Citation Nr: 18148025 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-50 386 DATE: November 6, 2018 ORDER The application to reopen the claim of service connection for chronic fatigue syndrome, claimed as a presumptive illness and an undiagnosed illness, is denied. FINDINGS OF FACT 1. The RO denied service connection for an undiagnosed illness in a March 2011 decision. The RO notified the Veteran of the determination and her appellate rights, the Veteran did not appeal the decision, and it became final. 2. New and material evidence has not been associated with the claims file since the March 2011 rating decision. CONCLUSIONS OF LAW 1. The March 2011 rating decision that denied service connection for an undiagnosed illness is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for chronic fatigue syndrome, claimed as a presumptive illness and an undiagnosed illness, has not been received. 38 U.S.C §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to March 1990, and December 1990 to July 1991. The Veteran served in the Southwest Asia theater of operations during the Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a March 2011 rating decision, the RO denied service connection for an undiagnosed illness as there was no evidence that the Veteran had the claimed condition. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the March 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the March 2011 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran’s claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran submitted a fully developed service connection claim in May 2015 for an unexplained chronic multi-symptom illness related to her service in the Gulf War, which the RO construed as a request to reopen. In August 2015 and April 2016 rating decisions, the RO reopened the claim, but denied service connection for an undiagnosed illness. The Veteran filed a timely notice of disagreement. The Board finds the evidence submitted since the March 2011 rating decision to be new, but not material. The evidence consists of lay statements regarding the Veteran’s mental health, VA mental health treatment notes, and VA mental health examinations. The Board notes that the Veteran is currently service-connected for PTSD with insomnia. The evidence submitted since March 2011 also makes references to fatigue, but this symptom was noted as a symptom associated with the Veteran’s psychiatric disorders. The newly obtained August 2015 Gulf War VA examination report fails to show that the Veteran has any undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. The Veteran has not provided material evidence to show that she either has a current diagnosis of chronic fatigue syndrome, or an undiagnosed illness etiologically related to her military service. As new and material evidence has not been received, the Veteran’s claim of service connection for chronic fatigue syndrome, claimed as a presumptive illness and an undiagnosed illness, is not reopened. The application is therefore denied. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel