposed to dead bodies, burning vehicles, oil well fires, sand, and dust. Second, she testified that the myeloma was due to her exposure to ionizing radiation from the depleted uranium used in the Gulf War. The Veteran explained that research shows that depleted uranium was used in the munitions, has a long lifespan and can cause malignancies. See March 2016 Board hearing transcript. She submitted a September 1999 article from the Gulf War Review newsletter regarding a VA depleted uranium screening program for Gulf War veterans. The article explained that depleted uranium is radioactive and Gulf War veterans were exposed by being in close proximity to munitions, vehicles, and smoke. In April 2013, August 2013, and September 2015 a VA physician's assistant opined that the Veteran's myeloma is due to exposure to depleted uranium and environmental toxins during service. However, in a December 2013 opinion a VA physician opined that multiple myeloma was less likely than not incurred in or caused by service as the medical literature shows that the cause of multiple myeloma is not presently known. He concluded that to say that the Veteran's multiple myeloma is secondary to exposures during service would require resorting to speculation. Thus, on the Gulf War Protocol Examination, the examiner also must reconcile these discrepancies and address the nature and etiology of the multiple myeloma. Alternatively, if the development requested for service connection for multiple myeloma based on Gulf War service is unfavorable to the Veteran's claim, additional development will be necessary regarding the Veteran's claimed theory of entitlement based on radiation exposure. Service connection may be established if the evidence shows (1) that a veteran was exposed to ionizing radiation, and (2) the veteran has a "radiogenic disease" that is attributable to such exposure. See 38 C.F.R. § 3.311(b). Multiple myeloma is a radiogenic disease as is contemplated by 38 C.F.R. § 3.311(b)(2). Although 38 C.F.R. §§ 3.309 and 3.311 discuss potential causes of ionizing radiation exposure, neither of these sections discuss the potential impact of ionizing radiation exposure due to exposure to depleted uranium. As discussed above, the Veteran submitted a September 1999 article from the Gulf War Review newsletter, which explained that depleted uranium is radioactive and Gulf War veterans were exposed to it by being in close proximity to munitions, vehicles, and smoke. In August 2013 the U.S. Army Dosimetry Center confirmed that they were unable to locate records showing that the Veteran was exposed to ionizing radiation during service. While depleted uranium handling was not specifically contemplated by VA regulations, 38 C.F.R. § 3.311 does not require affirmative evidence of ionizing radiation exposure before obtaining a dose estimate from the Under Secretary for Health. Rather a dose assessment is required whenever a radiogenic disease has been identified (as it is here) and "it is contended that the disease is a result of exposure to ionizing radiation in service." 38 C.F.R. § 3.311(a)(1). This is a low threshold; and, moreover, the Veteran is not required to produce evidence of her claimed exposure if such exposure is consistent with the nature of her service. 38 C.F.R. § 3.311(a)(4)(ii) . Here, given the fact that the Veteran during service was a material storage and handling specialist and served in the Gulf War where depleted uranium was used, there is insufficient evidence to rebut her assertions that she was exposed to depleted uranium in some capacity. The Board is also unable to conclude on its own that exposure to depleted uranium did not result in some level of ionizing radiation exposure. Thus if the Veteran's claim of service connection for multiple myeloma is not granted based on exposure to environmental toxins in the Gulf War, the issue must be remanded for a dose estimate and a medical opinion in accordance with 38 C.F.R. § 3.11(a)(2)(iii),(b),and (c). In a July 2012 statement that Veteran asserted that she was receiving disability benefits from the Social Security Administration (SSA) due to her myeloma and compromised immune system. As there may be underlying medical records at SSA that are relevant to the issues on appeal, an effort needs to be made to obtain them. The Veteran's assistance also should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Obtain and associate all pertinent SSA records. 2. Then, schedule the Veteran for a VA Gulf War Protocol examination with an examiner with the appropriate expertise to determine the nature and etiology of chronic fatigue syndrome, chronic sleep disorder to include insomnia, and multiple myeloma. The claims file should be made available to the examiner. All studies and tests deemed necessary by the examiner should be performed. The examiner is asked to address the following: a.) Does the Veteran meet the diagnosis of chronic fatigue syndrome pursuant to 38 C.F.R. § 4.88a? If so, has it existed for six months or more? b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran has a chronic sleep disorder to include insomnia that is due to (1) an undiagnosed illness, or (2) medically unexplained chronic multisystem illness, or (3) diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis? c.) If the examiner determines that the Veteran's chronic sleep disorder to include insomnia is either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis then the examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent) that the sleep disorder was incurred in service? d.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran has multiple myeloma due to exposure to depleted uranium and/or environmental hazards while serving in Southwest Asia during the Persian Gulf War? In rendering any of the above opinions the examiner must consider the following: a.) The Veteran served in Southwest Asia from February 1991 to May 1991. b.) The Veteran's DD 214 shows that during service she was a material storage and handling specialist. c.) The Veteran contends that during service in the Gulf War she was exposed to depleted uranium and environmental toxins and was subjected to horrible sandstorms and oil well fires. See March 2016 Board hearing transcript. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. 3. If the VA Gulf War examiner determines that the Veteran's multiple myeloma is not due to the Veteran's exposure to depleted uranium and environmental toxins during service in the Gulf War, then the AOJ should undertake all indicated development referable to the claim of service connection for multiple myeloma in accordance with 38 C.F.R. § 3.11(a)(2)(iii),(b),(c), and (e). Probable dose estimates should be obtained from the Under Secretary for Health and an opinion should be sought from the Under Secretary for Benefits as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's multiple myeloma resulted from in-service radiation exposure. The RO should provide all pertinent evidence, to include the specific factors for consideration enumerated in 38 C.F.R. § 3.311(e). 4. After completion of the foregoing, readjudicate the claims on appeal. If any of the benefits sought remain denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs