Citation Nr: 18145426 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-00 474 DATE: October 29, 2018 ORDER The petition to reopen a claim of service connection for chronic fatigue syndrome (CFS) is granted. Entitlement to service connection for chronic fatigue syndrome is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for peripheral neuropathy previously claimed as numbness and tingling, left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy claimed as numbness and tingling right upper extremity is remanded. Entitlement to service connection for sleep disturbance, to include narcolepsy and sleep apnea is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for CFS was last denied in a September 2011 decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 2. Evidence submitted since the September 2011 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for CFS. 3. Giving the Veteran the benefit of the doubt, his CFS is related to his active service. CONCLUSIONS OF LAW 1. Evidence received since the September rating decision that denied service connection for CFS, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. The criteria for entitlement to service connection for CFS have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1990 to January 1994. Service Connection 1. Whether new and material evidence has been received to reopen a claim of service connection for CFS In September 2011, the RO denied the Veteran’s claim for service connection for a CFS on the basis that there was no current diagnosis. He did not submit a notice of disagreement (NOD) or new and material evidence within one year of the denial. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the September 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. Service personnel records were obtained and associated with the claims file in January and June 2012. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c) (2017). If the newly received service department records do not remedy defects in the claim and contain facts that were never in question (i.e., are superfluous to the information already existing in the file at the time of the prior denial), they are not “relevant” and reconsideration is not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), reh’g denied, 880 F.3d 1378 (2018). In this case, the additional service personnel records are not relevant, as they do not pertain to the Veteran’s CFS. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1) do not apply to the facts of this case because the additional service records are not relevant to the claim. Thus, the issue has been characterized as a petition to reopen a previously denied claim. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In February 2015, the Veteran received a diagnosis of CFS. As this information pertains to a current diagnosis, reopening of the Veteran’s claim for service connection for a chronic fatigue syndrome based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 2. Entitlement to service connection for CFS Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as CFS. For purposes of this section: (1) The term Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. (2) The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e). In this case, service connection must be granted for CFS. There is no dispute that the Veteran is a Persian Gulf War veteran within the meaning of 3.317(e). His DD Form 214 confirms service in Southwest Asia. In November 2015, a VA examiner opined that the Veteran’s current condition did not meet the diagnostic protocol for CFS. The examiner stated that the Veteran did not have a diagnosis of CFS. However, a February 2015 private examiner diagnosed the Veteran with CFS and stated that the symptoms are constant and have been since 1993. The November 2015 VA examiner stated that the February 2015 private examiner did not have access to any records other than treatment records and that a “full review” of the Veteran’s records demonstrate that he does not meet the criteria. The records show that since 1994, and continuing, the Veteran has been consistent about his reports of chronic fatigue. The Veteran is competent to report his fatigue symptoms and his reports are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s history of reports of fatigue began within one year of his separation from service and has manifest to a degree of 10 percent or more prior to December 31, 2021. The Board assigns equal probative weight to the February 2015 private opinion and the November 2015 VA opinion. In light of the foregoing, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in a state of relative equipoise on all material elements of the claim under 38 C.F.R. § 3.317. Accordingly, the claim for service connection for CFS must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back condition because the November 2015 VA examiner’s opinion is inadequate. The examiner concluded that the Veteran’s spondylolisthesis at L5-S1 with bilateral neural foraminal stenosis at L5-S1 was not related to service because there was no in-service diagnosis of a back condition, and no established chronicity of treatment. The opinion ignores the Veteran’s lay statements and buddy statements that discuss his back pain since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). An addendum opinion is needed to address the lay evidence discussing continuity of symptoms. 2. Entitlement to service connection for peripheral neuropathy previously claimed as numbness and tingling of the right and left lower extremities is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for peripheral neuropathy of the right and left lower extremities because the November 2015 VA examiner’s opinion is inadequate. The opinion ignores the Veteran’s statements and buddy statements that discuss his peripheral neuropathy previously addressed as numbness and tingling, left lower extremity since service. Id. An addendum opinion is needed to address the lay evidence discussing continuity of symptoms. 3. Entitlement to service connection for sleep disturbances, to include narcolepsy and sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep disturbances, to include narcolepsy, sleep apnea, sleep trouble because the November 2015 VA examiner’s opinion is inadequate. The opinion ignores the Veteran’s statements and buddy statements that discuss his sleep disturbances, to include narcolepsy and sleep apnea since service. Id. An addendum opinion is needed to address the lay evidence discussing continuity of symptoms. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician to obtain an addendum opinion regarding the Veteran’s back condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back condition is related to his service. The examiner should consider the Veteran’s lay statements and buddy statements regarding persistent symptoms in the opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to a qualified clinician to obtain an addendum opinion for his peripheral neuropathy of the lower extremities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy of the lower extremities is related to his service. The examiner should consider the Veteran’s lay statements and buddy statements about persistence of symptoms in the opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Provide the Veteran’s claims file to a qualified clinician to obtain an addendum opinion for the Veteran’s sleep disorder. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder is related to his service. The examiner should consider the Veteran’s lay statements and buddy statements regarding persistent symptoms in the opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel