Citation Nr: 18159287 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-19 393 DATE: December 19, 2018 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss), and to that extent only, the claim is granted. REMANDED Entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss) is remanded. FINDINGS OF FACT 1. A June 2011 rating decision denied service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss). 2. Within the one year appeal period following the issuance of that decision, the Veteran submitted evidence which relates to unestablished facts necessary to substantiate his claim for entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss). CONCLUSION OF LAW New and material evidence has been received to reopen the claim for entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss). 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 from December 1974 to November 1978, January 1991 to July 1991, and from October 2004 to December 2005. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss). Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The issue of entitlement to service connection for encephalitis was denied on the merits in a June 2011 unappealed rating decision. The relevant evidence of record at the time of that decision included the Veteran’s application for compensation, service treatment records, statement from a fellow servicemember, and VA treatment records. The claim was denied because the evidence failed to show a nexus between the Veteran’s claimed disability and his active duty service. Evidence added to the record subsequent to the June 2011 rating decision consists of, in pertinent part, lay statements from people who served with the Veteran during his active duty service, which were received by the Agency of Original Jurisdiction (AOJ) in December 2011. The Board finds this evidence raises a reasonable possibility of substantiating the Veteran’s claim because these statements discuss the onset of symptoms, which supports a nexus, and which is the element of service connection which was missing at the time of the June 2011 denial. Accordingly, reopening of the claim is in order. 38 C.F.R. § 3.156(b). REASONS FOR REMAND Entitlement to service connection for encephalitis (claimed as a neurological condition of the brain with chronic fatigue and unexplained weight loss) is remanded. The Veteran had several periods of overseas active duty service, to include service in Iraq, Kuwait, and Qatar. Therefore, he is considered a Persian Gulf War Veteran. He claims that during his overseas duty he was exposed to smoke from burning trash or feces and sand/dust. The Board finds this is consistent with the places, types, and circumstances of the Veteran’s service, and acknowledges this claimed exposure. 38 U.S.C. § 1154(a) (2012). For veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may be established for qualifying chronic disability that cannot be attributed to a known clinical diagnosis or for a medically unexplained chronic multisymptom illness. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). Specifically, under VA regulation, a qualifying chronic disability is defined as either: (1) an undiagnosed illness or (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. Id. An undiagnosed illness is defined as that which by history, physical examination, and laboratory tests cannot be attributed to a “known clinical diagnosis.” 38 C.F.R. § 3.317(a)(1)(ii); Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (holding that “[t]he very essence of an undiagnosed illness is that there is no diagnosis.”); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. A “medically unexplained chronic multisymptom illness” (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). MUCMIs of partially understood etiology and pathophysiology will not be considered “medically unexplained.” Id. When presumptive service connection is inapplicable, veterans may still establish service connection with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran was afforded an August 2010 VA examination and the examiner determined that the Veteran’s disability pattern was a disease with a clear and specific etiology and diagnosis of encephalitis. However, the examiner failed to provide an opinion regarding whether the Veteran’s encephalitis began during or is etiologically related to his active duty service, to include as to do exposure to environmental toxins in the Southwest Asia Theater of Operations, and also failed to discuss whether the Veteran’s claimed symptoms were due to a MUCMI. Accordingly, a new examination and opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Combee, 34 F.3d at 1043. Moreover, the Veteran informed the August 2010 VA examiner that he was medically retired from the U.S. Postal Service in 2008 due to his brain inflammation. Accordingly, the AOJ should make all efforts to obtain these Federal disability retirement records on remand in accordance with VA regulation. The matter is REMANDED for the following action: 1. Attempt to obtain the Veteran’s retirement disability records from the U.S. Postal Service. If an authorization from the Veteran is required, the AOJ must inform the Veteran of such and request that he assist in attempting to obtain these records. The Veteran is informed that his cooperation is essential in order to obtain these records which may assist in substantiating his claim. All efforts to obtain these records must be made until either they are received, it is determined they do not exist, or it is determined further attempts to obtain them would be futile. If the records are unable to be obtained for any reason or it is determined that further efforts to obtain them would be futile, a negative response from the records repository must be documented in writing and associated with the evidence of record. Additionally, a Memorandum of a Formal Finding of Unavailability must be prepared, documenting all efforts to obtain these records, and must be associated with the evidence of record. The Veteran must also be informed of the unavailability of these records in accordance with VA regulation. 2. Following completion of step 1, afford the Veteran the appropriate VA examination to determine the etiology of his claimed disability. All appropriate testing must be accomplished. A full history from the Veteran must be obtained regarding all pertinent symptomatology and must be recorded in the examination report. Following a complete review of the medical and lay evidence of record, the examiner is requested to provide the following opinions: (a) Determine whether the Veteran’s subjective complaints of fatigue, unexplained weight loss, and neurological symptoms are due to an identifiable diagnosis/diagnoses and list each diagnosis with onset date (and date resolved, if applicable). (b) With respect to EACH diagnosis listed in (a), determine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disease or disability is considered a medically unexplained chronic multisymptom illness (MUCMI). The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered “medically unexplained.” See 38 C.F.R. § 3.317 (2017). (c) With respect to EACH diagnosis in (a), IF the diagnosis is NOT considered a MUCMI, determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or is etiologically related to the Veteran’s active duty service, to include as due to exposure to environmental toxins in the Southwest Asia Theater of Operations. (d) With respect to the Veteran’s diagnosed encephalitis, if not already addressed above, determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or is etiologically related to the Veteran’s active duty service, to include as due to exposure to environmental toxins in the Southwest Asia Theater of Operations. (e) If the answer to (a) is that there is NO diagnosed disability to explain the Veteran’s complaints of fatigue, unexplained weight loss, and neurological impairment during any point during the appeal period, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s symptoms are due to an undiagnosed illness. The examiner must consider that the Veteran is presumed to have been exposed to environmental toxins in the Southwest Asia Theater of Operations. The examiner must also consider and discuss the Veteran’s lay statements regarding the onset and continuity of symptoms. A complete rationale for these opinions must be provided. Citation to accepted medical literature and principles would be of great assistance to the Board. If the examiner is unable to provide any these opinions without resorting to speculation, he or she must explain why this is so. 3. The AOJ must review the examination report and opinions to ensure they are adequate and comply with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. 4. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. (Continued on the next page)   5. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel