Citation Nr: 18146933 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-00 872 DATE: November 2, 2018 ORDER New and material evidence having been presented, the claims of entitlement to service connection for pain in neck, bilateral elbows, and bilateral shoulders, and a claim for service connection for chest cavity pain are reopened. To this limited extent only, the appeal of those issues is granted. New and material evidence having been presented, the claims of entitlement to service connection for fibromyalgia, chronic fatigue syndrome, and headaches are reopened. To this limited extent only, the appeal of those issues is granted. REMANDED Entitlement to service connection for pain in neck, bilateral elbows and bilateral shoulders is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for chest cavity pain is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An April 2009 Board decision denied the Veteran’s claims of service connection for pain in neck, bilateral elbows, and bilateral shoulders, and for chest cavity pain. 2. Evidence submitted since the April 2009 Board decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for pain in neck, bilateral elbows, and bilateral shoulders, and for chest cavity pain. 3. A September 2013 rating decision denied the Veteran’s claims of service connection for fibromyalgia, chronic fatigue syndrome, and headaches; that rating decision was not appealed, and no further evidence relevant to the Veteran’s service connection claims was submitted for a period of one year following the rating decision. 4. Evidence submitted since the September 2013 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 2009 Board decision was issued; the criteria for reopening the previously denied claim for pain in neck, bilateral elbows, and bilateral shoulders have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the April 2009 Board decision was issued; the criteria for reopening the previously denied claim for chest cavity pain have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. New and material evidence has been received since the September 2013 denial became final; the criteria for reopening the previously denied claim for fibromyalgia have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. New and material evidence has been received since the September 2013 denial became final; the criteria for reopening the previously denied claim for chronic fatigue syndrome have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 5. New and material evidence has been received since the September 2013 denial became final; the criteria for reopening the previously denied claim for headaches have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from January 1983 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2010 and two August 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2018. The Board notes that the Veteran also had a hearing before another VLJ in April 2008, at which he gave testimony on the issues of chest cavity pain and pain in neck, bilateral elbows, and bilateral shoulders. As the other VLJ is no longer a member of the Board and the Veteran has been afforded another hearing on these issues, a panel opinion or any further action is not necessary. See 38 U.S.C. § 7107; Arneson v. Shinseki, 24 Vet. App. 379 (2011). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A Board decision becomes final the date it is issued, which is the date stamped on the face of the decision. 38 U.S.C. § 511; 38 C.F.R. § 20.1100. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). 1. Whether new and material evidence has been received to reopen a claim for service connection for pain in neck, bilateral elbows, and bilateral shoulders, and for chest cavity pain The Veteran filed his initial claims for joint and chest pain in September 2005. The RO denied service connection for these claims in an August 2006 rating decision that the Veteran properly and timely appealed. The Board denied the claims in an April 2009 decision, based on a finding that there were no objective signs of an undiagnosed illness. As the Board decision became final upon its issuance, new and material evidence is required to reopen the claims of service connection for pain in neck, bilateral elbows, and bilateral shoulders, and for chest cavity pain. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1100. Since the April 2009 rating decision, the Veteran has submitted written statements from family and friends who have witnessed the pain he reported experiencing. VA treatment records showing laboratory tests run by his primary care physician appearing to rule out underlying causes of the pain have also been added to the record, and the Veteran testified at a Board hearing in July 2017. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claims of service connection has been received in this case, and the claims are reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Whether new and material evidence has been received to reopen a claim for service connection for fibromyalgia, chronic fatigue syndrome, and headaches The Veteran filed his initial claims for service connection for fibromyalgia, chronic fatigue syndrome, and headaches in October 2012. In a September 2013 rating decision, the RO denied service connection for the fibromyalgia and chronic fatigue syndrome claims as the Veteran lacked a diagnosis of either. The RO denied service connection for headaches based on a finding that they were not documented in the Veteran’s current treatment records. The Veteran was notified of that decision in an October 2013 notice letter. The Veteran did not submit a notice of disagreement with the decision within one year of that notice letter, nor did he submit any additional new evidence respecting the claim until he filed his petition to reopen service connection in July 2015. As no timely notice of disagreement or new and material evidence was received during the appeal period following the October 2013 notice letter, the September 2013 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for fibromyalgia, chronic fatigue syndrome, and headaches. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the September 2013 rating decision, evidence of a current disability has been associated with the record, and the Veteran testified at a Board hearing in July 2018. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claims of service connection for fibromyalgia, chronic fatigue syndrome, and headaches has been received in this case, and the claims are reopened. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran reported a diagnosis of fibromyalgia in his medical records. However, the only diagnosis of fibromyalgia in the VA and private treatment records appears to a report by the Veteran to his primary care physician that he had experienced fibromyalgia since approximately 1995. The physician noted chronic pain and did not make any other diagnoses to explain this pain. The Veteran was afforded a VA fibromyalgia examination in August 2013, at which the examiner opined that the Veteran did not have fibromyalgia because his medical records did not reflect a fibromyalgia diagnosis and there were no rheumatology notes to support such a diagnosis. In other words, the examiner appears to have impermissibly dismissed the Veteran’s otherwise competent and credible reports of chronic pain in several major joints solely because these complaints were not documented in treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The Veteran was afforded a VA Gulf War examination in October 2014, at which the examiner opined that the Veteran did not meet the criteria for fibromyalgia, as there was no objective evidence of widespread pain. The examiner noted, however, the Veteran’s complaints of chronic pain in his knees, hips, low back and neck; in the context of fibromyalgia, widespread pain is considered to be pain that manifests bilaterally and above and below the waist. As such, this opinion is also inadequate, and a new examination is necessary to address all of the Veteran’s reports of pain and whether they coincide with a diagnosis of fibromyalgia. 2. Entitlement to service connection for pain in neck, bilateral elbows and bilateral shoulders; for chest cavity pain; for chronic fatigue syndrome; and for headaches is remanded. As the development for the fibromyalgia claim may elicit evidence regarding these remaining claims associated with an undiagnosed illness, these are intertwined with the fibromyalgia claim and are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the RO should obtain a medical opinion particular to each of these claims, addressing whether they are symptoms of any diagnosed fibromyalgia or manifestations of an undiagnosed illness due to service in the Southwest Theater of Operations. 3. Entitlement to an evaluation in excess of 30 percent for service-connected PTSD is remanded. At the July 2018 Board hearing, the Veteran testified that his symptoms had worsened since the last examination. Although the Veteran submitted a psychological report from a private evaluator, it does not describe the Veteran’s symptoms in sufficient detail to determine the current severity of the service-connected PTSD. Because it appears that the disability has worsened since the last evaluation, a new VA examination is necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 4. Entitlement to a TDIU is remanded. The TDIU issue is intertwined with the above remanded issue and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA Persian Gulf War examination and a VA general examination. These examinations may be scheduled for the same date or even performed by the same examiner. The key point is that the examiner or examiners should evaluate the Veteran’s clinical and disability picture more holistically in providing information regarding the Gulf War claims (i.e., consider “joint pain” as a symptom rather than “bilateral elbow pain” and in considering whether the Veteran’s symptoms in general suggest Gulf War illness) AND ALSO evaluate each claimed disability separately in providing the requested information for the direct service connection claims (i.e., was the Veteran’s neck disability incurred in or otherwise related to active service). The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner and the RO and regrets the need to remand the case to the RO. However, the Board is unable to adjudicate the claims until the requested information is provided. Therefore, the Board must ask the VA examiners and the RO to ensure compliance with the following directives (that is, full and thoroughly-explained answers to each of the questions) to avoid additional delays in adjudication. GULF WAR EXAMINATION INSTRUCTIONS In responding to the questions below, the examiner may wish to consider the UpToDate article Medical Care of the Returning Veteran. Roy, MJ and Perkins, Jeremy, Medical Care of the Returning Veteran, In: UpToDate, Post, TW (Ed), UpToDate, Waltham, MA, 2018 (accessed September 26, 2018). This article may provide helpful information about the links between Gulf War service and medical conditions including chronic pain/arthritis and fatigue. The examiner must address the Veteran’s lay statements in the record regarding chronic joint pain manifesting in his knees, hips, elbows, neck, and shoulders, as well as the written statements from the Veteran’s friends and families describing attacks of pain. Although the Veteran’s records contain diagnoses of arthritis, the examiner should consider all reported symptoms in evaluating whether the Veteran’s clinical picture AS A WHOLE suggests a Gulf War illness. Based on a review of the entire record, examination of the Veteran, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: i) Are the Veteran’s symptoms (including but not limited to muscle pain, joint pain, fatigue, and headaches) attributable to fibromyalgia, and/or another medically unexplained chronic multisymptom illness? In answering this question, the examiner should consider the Veteran’s reports of “joint pain” as a WHOLE; rather than, as the done in the prior examination, only evaluating each joint condition separately, e.g., left elbow arthritis. ii) Are the Veteran’s symptoms and disability pattern objective indications of a chronic undiagnosed illness? Again, please consider the Veteran’s symptoms holistically. In other words, please explain if the Veteran’s symptoms, including but not limited to, joint pain, muscle pain, fatigue, headaches, etc. suggest Gulf War illness. iii) Are the Veteran’s symptoms and disability pattern consistent with (1) a diagnosable chronic multisymptom illness with a partially explained cause or (2) a disease with a clear and specific cause and diagnosis? Please see below for definitions of these terms. iv) If it is determined that the Veteran’s symptoms are manifestations of either (1) a diagnosable chronic multisymptom illness with a partially explained cause, or (2) a disease with a clear and specific cause and diagnosis, then please provide an opinion as to whether the disease or illness is related to in-service incidents and environmental exposures during deployment to the Southwest Asia theater of operations. For purposes of this examination, the examiner must consider the following: i) “Medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or cause that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. ii) “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. iii) Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. GENERAL EXAMINATION INSTRUCTIONS In responding to the questions below, the examiner may wish to consider the UpToDate article Medical Care of the Returning Veteran. Roy, MJ and Perkins, Jeremy, Medical Care of the Returning Veteran, In: UpToDate, Post, TW (Ed), UpToDate, Waltham, MA, 2018 (accessed September 26, 2018). This article may provide helpful information about the links between Gulf War service and chronic pain and fatigue. Please answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. Identify any cervical spine disabilities; left or right shoulder disabilities; left or right elbow disabilities; and chest cavity disabilities. Any needed diagnostic testing should be performed. In answering this question, the examiner should specifically discuss the Veteran’s reports of attacks of pain, as well as the Veteran’s reports in the record of knee pain, hip pain, and low back pain. The examiner should opine whether it is at least as likely as not (a 50 percent or better probability) that any diagnosed neck, shoulder, or elbow disability 1) had its onset in active service (for arthritis within one year of separation from any period of active service) OR 2) is otherwise related to the Veteran’s service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected PTSD. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel