Citation Nr: 20002995 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-58 253 DATE: January 14, 2020 ORDER The application to reopen a previously denied claim of entitlement to service connection for low back disability is granted. The application to reopen a previously denied claim of entitlement to service connection for left knee disability is granted. The application to reopen a previously denied claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for left knee meniscal tear is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for tinea pedis is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for low back disability is remanded. FINDINGS OF FACT 1. A February 1994 rating decision denied service connection for, among other things, low back condition. The Veteran did not timely file a notice of disagreement to the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence added to the record since the February 1994 decision became final relates to an unestablished fact that is necessary to substantiate the claim of service connection for low back disability. 3. A September 2011 rating decision denied reopening a service connection claim for left knee disability and denied service connection for tinnitus. The Veteran did not timely file a notice of disagreement to the decision and new and material evidence was not received within the one-year appeal period. 4. Evidence added to the record since the September 2011 rating decision became final relates to an unestablished fact that is necessary to substantiate the claims of service connection for left knee disability and tinnitus. 5. The evidence is at least evenly balanced as to whether the Veteran’s left knee meniscal tear is related to service. 6. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus was caused by in-service noise exposure. CONCLUSIONS OF LAW 1. The February 1994 rating decision that denied the Veteran’s claim for entitlement to service connection for low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received since the February 1994 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for low back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The September 2011 rating decision that denied reopening the Veteran’s claim for entitlement to service connection for left knee disability and denied service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. As the evidence received since the September 2011 rating decision is new and material, the requirements to reopen the claims for entitlement to service connection for left knee disability and tinnitus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for left knee meniscal tear have been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to November 1993 with service in the Persian Gulf in support of Operation Desert Storm. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware which denied service connection for CFS, tine pedis, headaches, and a right knee condition, and denied reopening service connection claims for low back condition, PTSD, left knee condition, and tinnitus as the evidence submitted was not new and material. In December 2014 the Veteran filed his notice of disagreement, was issued a statement of the case in September 2016, and in November 2016 perfected his appeal to the Board. The Veteran requested a videoconference Board hearing before a Veterans Law Judge which was scheduled for August 2019. However, in July 2019, the Veteran requested that his hearing be cancelled. Therefore, the Board considers the hearing request withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). New and Material The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim of entitlement to service connection for, among other things, left knee pain and low back condition in a February 1994 rating decision, to include on the basis that the evidence of record did not show treatment for, or a diagnosis of a low back condition, and that left knee surgery was performed prior to service. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2011, the AOJ denied service connection for tinnitus finding no medical relationship that links tinnitus to his service, and denied reopening the left knee disability claim finding no new and material evidence had been submitted. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). At the time of the February 1994 rating decision, evidence relevant to the Veteran’s service connection claims for left knee pain and low back condition included service treatment records from November 1989 to November 1993, and VA examination reports from January 1994. At the time of the September 2011 rating decision, the evidence relevant to the Veteran’s service connection claims for tinnitus and left knee disability included VA treatment records from December 2010, VA examination reports from January 2011, and statements provided by the Veteran and the Veteran’s mother. Evidence received since the prior final denials includes a January 2014 statement from the Veteran describing circumstances resulting in his tinnitus and left knee disability, and VA treatment records noting treatment for and a diagnosis of arthritis in the low back, and tinnitus. This evidence was not previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for left knee disability, tinnitus, and low back disability as it provides evidence relating to possible nexus between the disabilities and service. Therefore, the evidence is new and material and the criteria for reopening the claims for service connection for left knee disability, low back disability, and tinnitus have been met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). The Veteran’s personnel records note that the Veteran had active duty service in the Persian Gulf area and was probably exposed to environmental contaminants. His DD-214 notes that his military occupational specialty was as a Cannon Fire Direction Specialist and notes receipt of the Southwest Asia Service Medal. The Veteran has established that he is a combat Veteran through his statements to be discussed further, and personnel records including his DD-214. Gaines v. West, 11 Vet. App. 353, 359 (1998) (evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence.) See also Sizemore v. Principi, 18 Vet. App. 264, 276 (2004) (Board’s determination of combat status and corroboration of stressors must be made consistent with the benefit of the doubt doctrine). 1. Left knee The Veteran contends that he aggravated his left knee injury when he twisted it jumping into foxholes on various occasions during Operation Desert Storm. He reported that VA doctors felt that his knee was functional enough as he had a certain range of motion and overlooked the aggravation. The Veteran stated that he has had continual pain, swelling, fluid and weakness in his left knee since service and has been unable to play sports. Private treatment records from January 1987 prior to service note left knee arthroscopy and repair of the radial meniscus. The Veteran’s September 1989 medical examination report upon enlistment does not note any lower extremity issues, but his medical history report upon enlistment notes a left knee diagnostic arthroscopy following a football injury when the Veteran was 15. March 1993 service treatment records note that the Veteran complained of knee pain after twisting his knee playing basketball. A January 1994 VA examination report noted that the Veteran had a history of an injured left knee but reported that the visualized bony structures and joint spaces are normal. The report noted that the Veteran injured his left knee playing basketball in 1988, twisted his knee when he fell into a foxhole and was diagnosed with a torn anterior cruciate ligament in 1991, and stated that since surgery he experiences episodes of swelling and discomfort in the knee. His range of motion was completely normal. An August 2009 private operative note indicates that the Veteran underwent a left knee arthroscopy, partial medial meniscectomy and debridement chondroplasty. The Veteran had a post-operative diagnosis of chronic bucket handle tear medial meniscus with partial tear of the ACL, chondral changes about the anterior medial aspect medial femoral condyle, about the central aspect of trochlear groove and about the posterior aspect lateral femoral condyle. A Veteran is presumed to have been sound upon entry into active duty service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran’s September 1989 medical examination report upon enlistment does not note any left knee disability. He is thus presumed to have been sounds as to his left knee when he entered service. 38 C.F.R. § 3.304(b) (the term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports”). While the Veteran’s entrance report of medical history notes a left knee diagnostic arthroscopy prior to service, there is no clear and unmistakable evidence which demonstrates that his disability was not aggravated by service. Therefore, the presumption of soundness has not been rebutted and the Veteran is presumed to have been sound upon entry into active duty service. For the following reasons, entitlement to service connection for a left knee disability is warranted. The August 2009 private operative report notes a diagnosis of meniscal tear which reflects that the Veteran has met the current disability requirement for service connection. The Veteran’s service treatment records note treatment for knee pain and the Veteran has provided competent evidence of twisting his knee during service including while falling into a foxhole and there is no indication in the evidence of record that the Veteran lacks credibility. Therefore, the Veteran has provided evidence of in-service injuries and the dispositive issue is whether there is a nexus between his current left knee meniscal tear and the in-service injury. The evidence is at least evenly balanced as to whether the Veteran’s left knee disability was caused by service. The fact that the claimed cause of the Veteran’s left knee disability, i.e., twisting his knee while falling into a foxhole during combat service, is established by his statements does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay statement indicating continuous left knee symptoms provides a sufficient basis to conclude that his left knee meniscal tear is related to his in-service knee injury. There is no negative nexus opinion of record regarding the Veteran’s left knee meniscal tear. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a left knee meniscal tear is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Tinnitus The Veteran contends that exposure to artillery rounds during service left a constant ringing in his ears. Acoustic trauma due to combat has been accepted as satisfying the in-service disease or injury element of claims for service-connected tinnitus. The Veteran reported being on standby on the Iraq border when the shooting began to signal the beginning of the War. The Veteran stated that he experienced “the biggest booming of sound that shook the whole earth like an earthquake.” He described several other instances when he was exposed to artillery fire in service during combat. There is no evidence in the record that shows the Veteran lacks credibility. Based on the Veteran’s consistent and credible statements of exposure to acoustic trauma while in service in Southwest Asia, and by applying 38 U.S.C. § 1154(b), the Board concludes that the Veteran sustained acoustic trauma during combat operations. As will be discussed further, the Veteran has indicated that he has suffered from tinnitus since 1991. The Veteran is competent to report the observable manifestations of his claimed disability and assert the occurrence of an in-service injury to include noise exposure. See Jandreau v. Nicholson, 492 F.3d at 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s competent testimony as to suffering from tinnitus demonstrates that the Veteran has a current tinnitus disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). A January 1994 VA examination report noted that that the Veteran did not report the presence of tinnitus. In a December 2010 statement, the Veteran’s mother reported that VA treatment records noted that the Veteran had ringing in his ear. A January 2011 VA examination report noted that the Veteran complained of hearing loss and tinnitus in his right ear. The Veteran reported walking by a piece of artillery which was fired without warning and noted that he was not wearing hearing protection at that time. He stated he has not been exposed to hazardous levels of noise occupationally or recreationally since service. The Veteran stated his tinnitus started in 1991 and that it is constant. The examination report noted that a tinnitus matching task revealed the Veteran’s subjective tinnitus to be in the 3.35KHz range. The examiner opined that as the 1994 VA examination report showed normal hearing bilaterally with no complaint of tinnitus, it is less likely than not that the tinnitus was caused by acoustic trauma while he served in the military. The Board notes that although the examiner also opined that the Veteran’s tinnitus was as likely as not associated with another medical condition, the Board finds that this was likely an erroneous transcription on the part of the examiner considering the examination report as a whole and in the context of the evidence of record, and that the examiner intended to conclude that the Veteran’s tinnitus was not as likely as not associated with another medical condition. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to his in-service noise exposure. While the January 1994 VA examination report noted that the Veteran did not report the presence of tinnitus, it is reasonable to conclude that the Veteran was not experiencing a ringing in his ears at the moment the examination was conducted. Additionally, while the January 2011 examiner opined that it is less likely than not that the Veteran’s tinnitus was caused by acoustic trauma in service, the examiner based his opinion on the fact that the Veteran’s examination report upon discharge was normal, which is not dispositive. 38 C.F.R. § 3.303(d) (service connection warranted for disease first diagnosed after discharge from service). Therefore, the January 2011 VA examination report is inadequate and afforded no probative value. The fact that the claimed cause of the Veteran’s tinnitus, i.e., acoustic trauma from exposure to weapons firing during combat service, is established by his statements does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay testimony indicating continuous tinnitus symptoms since service provides a sufficient basis to conclude that his tinnitus is related to the acoustic trauma he suffered in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Chronic Fatigue Syndrome The Veteran contends that he suffers from CFS as a result of exposure to contaminants during service in Southwest Asia. For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more. The term Southwest Asia theater of operations refers to 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 airspace above these locations. 38 C.F.R. § 3.317 (e)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI 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). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a 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). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau, 492 F.3d 1372, 1377 n.4. Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed condition as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. The Veteran’s service treatment records do not note treatment or complaints of CFS during service. The Veteran was afforded a Gulf War General VA examination in September 2014 which appears to contain contradictory findings. The examiner noted a diagnosis of CFS, but also opined that there were no diagnosed illnesses for which no etiology was established and indicated that the Veteran does not now have and has never been diagnosed with CFS. The examiner noted no symptoms of CFS upon examination and there were no additional signs and/or symptoms that may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multi-symptom illness”. The Board finds that a remand for a new opinion is warranted as the September 2014 examiner provided inconsistent findings in her examination report. The examiner noted a diagnosis of CFS yet indicated that the Veteran does not now have and has never been diagnosed with CFS. Therefore, the September 2014 examination report is inadequate and a remand for a new examination and opinion is necessary to determine whether the Veteran has at any time during the period on appeal suffered from CFS or fatigue due to undiagnosed illness. 2. Tinea pedis The Veteran stated that he suffers from “bad feet” from not being able to change into clean socks and uniforms in the hot desert during service. September 1992 service treatment records note that the Veteran was treated for right foot pain and that he stated that his foot hurts when he’s standing. There were no noticeable signs of fallen arches, but there was tenderness to palpation on the bottom of the foot. The Veteran’s mother reported that the Veteran suffers from foot problems which caused an odor and has not improved. A January 1994 VA examination report noted no swelling or callus formation of the Veteran’s feet and normal circulation. No acquired or congenital deformities were noted, there was no objective evidence of pain at rest or on manipulation, and the mobility of the ankles, feet and toes were normal. September 2010 VA treatment records note the Veteran reported trouble with his right foot which he indicated was sustained during active duty and has troubled him since. June 2014 VA treatment records note the Veteran was treated for dry, cracking feet which the Veteran stated began in service and have worsened over the years. The Veteran described pain in his heels which is worse in the morning or if he is “on them a lot”. The podiatrist diagnosed chronic tinea pedis bilaterally. Unfortunately, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for tinea pedis because no VA examiner has opined whether the Veteran’s disease is etiologically related to service. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § § 3.159 (c)(4)(i) (2018). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be associated with” the established event, disease or injury, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran’s June 2014 VA treatment records noted a diagnosis of bilateral tinea pedis, the Veteran reported an inability to change his footwear during combat, service treatment records noted tenderness to palpation on the bottom of his right foot, and the Veteran indicated that the current symptoms and disability may be associated with service. As the evidence is insufficient to make an informed decision on the claim, a remand for a VA examination is warranted. 3. Headaches The Veteran stated that he is unable to trust others and is anxious, thus as a result he finds life frustrating which causes headaches and panic attacks and contends that his headaches are due to service. March 1993 service treatment records note the Veteran complained of head pain 2 days after his motor vehicle accident. March 2014 VA treatment records note that the Veteran reported headaches above his brow and eyes after using the computer for a prolonged period of time. Unfortunately, the Board cannot make a fully-informed decision on the issue of service connection for headaches as no examiner has opined as to whether the Veteran’s headaches are related to his in-service head pain or otherwise due to service. Therefore, a remand is necessary for an opinion regarding the etiology of the Veteran’s current headaches. 4. Right Knee The Veteran contends that his right knee disability is due to active duty service. The Veteran’s service treatment records do not note any issues or treatment concerning his right knee. December 2014 VA treatment records note the Veteran was treated for complaints of right knee pain with no buckling, “giving way”, or falls. The records note that the right knee pain is sometimes associated with back pain and intermittent right lower extremity radiculopathy. January 2015 VA treatment records note that the Veteran has a diagnosis of arthritis in his right knee with no evidence of acute fracture or dislocation, but moderate narrowing of the medial compartment and small retropatellar osteophytes was noted. Unfortunately, the evidence of record is insufficient to adjudicate the Veteran’s claim for service connection for a right knee disability as the evidence of record reflects that the Veteran’s right knee pain may be due to his low back disability. Therefore, the Board finds that the issues are inextricably intertwined, and a VA examination is necessary to determine the etiology of the Veteran’s right knee disability to include as whether the Veteran’s low back disability caused or aggravated his right knee disability as raised by the record. 5. Low back disability The Veteran contends that he suffers from low back pain as a result of active duty service. The Veteran reported being involved in a motor vehicle accident in April 1993 which jolted his back. He stated that he now has problems with low back pain exacerbated with exertion. April 1993 service treatment records note complaints for neck and upper back pain following a motor vehicle accident. A January 1994 VA examination report noted that the height of the Veteran’s lumbar vertebral bodies and the intervertebral disc spaces of the lumbar spine are preserved, but spina bifida occulta of S1 was noted. There was no evidence of spondylosis or spondylolisthesis and the pedicles were intact. The examination report noted that the Veteran was in a motor vehicular accident in April 1993, but x-rays were negative. The Veteran reported problems with low back pain exacerbated by exertion. September 2010 VA treatment records note that the Veteran reported problems with his lower back. December 2014 VA treatment records note that the Veteran was treated for low back pain. January 2015 VA treatment records note a diagnosis of degenerative change of the lower lumbar spine. The Board finds that a remand is necessary for a VA examination to determine the etiology of the Veteran’s low back pain, including whether it is related to active duty service to include his in-service motor vehicle accident. The matters are REMANDED for the following actions: 1. Schedule a VA examination with an appropriate physician to determine whether he has CFS or fatigue that is due to undiagnosed illness. All indicated tests and studies should be performed and access to the entire claims file should be provided to the examiner for review of pertinent documents. The physician must provide an opinion as to the following: a. Does the Veteran have a current diagnosis of chronic fatigue syndrome? b. If not, do the Veteran’s symptoms, in particular fatigue, represent an objective indication of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness other than CFS? c. If the Veteran’s symptoms are attributable to a known clinical diagnosis, did such disability have its onset in service or is it otherwise related to the Veteran’s active military service? In providing the requested opinions, the physician should specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records. All findings, along with a complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of the Veteran’s tinea pedis. The physician must opine whether the Veteran’s tinea pedis is at least as likely as not (at least a 50 percent probability) related to service to include as due the Veteran’s reported inability to change his footwear during combat service in Southwest Asia. The physician is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. All findings, along with a complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of the Veteran’s headaches. The physician must opine whether the Veteran’s headaches are at least as likely as not (at least a 50 percent probability) related to service, to include as due to the motor vehicle accident which caused in-service headaches. The physician is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. All findings, along with a complete, clearly-stated rationale for the conclusions reached, must be provided. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right knee disability. The examiner must opine whether the Veteran’s right knee disability is at least as likely as not (at least a 50 percent probability) related to service, or is either (a) caused or (b) aggravated by his low back disability or any service connected disability. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. All findings, along with a complete, clearly-stated rationale for the conclusions reached, must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s low back pain. The examiner must opine whether the Veteran’s low back pain is at least as likely as not (at least a 50 percent probability) related to service to include as due to the Veteran’s reported motor vehicle accident. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. The examiner is advised that a diagnosis is not required to find disability and offer an opinion as to etiology, pain can constitute disability if it causes impairment in earning capacity. (Continued on the next page)   All finding results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.