Citation Nr: 18151649 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-28 419A DATE: November 20, 2018 ORDER The application to reopen a claim for entitlement to service connection for rheumatoid arthritis is denied. Entitlement to service connection for joint pain, to include as an undiagnosed illness or a symptom of a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317 is denied. REMANDED Entitlement to service connection for chronic fatigue is remanded. FINDINGS OF FACT 1. A May 2007 rating decision denied entitlement to service connection for rheumatoid arthritis; the Veteran did not submit a notice of disagreement with this decision. 2. Evidence received since the May 2007 rating decision is cumulative with respect to the claim of service connection for rheumatoid arthritis. 3. The preponderance of the evidence shows the Veteran’s joint pain, including, but not limited to the hands, elbows, knees, and feet, are neither due to disease or injury incurred in active service nor due to an undiagnosed illness or a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied entitlement to service connection for rheumatoid arthritis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the March 2010 decision in relation to the Veteran’s claim for entitlement to service connection for rheumatoid arthritis is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for the Veteran’s joint pain are not met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Rheumatoid Arthritis The Veteran claims that she has rheumatoid arthritis that was either incurred in or otherwise due to service. Her claim for this disorder was previously denied. The Veteran had one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision became final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a) (2017). In a May 2007 determination, the RO denied the claim of entitlement to service connection for rheumatoid arthritis. The Veteran failed to appeal the determination and the decision became final. 38 C.F.R. § 20.1103. See 38 C.F.R. § 20.1100. As a result, the claim of entitlement to service connection for rheumatoid arthritis may only be considered on the merits if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. 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). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The May 2007 RO decision denied the rheumatoid arthritis claim because it found that diagnosed rheumatoid arthritis was not incurred in or caused by service. At the time of May 2007 decision, the record included the Veteran’s service treatment records, service personnel records, and a May 2006 letter from a private treating physician stating that the Veteran had rheumatoid arthritis. Also of record was a letter from the Veteran’s husband stating that the Veteran began experiencing joint pains when serving in Audi Arabia, and statements from the Veteran describing her symptoms and their history. Since the May 2007 rating decision, more recent VA and private treatment records have been added to the file reflecting diagnoses and treatment for rheumatoid arthritis. Additionally, the Veteran and her husband have submitted statements regarding the history of her symptoms. Evidence of a diagnosis of rheumatoid arthritis, as well as statements from the Veteran and her husband regarding the history of her symptoms and the assertion that they were linked to active service in Saudi Arabia were previously of record at the time of the May 2007 decision. Thus, while new, the evidence is essentially cumulative or redundant of the evidence of record at the time of the May 2007 decision. Consequently, it does not constitute new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, the claim for rheumatoid arthritis is not reopened. Service Connection Chronic Joint Pain Generally, to establish service connection, the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (also called a nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War, provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4 , not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A chronic qualifying disability means a chronic disability resulting from (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section, the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology 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. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(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. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). VA must give due consideration to all pertinent medical and lay evidence in a case. 38 U.S.C. § 1154(a). VA must also determine the competency and credibility of the evidence of record, and determine the weight or probative value of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that she has joint pain in her hands, knees, and feet as a result of her exposure to environmental hazards while serving in the Southwest Theatre of Operations as the cause of her claimed undiagnosed illnesses. The record reflects that the Veteran had service in Southwest Asia during the Persian Gulf War, and, therefore, such laws and regulations are applicable to his claims. Post-service private treatment records include diagnoses of degenerative joint disease, rheumatoid arthritis, and osteoarthrosis. In a December 2013 private treatment note, the Veteran reported a history of multiple medical problems include seropositive erosive rheumatoid arthritis. She also complained of pain in her lower back and right knee. She stated she gets stiffness in her hands. The assessment was rheumatoid arthritis and degenerative joint disease. In a July 2015 private note, the examiner noted an impression of osteoarthrosis of the knees. The examiner also reported rheumatoid arthritis affecting the hands, wrists, and ankles. Here, the Board finds it probative that private treatment records show that the Veteran’s symptoms of painful joints have been attributed to known clinical diagnoses: specifically, rheumatoid arthritis and osteoarthrosis. The VA and private treatment records do not support an undiagnosed illness or medically unexplained chronic multi-system illness with regard to the Veteran’s symptoms. Accordingly, the Board finds the provisions of 38 C.F.R. § 3.317 are not applicable. In order to address all theories of entitlement, however, the Board has considered whether entitlement to service connection for the diagnosed clinical disorders described above is warranted on a direct basis. However, as the Board has denied reopening the claim for rheumatoid arthritis, and a December 2015 Board denied a claim service connection for degenerative disc disease of the spine which has not been reopened, these disabilities cannot be considered at this time. As described above, the record demonstrates clinical diagnoses for the Veteran’s knee symptoms during the pendency of the appeal, and as such, the Board finds the evidence establishes a current disability for service connection purposes. However, the Veteran’s service treatment records do not reflect complaints of, treatment for, or a diagnosis of a knee disorder. The first evidence of a knee disorder was in December 2013. Under 38 C.F.R. § 3.307 and § 3.309, arthritis must manifest to a compensable degree within one year of separation from service or show a continuity of symptomatology from service. This is not the case here. There is no evidence of an onset of disease or injury in service. The degenerative joint disease of the right knee was not revealed until 20 years after the Veteran left service which is well outside the period for presumptive service connection. 38 C.F.R. § 3.309. Pain involving other joints (apart from the spine, which was discussed above), such as in the wrists, elbows, and ankles, has been attributed to rheumatoid arthritis (the claim for which is not reopened and thus cannot be considered on the merits at this time) or other diagnoses such as epicondylitis of the elbow due to overuse, which is also not shown to be related to service, for the reasons discussed above with respect to the knee. The Board has carefully considered the Veteran’s statements, in which she ascribes her symptoms to environmental hazards while serving in the Gulf War. The Board finds no indication that the Veteran’s environmental exposures may be linked to the later development of the arthritis, epicondylitis, or degenerative joint disease. Because a cause-and-effect relationship cannot be observed through the senses alone, the Veteran’s lay opinion on this issue is not competent, and thus not probative. To the extent the Veteran seeks service connection for joint pain as an undiagnosed illness or medically unexplained chronic multi-symptom illness, by regulation, undiagnosed illnesses and medically unexplained, chronic multi-symptom illnesses require consideration of a physical examination and laboratory results. See 38 C.F.R. § 3.317(a). Therefore, without the appropriate medical training and expertise, the Veteran, as a lay person in the field of medicine, is not competent to provide an opinion on a complex medical matter, such as relating symptoms to either an undiagnosed illness or a medically unexplained, chronic multi-symptom illness. Jandreau, 492 F.3d 1372, 1377. Her statements therefore are not probative on the issue. More evidentiary weight is accorded the VA and private treatment records, which show that the Veteran’s symptoms have been attributed to known diagnoses. As the preponderance of the evidence is against the Veteran’s claim, it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Chronic Fatigue The Veteran asserts service connection is warranted for chronic fatigue syndrome as due to undiagnosed illness. The Veteran has complaints multiple times of fatigue, but the etiology of the fatigue is unclear. The medical evidence in the file does not show diagnoses of chronic fatigue syndrome. Accordingly, the Board finds a VA examination is necessary to determine the nature and etiology of the Veteran’s claimed fatigue. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature of any fatigue disorder and whether it may be related to service, as specified below. The examiner is asked to assess the following: 1. Whether the Veteran’s fatigue is a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illnesses, including chronic fatigue syndrome. 2. Whether her fatigue is a manifestation of a known diagnosis (other than chronic fatigue syndrome). 3. Whether the Veteran’s fatigue disorder is at least as likely as not related to an in-service injury, event, or disease, including environmental exposures while serving in Saudi Arabia. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel