Citation Nr: 18141034 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-04 027A DATE: October 9, 2018 ORDER Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for headaches is granted. Entitlement to service connection for chronic fatigue syndrome is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to an increased disability rating in excess of 40 percent for service-connected right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Following the December 2009 rating decision denying service connection for headaches, VA sought an examination and medical opinion regarding the etiology of the Veteran’s headache disorder. 2. The Veteran does not have a diagnosis of chronic fatigue syndrome; his chronic fatigue symptoms have been attributed to fibromyalgia CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim of entitlement to service connection of a headache disorder is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for service connection of chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REFERRED The issue of entitlement to service connection for fibromyalgia was raised in a March 30, 2018, statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014, December 2015, and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for headaches The Veteran seeks to reopen a previously denied and final claim of service connection for a headache disorder. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). Therefore, even though the RO de facto reopened the claim in its September 2017 statement of the case, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue prior to adjudicating the underlying claim. Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding... as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103. A decision becomes final one year after its issuance, unless a notice of disagreement is filed. 38 C.F.R. § 20.302 (a). If a notice of disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302 (b). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The Veteran’s claim of service connection for headaches was initially denied in a December 2009 rating decision. That claim was denied because the Veteran had admitted that he experienced headaches prior to entering active service in 1974, and because at the time there was no actual proof of a presently diagnosed headache disorder. VA has declined to reopen that claim based on a lack of new and material evidence, most recently in the January 2017 rating decision in appeal. In October 2016 VA sought and obtained a medical examination and opinion regarding the Veteran’s headache disorder. That opinion addressed a possible medical nexus between his now diagnosed migraine disorder and his service-connected low back strain. This evidence is new in that it was not of record at the time of the prior denials. It is material in that addresses a previously deficient criteria of service connection, namely, a possible link to active service or to another service-connected disability. It further confirmed a present diagnosis of migraine headaches. As such, the claim of service connection for a low back disability should be reopened. To this limited extent, the appeal is granted. 2. Entitlement to service connection for chronic fatigue syndrome is denied. The Veteran seeks service connection for chronic fatigue syndrome. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). After careful consideration of the evidence, the Board finds that the claim should be denied. The Board observes that in May 2014, the Veteran was afforded an examination, but that examination declined to provide an actual diagnosis of chronic fatigue syndrome, stating that because other conditions had not been ruled out, a diagnosis of chronic fatigue syndrome is not appropriate for the reported symptoms. Specifically, the examiner noted that chronic fatigue syndrome is a diagnosis of exclusion meaning that other issues that may be causing the reported symptoms must be ruled out before such a diagnosis may be given. The examiner stated that the Veteran should follow up with his primary care provider to better evaluate the symptoms he reported (to include anemia, sleep apnea, irritable bowel syndrome, etc.). The Veteran subsequently submitted a letter from his private physician which stated that the Veteran was seen for chronic fatigue, polyarthralgia, and myalgias. Although chronic fatigue was found to be a confirmed symptom, following a physical examination and review of the Veteran’s medical record, the examiner concluded that the Veteran has “chronic fatigue, chronic insomnia, chronic muscle pain and chronic pain syndrome” which the examiner diagnosed as being symptoms of fibromyalgia, based on the ACR diagnostic criteria. The examiner noted that he explained this diagnosis to the Veteran and the Veteran voiced understanding that his chronic fatigue is a symptom of fibromyalgia and not a separate pathology of its own. The examiner further attributed his sleeping difficulties to sleep apnea and posttraumatic stress disorder (PTSD) (the Board notes that the Veteran is service-connected for PTSD) in addition to the diagnosed fibromyalgia, and therefore has three issues affecting his sleep resulting in fatigue. The Board has carefully reviewed the evidence of record but found no other evidence of a diagnosis of chronic fatigue syndrome which is separate and distinct from his diagnosed fibromyalgia. Considering the above, the Board finds that the claim for chronic fatigue syndrome must be denied as the Veteran does not have a specific diagnosis of that disability, and therefore the claim fails the primary criteria of service connection. In making this determination, the Board emphasizes that the Veteran’s symptoms have been attributed to several other disabilities, specifically his already service-connected PTSD, and fibromyalgia. The Board further notes that the Veteran, in March 2018, filed a claim to reopen his previously denied and final claim of service connection for fibromyalgia. To the extent that that claim is separate from a claim of service connection for chronic fatigue syndrome (a separate and different pathology), and the RO has yet to finish developing that separate claim (as referred above), the Board does not have jurisdiction to adjudicate that issue at this time. In sum, because the Veteran does not have a diagnosis of chronic fatigue syndrome, and because the medical evidence attributes his reported chronic fatigue symptoms to a separately diagnosed disability, fibromyalgia, the Board must deny the claim as it fails the primary criteria of service connection, namely, a presently diagnosed disability. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. As noted above, VA sought a medical opinion in October 2016 pertaining to the Veteran’s migraine headaches. Although that medical opinion was sufficient to reopen the claim of service connection, it is inadequate to fully adjudicate the claim. In his hearing, the Veteran admitted that he experienced headaches prior to active service, but asserted that they worsened during service beyond a natural progression of the disability. He further proposed that his headaches were aggravated by his service in the Persian Gulf. To date, a medical opinion has not been rendered which fully addresses aggravation by active service. Thus, a remand is necessary to afford the Veteran an adequate examination and medical opinion. 2. Entitlement to an increased disability rating in excess of 40 percent for service-connected right lower extremity radiculopathy is remanded. In his March 2018 hearing before the undersigned, the Veteran asserted that his right lower extremity radiculopathy has increased in severity since the Veteran was last examined by VA. Specifically, he and his spouse have asserted that he now experiences muscle atrophy. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right lower extremitiy radiculopathy. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to lower right extremity radiculopathy alone and discuss the effect of the Veteran’s lower right extremity radiculopathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any migraine headache disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including service in the Persian Gulf. To the extent that the Veteran admits he experienced headaches before active service, the examiner must opine whether his headaches were clearly and unmistakably not aggravated by service. the examiner should also comment whether his headaches were at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel