Citation Nr: 1741925 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 13-36 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for fatigue. 2. Entitlement to service connection for fatigue (claimed as chronic fatigue), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 3. Entitlement to an increased rating for osteoarthritis, C5-C6 and multilevel cervical degenerative disc disease (DDD), currently rated 20 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to September 1992. These matters come before the Board of Veterans Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the agency of original jurisdiction (AOJ) characterized the fatigue issue on appeal as entitlement to service connection for chronic fatigue and adjudicated this issue on a de novo basis in the April 2011 rating decision and an October 2013 statement of the case. Regardless, a claim of service connection for fatigue was denied by way of a May 2003 rating decision. Where the claim in question has been finally adjudicated, the law and regulations make clear that the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for fatigue. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, despite the prior characterization of the issue throughout the appeal, the Board has re-characterized the fatigue issue on appeal as reflected on the title page. In March 2014, after the claims were certified to the Board, the Veteran submitted additional evidence directly to the Board, accompanied by a waiver of local consideration. The waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2016). In March 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. Entitlement to a TDIU has been raised as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The issues of entitlement to an increased rating for the cervical spine disabilities and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A May 2003 rating decision denied entitlement to service connection for fatigue. The Veteran did not appeal and new and material evidence was not received within one year of that decision. 2. The additional evidence received since the May 2003 rating decision denying the Veteran's claim of service connection for fatigue relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's fatigue is due to an undiagnosed illness and manifested to a compensable degree. CONCLUSIONS OF LAW 1. The May 2003 rating decision denying the claim for entitlement to service connection for fatigue is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2016). 2. Additional evidence received since the May 2003 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for fatigue have therefore been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for fatigue due to an undiagnosed illness are met. 38 U.S.C.A. §§ 1110, 1117, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). 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). In May 2003, the RO denied the Veteran's claim for entitlement to service connection for fatigue. When notified of this denial the Veteran indicated disagreement solely with the service connection for posttraumatic stress disorder claim, but did not appeal the fatigue issue. Further, he did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran's claim of service connection for fatigue was denied because there was no evidence of fatigue that was incurred in or was aggravated by service. At the March 2017 Board hearing, the Veteran testified that his treating physicians have been unable to treat and assign a diagnosis to his symptoms. He stated that some physicians attributed his fatigue to a diagnosis, whereas others stated that he did not have a fatigue diagnosis. This evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. The evidence is thus new and material and the criteria for reopening of the claim for entitlement to service connection for fatigue have therefore been met. Service Connection The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Given the favorable actions taken below concerning the claim for entitlement to service connection for fatigue, the Board will not discuss further whether those duties have been accomplished. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 81 Fed. Reg. 71382 (Oct. 17, 2016). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317(a)(ii). The Board notes that Congress revised 38 U.S.C.A. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (including but not limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). Because the Veteran served in the Southwest Asia Theater of operations from September 19, 1990 to April 11, 1991, he is a Persian Gulf veteran within the meaning of the applicable statute and regulation. It must now be determined whether the Veteran's fatigue is associated with an undiagnosed illness or medically unexplained chronic multisymptom illness other qualifying chronic disability that became manifest either during the Veteran's Persian Gulf War service or to a degree of 10 percent or more after separation from service. In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has consistently indicated that he has fatigue, which is specifically listed as a sign or symptom of undiagnosed illness and medical unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(b)(1). Service treatment records contain no complaints of or treatment for fatigue. Post-service VA treatment records document complaints of fatigue. In November 2007 the Veteran complained of insomnia and the inability to stay asleep. He reported daytime somnolence and overall fatigue after the inability to sleep. An assessment recommending further evaluation of this problem, suspecting that the Veteran had obstructive sleep apnea, was provided. In December 2007, he continued to complain of insomnia and ongoing fatigue. In October 2010 correspondence, the Veteran reported fatigue and symptoms of joint pain, tiredness, and inconsistent sleep patterns. He reported that a VA physician told him that he did not have sleep apnea and that his fatigue may be attributed to medication. In 2009 he was prescribed medication to aid with sleep problems, however, it did not prevent fatigue. Additional post-service VA treatment records continue to document complaints of fatigue. In June and September 2011 psychiatry progress notes document the Veteran's complaints of worsening fatigue despite medication changes. During the September 2011 visit, a diagnosis of chronic fatigue syndrome was provided based on the Veteran showing 5 of 8 CDC symptoms of chronic fatigue syndrome. In November 2011, the Veteran reported less fatigue with medication change. In March 2012 the Veteran continued to complain of persistent fatigue despite medication. The Veteran was afforded a VA examination in March 2011. He reported daily fatigue and the inability to fall and stay asleep. He also reported symptoms of constant joint pain and tenderness. Based on a review of the claims file, the examiner noted that there is no diagnosis of chronic fatigue syndrome. However, the Veteran has been prescribed numerous medications that contribute to fatigue. As for functional limitation, it was noted that the Veteran was employed full-time as a traffic analyst and that fatigue did not have an effect on his occupation. The Veteran was afforded another VA examination in October 2013. Based on a review of the claims file, the examiner stated that there was no objective evidence to render a diagnosis of chronic fatigue syndrome, but the Veteran's symptoms can be explained medically and do not include multi-symptom of an unknown etiology. The examiner explained that the Veteran has several diagnosed chronic medical conditions treated with medication that cause fatigue. As for functional impact, the examiner acknowledged the Veteran's reports of daily fatigue and difficulties falling and staying asleep, however, he currently works full-time as a traffic operator, commutes over 50 miles one-way, and is the caretaker for his elder mother. At the March 2015 Board hearing, the Veteran testified that he had fatigue since service. He reported that during service instead of seeking medical treatment for fatigue, he would take naps in his office. He stated that he previously thought he had chronic fatigue syndrome, however, a physician told him this was not possible because of his reported daily activities. In addition, the Veteran reported neck pain and problems sleeping. Based on the evidence above, the Board finds that service connection for fatigue due to an undiagnosed illness is warranted. The Veteran has complained of ongoing fatigue since service. Post-service evidence demonstrates that the Veteran has reported a medical history of fatigue. The March 2011 and October 2013 VA examiners both concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome. More specifically, the October 2013 examiner reviewed VA treatment records documenting a diagnosis of chronic fatigue syndrome, and concluded that there was no objective evidence to support such diagnosis. The above evidence reflects consistent complaints by the Veteran of fatigue and significant difficulties on the part of multiple medical professionals in determining the cause of this fatigue. While both VA examiners attributed fatigue to prescribed medication, VA treatment records note the possibility of chronic fatigue syndrome. The above evidence reflects difficulties over time in attributing the Veteran's fatigue to a known clinical diagnosis, and the statements of the March 2011 and October 2013 VA examiners indicated that the Veteran's symptoms do not support a diagnosis of chronic fatigue syndrome. However, chronic fatigue syndrome is an example of a medically unexplained chronic multisymptom illness, while fatigue is an example of sign or symptoms of such or an undiagnosed illness. Entitlement to service connection may therefore be warranted for fatigue even where a diagnosis of chronic fatigue syndrome has not been supported. Moreover, the criterion of manifesting to a compensable rating has been met. The Veteran's fatigue is rated by analogy under Diagnostic Code 6354 for Chronic Fatigue Syndrome. Under this code, ratings are provided for symptoms including debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; if the symptoms are controlled by continuous medication. Here, the Veteran's continuous medication to treat his fatigue symptoms warrants a compensable rating. See September 2011, November 2011, and March 2012 VA Treatment Records. For the above reasons, the evidence is at least evenly as balanced as to whether the Veteran has fatigue that is due to an undiagnosed illness. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for fatigue due to an undiagnosed illness is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The application to reopen the claim for service connection for fatigue is granted. Entitlement to service connection for fatigue due to undiagnosed illness is granted. REMAND With respect to the Veteran's claim for a higher rating for his cervical spine disabilities, the Board finds that a remand is warranted in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the findings of the Veteran's service-connected osteoarthritis, C5-C6 and multilevel cervical degenerative disc disease, documented in the most recent October 2013 VA examination report do not meet the specifications of Correia. Specifically, the examiner did not address whether the range of motion testing of the spine was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the examination is inadequate. Therefore, further examination is necessary prior to adjudicating this claim. As for the claim for a TDIU, at the March 2017 Board hearing, the Veteran requested consideration of entitlement to TDIU benefits, if applicable. He reported that he stopped working in 2015. As the Veteran has one service-connected disability, posttraumatic stress disorder (PTSD), rated at 50 percent disabling and his combined evaluation is 70 percent, he is eligible for consideration of a scheduler TDIU. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for TDIU is part and parcel of a claim for increased evaluation). As the AOJ has not had an opportunity to develop and adjudicate this issue in the first instance, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940), a remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to a TDIU, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940). 2. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected cervical spine disabilities. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination reports should note that review. Any indicated evaluations, studies, and tests should be conducted. The examinations should be conducted in accordance with the current disability benefits questionnaires, to include testing consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, in conducting range of motion tests of the joints, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the left and right joints (as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to all appropriate ranges of spine motion: What is the extent of any additional limitation of motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The examiner should also report whether there is any ankylosis. If ankylosis is present for the cervical spine, the examiner should report whether it is favorable or unfavorable. All opinions expressed should be accompanied by supporting rationale. 3. After undertaking any other development deemed appropriate, readjudicate the claims remaining on appeal. If any benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs