Citation Nr: 18149385 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-46 562 DATE: November 9, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for fibromyalgia. FINDINGS OF FACT 1. By a June 2011 rating decision, the Veteran’s claim of entitlement to service connection for fibromyalgia was denied. 2. Evidence received since the June 2011 RO decision, by itself, or when considered with previous evidence of record, does not relates to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2011 rating decision denying service connection for fibromyalgia is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for fibromyalgia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1983 to June 1983, from June 1996 to September 1996, and from October 2001 to July 2002. 1. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “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’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, service connection may be granted for claims related to service during the Persian Gulf War due to a medically unexplained chronic multi-symptom illness, such as fibromyalgia. Gutierrez v. Principi, 19 Vet. App. 1 (2004). The chronic disability must result from an illness or combination of illnesses manifested by one or more signs and symptoms that (1) became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or (2) manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i)-(ii). In the June 2011 rating decision, the Veteran’s claim of entitlement to service connection for fibromyalgia was denied based on the finding that the Veteran’s condition is consistent with chronic opioid use as a result of long term pain control as opposed to fibromyalgia. At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, the Veteran’s statements, private treatment records and VA examination dated November 3, 2010. The evidence received since the June 2011 rating decision includes VA treatment records and an article listing the symptoms of fibromyalgia. The additional evidence of VA treatment records and the article are not new and material. The article does not pertain to an unestablished fact in this case as it provides general information that is not specific to the Veteran; therefore, it is not material. The VA treatment records merely reconfirm that the Veteran does not meet the criteria for a diagnosis of fibromyalgia as his symptoms are attributable to other causes, such as chronic joint pain. As this evidence is repetitive of the findings from the VA examiner in November 2010, who also attributed the Veteran’s symptoms to other causes such as, long term opioid use, severe depression, and possible chronic pain syndrome, it does not raise a reasonable possibility of substantiating the claim. As there is no new and material evidence to reopen the claim of entitlement to service connection for fibromyalgia, the petition to reopen is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel