Citation Nr: 21066883 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-03 498 DATE: November 2, 2021 ORDER New and material evidence to reopen claim of service connection for fibromyalgia has been presented; to this extent, the appeal is granted. Service connection for fibromyalgia is granted. FINDINGS OF FACT 1. New and material evidence was received by VA concerning the Veteran's previously denied claim of entitlement to service connection for fibromyalgia. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's fibromyalgia is related to service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for fibromyalgia, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to establish service connection for fibromyalgia have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1984 to November 1987, including service at Camp Lejeune. In June 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran previously submitted a claim of entitlement to service connection for his fibromyalgia disorder that was previously denied in an August 2013 rating decision. Since that time, in connection with his claim, the Veteran submitted VA treatment records, lay statements and sworn testimony regarding his claimed condition. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen his previously denied claim for fibromyalgia disorder. See 38 C.F.R. § 3.156. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Fibromyalgia The Veteran reports that service connection is warranted for his fibromyalgia condition because the disability started in service and has continued thereafter. In support, he reported having fibromyalgia problems since service. See BVA hearing transcript (June 2021). Indeed, his service treatment record (STR) and medical record shows that he suffered from fibromyalgia symptoms and functional impairment in service and thereafter. See STR (May 1987); see also VA medical treatment record (July 2017). The Veteran has been diagnosed as having a fibromyalgia. See VA medical treatment record (October 2012); see also VA medical examination (September 2015). Thus, the Veteran has a current condition and establishes the first element for service connection. Additionally, the Veteran's STR and medical record shows fibromyalgia problems and functional impairment with treatment in service and thereafter. Id. The Board acknowledges that the RO conceded service at Camp Lejeune but noted that this condition is not included in the list of presumptive conditions. Additionally, the RO concluded that there is no relation to the Veteran's fibromyalgia to service. As a finder of fact, the Board concludes that, consistent with the Veteran's reports, the evidence on record shows that the Veteran's fibromyalgia had its onset in service. The Board finds that the medical and lay evidence linking the Veteran's fibromyalgia disability to service is probative, competent and credible. Indeed, the Veteran's medical record shows fibromyalgia problems in service and thereafter. The evidence shows that the Veteran's fibromyalgia disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Veteran is competent to report his fibromyalgia symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Given the competent evidence linking the onset of the Veteran's fibromyalgia disability to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's fibromyalgia disability is warranted because his fibromyalgia disability had its onset during his period of military service. As such, service connection for fibromyalgia disability is warranted. See 38 C.F.R. § 3.303. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.