Citation Nr: 18149409 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-30 238 DATE: November 9, 2018 ORDER Application to reopen a claim of service connection for memory loss to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for chronic fatigue syndrome to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a right wrist disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a left wrist disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a neck disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a left knee disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a right ankle disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a left ankle disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a right elbow disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for a left elbow disability to include as due to an undiagnosed illness is granted. Application to reopen a claim of service connection for infertility to include as due to an undiagnosed illness is denied. Application to reopen a claim of service connection for pulmonary lung fibrosis to include as due to an undiagnosed illness is denied. Application to reopen a claim of service connection for spontaneous pneumothorax to include as due to an undiagnosed illness is denied. REMANDED Entitlement to service connection for memory loss to include as due to an undiagnosed illness is remanded. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a right wrist disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a left wrist disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a neck disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a left knee disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a right ankle disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a left ankle disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a right elbow disability to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a left elbow disability to include as due to an undiagnosed illness is remanded. FINDINGS OF FACT 1. A May 2008 rating decision earlier denied the Veteran’s claims of service connection for chronic fatigue syndrome, memory loss, bilateral wrist disabilities, infertility, pulmonary lung fibrosis, a neck disability, a left knee disability, bilateral ankle disabilities, a spontaneous pneumothorax, and bilateral elbow disabilities; the claimant did not appeal this decision; he did not thereafter submit new and material evidence within the one-year appeal period; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period. 2. Evidence received since the May 2008 rating decision is new, it is related to an unestablished fact necessary to substantiate the claims of service connection for chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities, and it raises a reasonable possibility of substantiating the claims. 3. Evidence received since the May 2008 rating decisions does not relate to an unestablished fact necessary to substantiate the claims of service connection for infertility, pulmonary lung fibrosis, and a spontaneous pneumothorax. CONCLUSIONS OF LAW 1. The May 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claims of entitlement to service connection for chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities is new and material and therefore the claims are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has not been submitted sufficient to reopen claims of entitlement to service connection for infertility, pulmonary lung fibrosis, and a spontaneous pneumothorax. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from July 1988 to November 1991. In May 2014 the Veteran testified at a hearing at the regional office (RO) before a Decision Review Officer (DRO) and in August 2016 he testified at a hearing before the undersigned. Transcripts of both hearings have been associated with the record. In August 2018, the Board of Veterans’ Appeal (Board) received the Veteran’s waiver of agency of original jurisdiction (AOJ) review of the additional evidence added to the record since the issuance of the June 2015 statement of the case (SOC). The Applications to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 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). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that a May 2008 rating decision earlier denied the Veteran’s claims of service connection for chronic fatigue syndrome, memory loss, bilateral wrist disabilities, infertility, pulmonary lung fibrosis, a neck disability, a left knee disability, bilateral ankle disabilities, a spontaneous pneumothorax, and bilateral elbow disabilities. The decision denied his claims of service connection for memory loss, chronic fatigue syndrome, infertility, and pulmonary lung fibrosis because the record did not show he had these disabilities. The decision denied his claims of service connection for a neck disability, a left knee disability, bilateral ankle disabilities, a spontaneous pneumothorax, bilateral wrist disabilities, and bilateral elbow disabilities because the record did not show the post-service disabilities were due to his military service. The decision also denied service connection for chronic fatigue syndrome, memory loss, pulmonary lung fibrosis, a spontaneous pneumothorax, bilateral wrist disabilities, and bilateral elbow disabilities because they were not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, and/or a diagnosable chronic multisymptom illness with a partially explained etiology. The Veteran did not appeal the May 2008 rating decision. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of the May 2008 rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the May 2008 rating decision. See Turner, super. Accordingly, the Board finds that the May 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final May 2008 rating decision, the Veteran, his representative and/or VA obtained and associated with the claims file additional medical records and written statements in support of the claims and the appellant testified at one personal hearing at the RO and one before the undersigned. a. chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities As to the chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities claims, the medical records added to the record since the time of the final May 2008 decision includes for the first time a diagnosis of Gulf War syndrome and an opinion that it causes fatigue, memory loss, and arthralgia in multiple joints. See, e.g., VA treatment records dated in September 2010, October 2010, December 2010, January 2012, and April 2014. Therefore, because a current disability is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that this medical evidence constitutes new and material evidence and these claims are reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. b. infertility and pulmonary lung fibrosis As to infertility and pulmonary lung fibrosis, since the time of the final May 2008 rating decision the written statements in support of the claims from the Veteran and his representative, as well as the personal hearing testimony, state, in substance, that the appellant is entitled to service connection for these disabilities because they are due to his military service. These same claims were, in substance, already before VA at the time of the earlier May 2008 rating decision. Therefore, the Board finds that these statements and testimony are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. Simply stated, the Veteran has repeated his claims without providing new evidence. His statements are not new. As to the additional medical records since the time of the final May 2008 rating decision, they continue to be negative for a diagnosis of infertility and pulmonary lung fibrosis, an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, and/or a diagnosable chronic multisymptom illness with a partially explained etiology. See 38 C.F.R. §§ 3.303, 3.317; Hickson, supra. Therefore, the Board finds that these medical records are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. c. a spontaneous pneumothorax As to a spontaneous pneumothorax, since the time of the final May 2008 rating decision, the written statements in support of the claim from the Veteran and his representatives as well as the personal hearing testimony state, in substance, that the appellant is entitled to service connection for a spontaneous pneumothorax because it was due to his military service. These same claims were, in substance, already before VA at the time of the earlier May 2008 rating decision. Therefore, the Board also finds that these statements are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. Simply stated, the Veteran has repeated his claims without providing new evidence. His statements are not new. As to the additional medical records, since the time of the final May 2008 rating decision they continue to document the Veteran’s post-service history of having had a spontaneous pneumothorax. Tellingly, these same facts were before the RO at the time of the earlier final rating decision. And, more importantly, the record continues to be negative for evidence showing the it had continued since service, a relationship between the post-service spontaneous pneumothorax and his military service, an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, and/or a diagnosable chronic multisymptom illness with a partially explained etiology. See 38 C.F.R. §§ 3.303, 3.317; Hickson, supra. Therefore, the Board finds that these medical records are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. In summary, the Board finds that the additional evidence added to the claims file since the time of the prior final May 2008 rating decision do not provide credible evidence that the a spontaneous pneumothorax is due to the Veteran’s military service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317; also see Hickson, supra. Instead, the Board finds that additional evidence added to the claims file since that time is, in substance, duplicative of evidence found in the record at the time of the prior final May 2008 rating decision. Accordingly, this claim is denied. 38 C.F.R. § 3.156(a). REASONS FOR REMAND As to the newly reopened claims of service connection for chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities, as noted above, when determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.). However, the Board has no similar duty when adjudicating claims of service connection. In fact, the United States Court of Appeals for Veterans Claims (Court) has held that in evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Therefore, while the VA treatment records that diagnosed Gulf War syndrome and opined that it causes fatigue, memory loss, and arthralgia in multiple joints are enough to reopen the claim, the Board finds that acting alone they are inadequate to meet the regulatory criteria for service connection under 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. § 3.303, 3.317 because the diagnoses are not supported by adequate rational. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Accordingly, the Board finds that a remand to provide the Veteran with a VA examination to obtain adequate etiology opinions is required. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of his chronic fatigue syndrome, memory loss, bilateral wrist disabilities, a neck disability, a left knee disability, bilateral ankle disabilities, and bilateral elbow disabilities (if any is found) to include any qualifying chronic disability under 38 C.F.R. § 3.317. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner to address the following: (a) Provide a current diagnosis for all disorders manifested by fatigue syndrome, memory loss, and pain in the wrists, neck, left knee, ankles, and elbows. If the Veteran does not now have, but previously had, any such a disability, when did that disability resolve? (b) For each diagnosed disability, is it at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service including his documented service in the Southwest Asia theater of operations? (c) If the Veteran’s diagnosis includes arthritis in any of the claimed joints, is it at least as likely as not that it manifested itself in the first post-service year? (d) If a nexus to his service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology. In providing the requested opinions, the examiner should comment on the diagnosis of Gulf War syndrome seen in the VA treatment records. Indications that the Veteran is exaggerating (if any) should be noted for the record. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In providing an answer to the above question, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel