Citation Nr: 1803876 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-20 155A ) 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 service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Army from August 1989 to June 1992, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Missouri, which denied reopening entitlement to service connection for atopic dermatitis and for chronic fatigue syndrome. Jurisdiction over this case was subsequently transferred to the RO in St. Petersburg, Florida. In December 2016, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the record. The issue of entitlement to service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 2016 Travel Board hearing, prior to the promulgation of a decision on the appeal, the Board received notification from the Veteran and his representative that a withdrawal of the appeal for the reopening of service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, was requested. 2. In an unappealed December 2008 rating decision, the RO denied service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome. 3. The evidence received since the December 2008 rating decision is new and material sufficient to reopen service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal to reopen the claim of service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The December 2008 rating decision, which denied service connection for connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. The evidence received subsequent to the December 2008 rating decision is new and material to reopen service connection for connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawn Claim 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. § 7105 (2012). 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 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, the Veteran withdrew the appeal to reopen a claim to service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, at his Board hearing, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. The Board finds that his statements at the hearing qualify as a valid withdrawal of the claim in accordance with the provisions of 38 C.F.R. § 20.204. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Accordingly, the Board does not have jurisdiction to review the appeal to reopen a claim of service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, and the issue is dismissed. VA 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. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued May 2011 and August 2011 preadjudicatory notice letters to the Veteran which met the VCAA notice requirements and addressed the new and material evidence claims consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence in reference to the Veteran's claim to reopen service connection. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, private medical opinions and treatment records, a VA examination, lay statements and a Travel Board hearing transcript. While a VA medical examination is not required for the purpose of reopening the Veteran's claim, the Veteran was afforded a VA examination in August 2011. See 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4) (2017). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Reopening Service Connection The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). New evidence means existing evidence not previously submitted to agency decision makers. 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 C.F.R. § 3.156(a) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO previously denied service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, in an December 2008 rating decision, finding that the evidence failed to establish a diagnosis of chronic fatigue syndrome related to the Veteran's service in Southwest Asia during the Gulf War. The Veteran did not submit a notice of disagreement to the December 2008 rating decision, and the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In rendering the December 2008 rating decision, the RO considered the Veteran's DD Form 2014, service treatment records, VA treatment records, and a December 2008 VA examination. Therefore, the Board finds that new and material evidence must tend to establish a current diagnosis of chronic fatigue syndrome related to the Veteran's Gulf War service. Evidence received since the December 2008 rating decision includes buddy statements, lay statements, private treatment records, a private medical opinion, a July 2011 VA examination, internet articles and a December 2016 Travel Board hearing transcript. Buddy statements of record received in January 2011 from the Veteran's father and wife indicate that the Veteran showed symptoms of extreme fatigue and issues sleeping since his return from Desert Storm. Private medical records received in January 2011, dated September 2010 to December 2010, show unspecified myalgia and myositis on the Veteran's problem list. An October 2011 private medical opinion indicates that the Veteran was being treated for chronic fatigue syndrome presumptively due to gulf war syndrome. A December 2016 Travel Board hearing transcript shows the Veteran testified to having sought VA treatment for chronic fatigue syndrome in 2008 but indicated that he had fatigue, muscle aches and joint pain ever since he got back from the Gulf War and didn't realize what his problem was. Upon review of the new evidence submitted since the December 2008 rating decision, the Board finds that the Veteran presented additional lay evidence and medical evidence that tended to show a current diagnosis of chronic fatigue syndrome related to his service during the Gulf War. Accordingly, in light of the "low" threshold as announced in Shade, the Board finds that new and material evidence sufficient to reopen service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, and the claim is reopened. See 38 C.F.R. § 3.156 (2017); Shade, 24 Vet. App. 110. ORDER The appeal to reopen a claim of service connection for atopic dermatitis, claimed as unexplained rashes due to Gulf War Syndrome, is dismissed. The petition to reopen the claim of service connection for chronic fatigue syndrome, claimed as fatigue due to Gulf War Syndrome, is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C. § 5103A (2012). In a case of records held by a Federal department or agency, to include military personnel records, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id.; 38 C.F.R. § 3.159(c)(2) (2017). The Veteran's claims file includes a DD Form 214, which shows the Veteran had service with the Army from August 1989 to June 1992, with six months and 29 days of Foreign Service. The Veteran's DD Form 214 also shows he was awarded the Southwest Asia Service Medal and the Kuwait Liberation Medal. While the Veteran's DD Form 214 establishes his Persian Gulf veteran status for the purposes of 38 C.F.R. § 3.317, the Board notes that the Veteran's claims file does not include his military personnel records, and remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Additionally, in October 2011, the Veteran's private nurse practitioner, L. D. E., ARNP, of the Family Health Care of Chipley, submitted a letter indicating the Veteran was being treated for chronic fatigue syndrome, presumptively due to Gulf War Syndrome. Medical records dated September 2010 to December 2010 from this facility are of record, which indicate in a problem list that the Veteran had diagnosed unspecified myalgia and myositis, but do not include a diagnosis of chronic fatigue syndrome. Therefore, on remand, the Board finds that all outstanding medical records from the Family Health Care of Chipley should be obtained and associated with the Veteran's claims file. Pursuant to VA's duty to assist under the VCAA, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was afforded VA examinations in December 2008 and August 2011, in which VA examiners opined that the Veteran did not have currently diagnosed chronic fatigue syndrome. As indicated above, the Veteran's private nurse practitioner submitted a statement in October 2011that he was receiving treatment for chronic fatigue syndrome as related to Gulf War Syndrome. Upon the ordered record development for additional private treatment records, the Board finds that a VA examination and opinion is necessary based upon a complete review of the claims file, to include the October 2011 private medical opinion and any newly associated private medical records associated with the claims file. The VA examiner is requested to rectify any conflicting medical evidence and render an opinion as to whether the Veteran has currently diagnosed chronic fatigue syndrome, to include as related to his verified Persian Gulf service. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete military personnel records. All attempts to obtain these records should be documented in the claims file. If any of the requested records are unavailable and it is determined that further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability that is associated with the electronic record and the Veteran and his representative should be so notified. 2. Obtain and associate with the claims file all outstanding private treatment records from the Family Health Care of Chipley, to include any and all treatment records after December 2010 to present. Any necessary authorization should be obtained, to include any release that is required from the Veteran. All attempts to obtain these records should be documented in the claims file. If the records are determined to be unavailable, that should be noted in the record. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and his representative, and allow him the opportunity to provide such records. 3. Upon completion of the above development, schedule the Veteran for a VA examination to determine the nature and etiology of claimed chronic fatigue syndrome, as due to the Veteran's Persian Gulf service. The examiner is requested to provide the following opinions: i. Determine whether the Veteran has currently diagnosed chronic fatigue syndrome. ii. If the examiner determines the Veteran does not have chronic fatigue syndrome but has a separate diagnosis, the examiner is asked to render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the currently diagnosed disability is etiologically related to service. In rendering the above opinions, the VA examiner is directed to consider, but not limit review to the following evidence, and is asked to rectify any conflicting medical evidence: a. An October 2011 letter from L. D. E., ARNP, of the Family Health Care of Chipley, stating the Veteran was being treated for chronic fatigue syndrome, presumptively due to Gulf War Syndrome. b. Any and all private medical records associated with the file from the Family Health Care of Chipley. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. After all development has been completed, the AOJ should review the claims again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs