Citation Nr: 1806452 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-17 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for headaches due to an undiagnosed illness? 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for joint pain due to an undiagnosed illness? 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for chronic fatigue syndrome due to an undiagnosed illness? 4. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a sleep disorder, to include sleep apnea due to an undiagnosed illness? REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from July to November 1971 and November 1990 to May 1991. He also served in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned in April 2016. A transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In an unappealed October 2002 rating decision, entitlement to service connection for fatigue, headaches, joint pain and sleep disturbance, to include due to undiagnosed illness, was denied. 2. Evidence received since the October 2002 rating decision is cumulative, redundant, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for fatigue, headaches, joint pain and a sleep disorder, to include sleep apnea, due to an undiagnosed illness. CONCLUSION OF LAW The October 2002 rating decision is final. New and material evidence has not been submitted to reopen claims of entitlement to service connection for chronic fatigue syndrome, headaches, joint pain, and a sleep disorder, to include sleep apnea, due to an undiagnosed illness. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). New and Material Evidence The Veteran contends that fatigue, headaches, joint pain and a sleep disorder, to include sleep apnea, are due to an undiagnosed illness incurred while on active duty, and that new and material evidence has been submitted warranting a grant of service connection. In an October 2002 rating decision, entitlement to service connection for fatigue, headaches, joint pain and a sleep disturbance was denied because the evidence did not show that a chronic undiagnosed illness involving fatigue, headaches, joint pain or sleep disturbances existed. The Veteran did not perfect a timely appeal and new and material evidence was not received within one year of the October 2002 VA rating decision. Therefore, the October 2002 VA rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. The 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for claims related to service during the Persian Gulf War may if there is (1) an undiagnosed illness, and (2) evidence of a chronic disability. See Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). The chronic disability must not be attributed to any known clinical diagnosis and 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. Qualifying chronic disabilities include medically unexplained chronic multi-symptom illnesses-such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome-that are defined by a cluster of signs or symptoms. 38 U.S.C. § 1117 (a). Signs and symptoms include: (1) fatigue; (2) unexplained rashes or other dermatological signs or symptoms; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) upper or lower respiratory system signs or symptoms; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117 (g). Manifestations of undiagnosed illness may be presumptively service connected unless there is affirmative evidence that an undiagnosed illness (1) was not incurred in service or (2) was caused by a supervening condition. 38 C.F.R. § 3.317 (a)(7). The Veteran's service medical records are not available. In this regard, in March 2001, VA requested the service medical records from the National Personnel Records Center. In June 2001 VA received a negative reply. Later in June 2001 and in August 2002, VA requested the records from the claimant's unit of assignment and from Tennessee Office of the Adjutant General and received negative responses. In August 2002, the Veteran was requested to provide any service medical records he had in his possession, and he responded that no records were available. In light of the foregoing, the Board finds that all reasonable avenues for obtaining the service treatment records have been exhausted. At the time of the October 2002 VA rating decision, the evidence of record included, in part, postservice medical records which did not reveal a chronic undiagnosed illness that was attributable to the appellant's military service. This included an August 2002 VA compensation examination. At that examination the appellant reported becoming fatigued with elbow, shoulder and knee pains in about 1996. He also reported weekly headaches, and difficulty sleeping. Physical examination yielded diagnoses which included fatigue, malaise, myalgias and migratory arthralgias. The examiner noted that the appellant was tested for fibromyalgia, but he had no trigger point tenderness. The examiner also opined that the Veteran did not meet the criteria for chronic fatigue syndrome because he only had five minor complaints. The claimant's headaches were noted to not be generalized, "easily gotten rid of," and very short in duration. The additional evidence received since the October 2002 VA rating decision includes treatment records from VA Medical Center Memphis dated August 2002 which documented the Veteran's mild degenerative disc changes in the lower thoracic spine. The Veteran also submitted statements in August and October 2011 asserting that he was sick for "all of the time after he got back from the war". He did not discuss specific ailments. In September 2011, the Veteran stated that he felt as though he had the "flu all the time", and indicated that he was unable to sleep at night. During the April 2016 hearing, the Veteran stated that it was possible that he was exposed to the oil well fires that burned in Kuwait during his deployment to Saudi Arabia. He explained that he could also see Scud missile attacks from his location, and that was exposed to Scud debris. He also stated that his unit maintained burn pits where human waste was burned. The Veteran testified before the undersigned in April 2016. He denied receiving any private medical care for these disorders, and he did not identify any health care provider who linked any of the claimed disorders to service, to include his service in the Persian Gulf, and to include due to an undiagnosed illness. These submitted documents, statements and testimony contain no evidence other than that which was previously submitted. That is, they provide no competent evidence that the appellant incurred a disease or injury due to an undiagnosed illness which caused his complaints of fatigue, headaches, joint pain or sleep disorder. Further, there remains no competent evidence that fatigue, headaches, joint pain or a sleep disorder is directly due to either term of the Veteran's active duty service. 38 C.F.R. §§ 3.156 (a), 3.317. As these records do not relate to an unestablished fact, namely identifying an in-service event or injury related to fatigue, headaches, joint pain or sleep disorder, or a nexus between the Veteran's claimed fatigue, headaches, joint pain or sleep disorder and an in-service injury, the criteria for reopening the Veteran's claim has not been met. Although the evidence may be new, it is not material and the claim is not reopened. 38 U.S.C. § 5108. As new and material evidence has not been received the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The claims of entitlement to service connection fatigue, headaches, joint pain and a sleep disorder, to include sleep apnea, due to an undiagnosed illness are not reopened. The claims are denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs