Citation Nr: 18145410 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-19 528A DATE: October 30, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for shaking (tremors) is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for fatigue is reopened. Entitlement to service connection for fatigue is granted. REMANDED Entitlement to service connection for essential tremors is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The August 1994 rating decision that denied service connection for fatigue and nervousness (shaking) on the basis that the Veteran’s fatigue and shaking were not related to his service is final. 2. The evidence received since the August 1994 rating decision, including a June 2018 correspondence noting that there are no medical tests to diagnose essential tremors, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for essential tremors. 3. The evidence received since the August 1994 rating decision, including a March 2016 VA examination which found that the Veteran’s fatigue was due to his depression, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for fatigue. 4. Resolving reasonable doubt in the Veteran’s favor, the evidence of record favors a finding that the Veteran’s fatigue disability is related to his service-connected major depressive disorder disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for shaking (tremors). 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen a claim of service connection for fatigue. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. A fatigue disability is related to the Veteran’s service-connected major depressive disorder disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2013 rating decision, the RO in part, reopened and then denied the Veteran’s claims for service connection for fatigue and shaking. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In his substantive appeals (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge. He subsequently withdrew his hearing requests. Thus, the hearing requests are considered to be withdrawn. Service Connection Laws and Regulations 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed below, thus are applicable in this case. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1) (2017). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service connection. Factual Background and Analysis The Veteran underwent a VA examination in November 1993. He reported that when he returned from his service in the Persian Gulf, he began to experience fatigue and a constant desire to sleep. The Veteran underwent a VA Gulf War examination in October 2013. He again reported having fatigue as a result of his service in the Persian Gulf. The Veteran underwent a VA examination in March 2016 for chronic fatigue syndrome (CFS). The Veteran reported the onset of fatigue since he returned home from Operation Desert Storm in 1992 and claimed that his fatigue was a result of an undiagnosed illness due to his Persian Gulf exposures. The examiner opined that it was less likely than not that the Veteran’s claimed fatigue was incurred in or caused by the claimed in-service event, injury or illness. The examiner found that the Veteran did not fit the criteria for CFS. However, the examiner indicated that the Veteran had fatigue which was at least as likely as not due to his sleep apnea and depression disabilities. The examiner noted that the Veteran’s disability pattern was at least as likely as not a disease with a clear and specific etiology and diagnosis. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a fatigue disability as secondary to his service-connected major depressive disorder disability is warranted. The Board notes that while the March 2016 VA examiner provided a negative nexus opinion regarding service connection on a presumptive basis due to Gulf War exposure, the opinion also concludes that the Veteran’s fatigue disability was the result of his service-connected major depressive disorder disability. Notably, a March 2016 rating decision granted service connection for major depressive disorder with anxious distress at an initial 50 percent evaluation, effective March 13, 2016. Accordingly, while the March 2016 VA examiner indicated that it was less likely than not that the Veteran’s fatigue disability was incurred in or caused by the claimed in-service event, injury or illness, the examiner has in essence provided a positive nexus opinion as the Veteran’s major depressive disorder with anxiousness is a service connected disability. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In this regard, the Board notes that the March 2016 VA opinion regarding the nexus of a fatigue disability to the Veteran’s service-connected major depressive disorder is not contradicted by any other medical evidence or opinion. Again, while the March 2016 opined that it was less likely than not that the Veteran’s fatigue disability was incurred in or caused by the claimed in-service event, injury or illness, the examiner in fact provided a positive nexus opinion as he indicated that the fatigue disability is secondary to the Veteran’s service-connected major depressive disorder disability. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a fatigue disability as secondary his service-connected major depressive disorder disability is granted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. Regarding the Veteran’s claim for essential tremors, the Board notes that an October 2013 VA Gulf War examination noted that the Veteran had tremors which was a diagnosed illness for which no etiology was established. The examiner also noted that the tremors were probably due to essential tremors. On an October 2015 VA Gulf War examination, the examiner indicated that the etiology of the Veteran’s tremors was unknown as it was not always possible to determine an etiology. On a January 2016 VA examination, the examiner found that the Veteran did not have a condition related to Gulf War environmental exposure because he did not have a peripheral nerve condition. However, as noted above, multiple VA treatment records have indicated that the Veteran has been diagnosed with essential tremors. In addition, a June 2018 correspondence from the Mayo Clinic noted that there were no medical tests to diagnose essential tremors as diagnosing them was often a case of ruling out other conditions that could be causing the symptoms. As a result, the Board finds that it is unclear whether the Veteran’s essential tremor disorder is an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. While the Veteran’s tremor disorder has been diagnosed as essential tremors, it is still unclear whether such constitutes a clinical diagnosis or symptoms of a medically undiagnosed illness. Accordingly, a new VA examination is warranted to address whether the Veteran’s essential tremors constitute a clinical diagnosis or symptoms of a medically undiagnosed illness and if the tremors amount to a clinical diagnosis, if the disorder was caused and/or aggravated by the Veteran’s active duty. Regarding the Veteran’s claimed obstructive sleep apnea disability, the Board notes that the Veteran underwent a VA Gulf War examination in October 2013 where the VA examiner found that the Veteran had a diagnosis of obstructive sleep apnea as he had a disease with a clear and specific etiology and diagnosis. The examiner opined that it could not be proven that the Veteran’s obstructive sleep apnea had any relationship to his military service. However, while the October 2013 addressed the Veteran’s service connection claim on a direct basis, the March 2016 VA examiner also noted that sleep disorders like sleep apnea are associated with fatigue, cognitive dysfunction and headaches. The examiner also indicated that studies have shown that patients with sleep apnea have an approximately twofold higher incidence of depression compared with those without obstructive sleep apnea. As noted above, the Veteran is now service connected for both major depressive disorder and fatigue. As a result, the Board finds that further development is warranted so an examiner can provide an opinion to determine whether the Veteran has current sleep apnea disability that is related to his active duty service to include as being caused or aggravated by his service-connected major depressive disorder or fatigue disabilities. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). Thus, the Board finds that the evidence currently of record is insufficient to resolve the claims for entitlement to service connection for essential tremors and sleep apnea, and that further opinions in connection with these claims are necessary for a fully informed evaluation of the claims on appeal. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed essential tremor disability. Based on a review of the record and an examination of the Veteran, the examiner should determine whether the Veteran has current essential tremor disability and if so, if it is at least as likely as not related to, or had its onset during service. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that there are symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. If so, the examiner should also comment on the severity of symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A complete rationale for any opinion expressed should be provided. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed sleep apnea disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea disability is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current sleep apnea disability that is caused or aggravated by his service-connected major depressive disorder or fatigue disability. If the examiner finds that the Veteran has a sleep apnea disability that has been permanently aggravated/worsened by his service-connected major depressive disorder or fatigue disability, to the extent feasible, the degree of worsening should be identified. Adequate reasons and bases for any opinion rendered. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel