Citation Nr: 18133167 Decision Date: 09/10/18 Archive Date: 09/07/18 DOCKET NO. 15-30 589 DATE: September 10, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome is denied. The application to reopen the claim for service connection for a sleep impairment, claimed as insomnia and disturbed sleep, is denied. REMANDED Service connection for fibromyalgia is remanded. Service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran does not have chronic fatigue syndrome. 2. An October 2009 rating decision denied a claim for service connection for sleep disturbance. The evidence added to the record subsequent to the October 2009 decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018). 2. New and material evidence to reopen the claim of entitlement to service connection for sleep disturbance has not been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1990 to June 1993. The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in November 2017. A transcript is of record. Additional evidence, including additional VA treatment records, were uploaded into the electronic record after the July 2017 supplemental statement of the case without consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304. The additional evidence is not pertinent to the claims adjudicated herein (any relevant information is cumulative). Thus, there is no need to remand for consideration in the first instance. Service Connection 1. Applicability of 38 C.F.R. § 3.317 Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders ) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, including signs or symptoms involving the respiratory system. The symptoms must be manifest to a degree of 10 percent or more. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War. The Southwest Asia Theater of Operations include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the air space above these locations. 38 C.F.R. § 3.317(d)(1)(2) (2015). The Veteran has reported foreign service in Saudi Arabia, during which time she learned she was pregnant and returned home. She has submitted an October 2013 lay statement that she was stationed in Saudi Arabia in May 1992. She has reported that she was deployed to Saudi Arabia in approximately January 1992. The Veteran’s DD-214 reports that the Veteran performed no foreign service, and service personnel reveal no notations indicative of foreign service. Service medical records dated in 1992, including in January and February 1992, document that the treatment was provided in Texas, and the “Current and Previous Assignments” record reports that the Veteran served in South Carolina and Texas. However, a July 29, 1992, medical record associated with the Veteran’s pregnancy reports a station located in Saudi Arabia. The Board notes that the record is ambiguous, and that a July 17, 1992, “Pregnancy Profile” reports the unit as a medical center in Texas. The Veteran is competent to report her service history, however, and resolving all doubt in favor of the Veteran, the Board finds she is a Persian Gulf Veteran. 2. Availability of service records The Veteran has reported the belief that her complete service medical records are not of record, explaining that she performed annual Reserve training in Germany and that her records may be in Germany. In support of this contention, she reported that her medical records are absent for the period prior to the birth of her child, including treatment for strep throat during training. Review of the service medical records includes multiple treatment records dated throughout the Veteran’s service, including prior to the birth of her child in February 1993. Notably, the record includes February 1991 medical records associated with treatment for strep throat during a period identified as training by the Veteran’s personnel records. The Board finds no probative evidence to suggest that the Veteran’s record is incomplete. 3. Service connection for chronic fatigue syndrome The Board finds service connection is not warranted for fatigue, claimed as chronic fatigue syndrome. Initially the Board notes that service connection is not warranted for fatigue on a presumptive basis under 38 C.F.R. § 3.317: the record does not reflect any probative diagnosis or findings of chronic fatigue syndrome, and the record includes no objective evidence of fatigue perceptible to an examining physician or capable of independent verification. Notably, a January 2014 VA examiner determined the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. The Board acknowledges that the Veteran has reported treatment for chronic fatigue syndrome. This history is not corroborated by the record, however, and the Veteran has not reported the existence of outstanding treatment records. Thus, the Board finds the Veteran’s history is not probative evidence upon which presumptive service connection can be granted. Service connection is also not warranted on a direct basis. Although the evidence reflects the Veteran’s competent history of fatigue, direct service connection will not be granted for increased fatigue alone; there must be a diagnosed or identifiable underlying condition or associated impairment. The evidence does not establish that the Veteran has an identifiable underlying fatigue disorder or impairment. 4. Application to reopen At the November 2017 hearing, the Veteran clarified that her claim for service connection for sleep disturbance did not include sleep apnea; the claim referred to symptoms of insomnia and inability to sleep through the night. The Board has limited its consideration accordingly. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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 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). Moreover, 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.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection for sleep disturbance was denied in an October 2009 rating decision. The claim was denied because the evidence did not show a service-connected disability manifested by insomnia. The Veteran was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period. The evidence added to the record after the October 2009 rating decision includes medical records. The evidence added to the record fails to show a service-connected disability manifested by sleep disturbance, other than that already contemplated by the service-connected psychiatric disability. Notably, the rating criteria for psychiatric disability contemplates sleep disturbance and insomnia. In sum, the evidence submitted since the last unappealed denial is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and raise a possibility of substantiating the claim. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade, 24 Vet. App. at 110. Thus, reopening of the claim is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Board has determined that the record supports a finding that the Veteran is a Persian Gulf Veteran. Thus, the Board finds the record would benefit if another VA examination was conducted to determine the current degree of severity of the fibromyalgia, notably whether the criteria for a 10 percent rating have been met, to determine whether service connection is warranted on a presumptive basis. 2. Entitlement to service connection for migraine headaches is remanded. The Board finds the record would benefit if another medical examination were provided to determine whether the Veteran’s migraine headaches have been aggravated by a service-connected disability. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current degree of severity of the fibromyalgia. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. 2. Afford the Veteran an appropriate VA examination to determine the etiology of the headache disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should state an opinion as to whether there is a 50 percent or greater probability that the headache disorder was aggravated by a service connected disability. The rationale for all opinions expressed must be provided with consideration of the January 2014 VA examination record and May 2014 medical opinion and the August 2014 VA medical record reporting chronic migraine exacerbated by psychosocial stressors and chronic pain. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel