Citation Nr: 18133134 Decision Date: 09/11/18 Archive Date: 09/07/18 DOCKET NO. 15-45 434 DATE: September 11, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness is reopened. New and material evidence having been received; the claim of entitlement to service connection for diarrhea, to include as due to an undiagnosed illness is reopened. Entitlement to service connection for chronic fatigue syndrome is granted. Entitlement to service connection for colitis (claimed as diarrhea), is granted. FINDINGS OF FACT 1. In a December 2008 rating decision, the RO denied the Veteran’s claims for service connection for Gulf War Syndrome (claimed as chronic fatigue) and for diarrhea, to include as due to an undiagnosed illness. 2. Evidence received since the December 2008 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for chronic fatigue syndrome, and raises a reasonable possibility of substantiating the claim. 3. Evidence received since the December 2008 rating decision is new, relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for diarrhea, and raises a reasonable possibility of substantiating the claim. 4. It is at least as likely as not that the Veteran has chronic fatigue syndrome that is secondary to his service-connected PTSD. 5. It is at least as likely as not that the Veteran has colitis that had its onset during military service. CONCLUSIONS OF LAW 1. The December 2008 rating decision denying service connection for Gulf War Syndrome (claimed as fatigue) and for diarrhea, to include as due to an undiagnosed illness is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the final December 2008 rating decision is new and material; therefore, the claim of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 3. Evidence received since the final December 2008 rating decision is new and material; therefore, the claim of entitlement to service connection for diarrhea, to include as due to an undiagnosed illness, is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 4. The criteria for entitlement to service connection for chronic fatigue syndrome have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. 5. The criteria for entitlement to service connection for colitis have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1989 to February 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision. In his December 2015 substantive appeal (VA Form 9), the Veteran requested a videoconference hearing at the RO. However, he subsequently cancelled that hearing request in a June 2017 statement. In November 2016 and August 2017, the Veteran submitted additional evidence along with a waiver of initial RO consideration of the evidence New and Material Evidence Claims1. Whether new and material evidence has been received to reopen claims of entitlement to service connection for chronic fatigue syndrome and for diarrhea, to include as due to an undiagnosed illness Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted or received. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court 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. In other words, the evidence proffered only needs to be new and material, not new, material, and raise a reasonable possibility of substantiating the claim. That is to say, there are just two, not three, requirements for successfully reopening a claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s initial claims seeking service connection for Gulf War Syndrome (claimed as chronic fatigue) and for diarrhea were denied in a December 2008 rating decision on the grounds that there was no evidence that either condition existed. It was also determined that there is no record of chronic fatigue and diarrhea due to an undiagnosed illness showing a chronic disability subject to service connection. Although the Veteran was notified of the RO decision, he did not appeal either denial. Further, new and material evidence was not received within one year of the determinations. As such, the December 2008 rating decision is final with respect to both claims. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since that denial, in a July 2014 report, a private physician opined that exposure to the agents during his service abroad could cause the Veteran’s chronic fatigue syndrome. Moreover, in a December 2015 report, a private physician stated that the Veteran had extensive workup of his chronic diarrhea and opined that the condition could be related to either his Gulf War Syndrome or his psychiatric issues. This information had not been previously considered and is sufficient to constitute new and material evidence in accordance with 38 U.S.C. § 5108; 38 C.F.R. § 3.156, and the claims are reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A “qualifying chronic disability” includes an undiagnosed illness or 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. 38 C.F.R. § 3.317 (a)(2)(i). The term “medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, 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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (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). For purposes of section 3.317, 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)(3)(4). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). Initially, the Board notes that the February 2015 rating decision denied the petitions to reopen the claims for service connection for chronic fatigue syndrome and for diarrhea and as such, did not consider either claim for service connection, on a de novo basis. However, in light of the grants of the reopened claims herein, which is favorable to the Veteran, the Veteran is not prejudiced by the Board’s consideration of the reopened claims at this time. 1. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness Following VA examination in October 2008, the Veteran was diagnosed as having chronic fatigue syndrome. The examiner opined that that the chronic fatigue syndrome is at least as likely as not related to the Veteran’s inability to sleep due to recurrent violent dreams. In a July 2014 report, a private physician reported that the Veteran suffered from chronic fatigue syndrome after extensive blood testing did not reveal a specific etiology for his symptoms. It was noted that the Veteran was exposed to agents during his service abroad that could cause a chronic fatigue syndrome. The physician stated that this condition is an unexplained multi-symptom illness that generally persists for a lifetime. Following a VA Gulf War examination in November 2014, the examiner determined that the Veteran’s symptoms of chronic fatigue syndrome are likely multifactorial and likely related to his diagnosis of schizo-affective disorder, meds and iron deficiency and less likely related to Gulf War Syndrome or his service in the Gulf War over 10 years ago. In a July 2014 report, a private physician related that the Veteran’s exposure to agents during his service abroad could cause a chronic fatigue syndrome. On VA psychiatric examination in March 2017, the Veteran was diagnosed as having post-traumatic stress disorder (PTSD) and schizo-affective disorder. The examiner related both diagnoses to the Veteran’s service in the Persian Gulf. The examiner opined that it was not possible to differentiate what symptoms are attributable to each diagnosis. The Veteran is currently service-connected for PTSD. In a July 2017 report, a private examiner noted that the Veteran had symptoms of diarrhea, fatigue, muscle and joint pain, and headaches which are compatible with Gulf War Syndrome. The physician related that the symptoms started after service in the Gulf War. The evidence in this case consists of varying opinions from private physicians and VA examiners as to the etiology of the Veteran’s chronic fatigue syndrome. The Veteran has consistently and repeatedly reported fatigue and has been diagnosed with chronic fatigue syndrome. He has reported the onset of fatigue shortly after his discharge from service. Significantly, VA examiners in October 2008 and November 2014 have related the Veteran’s chronic fatigue syndrome to recurrent violent dreams and his psychiatric disorder. The Board is cognizant that the November 2014 VA examiner specifically related the Veteran’s chronic fatigue syndrome to his schizo-affective disorder; however, the March 2017 VA examiner also related the Veteran’s schizoaffective disorder to service. In any respect, the March 2017 examiner also indicated that it is not possible to differentiate what symptoms are attributable to each diagnosis. Thus, the VA examiners findings are of at least equivocal likelihood that this Veteran’s chronic fatigue syndrome is secondary to his service-connected PTSD. Resolving reasonable doubt in the Veteran’s favor, the Board grants service connection for his chronic fatigue as secondary to his service-connected PTSD. 2. Entitlement to service connection for diarrhea, to include as due to an undiagnosed illness In a December 2007 note, a private physician reported seeing the Veteran in 1999 with a diagnosis of chronic diarrhea. On VA examination in October 2008, the Veteran reported the onset of diarrhea since Desert Storm in 1991 which has persisted ever since. The examiner provided a diagnosis of subjective diarrhea of unclear etiology without any associated underlying physical symptoms. In a May 2014 chronic fatigue syndrome disability benefits questionnaire (DBQ), completed by a private physician, it was noted that the Veteran had a history of diarrhea that started after Desert Storm. The examiner noted that a colonoscopy conducted in April 2014 revealed colonic mucosa with chronic inflammation. The Veteran was diagnosed as having colitis, nonspecific, and diarrhea. Following VA Gulf War examination in November 2014, the examiner determined that the Veteran’s colitis diagnosed by his private physician is less likely than not related to service with the diagnosis being made 14 years post service. The examiner noted that there is no evidence of a diagnosis of irritable bowel syndrome and diarrhea that is likely related to his diagnosis of colitis. The examiner stated that colitis is condition with a specific diagnosis of unclear etiology, with no evidence to support a relationship to Gulf War. In an April 2015 report, a private physician stated that the Veteran had symptoms of diarrhea, fatigue and back pain which are compatible with Gulf War Syndrome. The physician stated that the Veteran’s symptoms started after service in the Gulf War. In a December 2015 report, a private physician reported that the Veteran underwent chronic workup of his chronic diarrhea. The physician noted that as the Veteran was exposed to chemicals during his service in the Gulf War, Gulf War syndrome was suspected. Also, given his psychiatric issues, irritable bowel syndrome was a possible diagnosis. The physician felt that chronic diarrhea may be caused by either illness. In a July 2017 report, a private examiner noted that the Veteran had symptoms of diarrhea, fatigue, muscle and joint pain, and headaches which are compatible with Gulf War Syndrome. The physician related that the symptoms started after service in the Gulf War. In this case, the competent medical evidence of record indicates that the Veteran’s reports of chronic diarrhea have been attributed to colitis, a diagnosed disability. Thus, his complaints of diarrhea cannot be service-connected as being due to an undiagnosed illness. 38 C.F.R. § 3.317. However, the Veteran has consistently reported the onset of diarrhea during his period of active duty which has continued since service discharge and he was ultimately diagnosed as having colitis. Although there is evidence against the claim, the Board places great probative value on the Veteran’s statements regarding the onset and continuity of symptomatology as the Veteran is competent to report about what happened to him during service and his statements are found to be credible. Moreover, private physicians have related the onset of the Veteran’s diarrhea symptoms to his service in the Persian Gulf. Resolving all doubt in favor of the Veteran, based on the foregoing, the Board finds that the Veteran’s colitis began during active service. Service connection for colitis is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel