Citation Nr: 21070244 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-53 167A DATE: November 23, 2021 ORDER The appeal to reconsider the claim of service connection for tendonitis of the right hip, ankles, right wrist, and thumbs is granted. The appeal to reconsider the claim of service connection for headaches is granted. The appeal to reconsider the claim of service connection for chest pain (claimed as chest pain and hypertension) is granted. The appeal to reconsider the claim of service connection for frequent urination (claimed as an enlarged prostate) is granted. The appeal to reconsider the claim of service connection for sleep apnea is granted. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness is denied. REMANDED Entitlement to service connection for tendonitis of the right hip, bilateral ankles, right wrist, and thumbs is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for chest pain (claimed as chest pain and hypertension) is remanded. Entitlement to service connection for frequent urination (claimed as an enlarged prostate) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Evidence received since the October 2007 rating decision includes relevant service department records which were not previously of record and relate to the Veteran's claims of service connection for tendonitis of the right hip, ankles, right wrist, thumbs, headaches, chest pain, frequent urination, and sleep apnea. 2. The competent, credible and probative evidence is that the Veteran has not had chronic fatigue syndrome at any time during the period of the appeal. CONCLUSIONS OF LAW 1. The criteria to reconsider the claims of service connection for tendonitis of the right hip, bilateral ankles, right wrist, and thumbs have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2021). 2. The criteria to reconsider the claim of service connection for headaches have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria to reconsider the claim of service connection for chest pain (claimed as chest pain and hypertension) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria to reconsider the claim of service connection for frequent urination (claimed as an enlarged prostates) have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria to reconsider the claim of service connection for sleep apnea have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 6. The criteria for entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1986 to August 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021 a video conference hearing was held before the undersigned; a transcript is in the record. The Veteran provided testimony concerning numbness to the left side of his tongue. The Board notes that service connection for such disability was granted effective in 2006, and a claim for a compensable rating was denied in a June 2016 and a March 2018 rating decision, and the matter is not currently before the Board. New Service Department Records 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. 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). Under 38 C.F.R. § 3.156 (c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. These records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156 (c)(1). This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). 1. The appeal to reconsider the claim of service connection for tendonitis of the right hip, bilateral ankles, right wrist, and thumbs. Previously unavailable STRs were received after the October 2007 rating decision. These records include STRs where the Veteran reported swollen, stiff or painful joints after deployment. As these records are relevant and material to the Veteran's claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. 2. The appeal to reconsider the claim of service connection for headaches. Previously unavailable STRs were received after the October 2007 rating decision. These records include STRs where the Veteran reported ongoing headaches. As these records are relevant and material to the Veteran's claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. 3. The appeal to reconsider the claim of service connection for chest pain (claimed as chest pain and hypertension). Previously unavailable STRs were received after the October 2007 rating decision. These records include STRs where the Veteran reported ongoing chest pain. As these records are relevant and material to the Veteran's claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. 4. The appeal to reconsider the claim of service connection for frequent urination (claimed as an enlarged prostate). Previously unavailable STRs were received after the October 2007 rating decision. These records include a January 2005 STR which notes the Veteran was seen for increased urinary frequency and the impression was a possible overactive bladder. Whether or not this treatment record indicates an early manifestation of an enlarged prostate is a medical question. As this STR may be relevant to this claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. 5. The appeal to reconsider the claim of service connection for sleep apnea. Previously unavailable STRs were received after the October 2007 rating decision. These records include STRs where the Veteran reported problems with sleeping or still feeling tired after sleeping. As these records are relevant and material to the Veteran's claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 6. Entitlement to service connection for chronic fatigue syndrome. On April 2016 chronic fatigue syndrome disability benefits questionnaire (DBQ), it was noted that the Veteran did not have a diagnosis of chronic fatigue syndrome. The Veteran reported difficulty sleeping due to PTSD and reported that he would be attending a sleep study at the end of the month. The clinician noted the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. The clinician noted the Veteran's symptom of fatigue could be related to his diagnosed anxiety and potential obstructive sleep apnea (OSA). The Veteran contends that he has chronic fatigue syndrome related to service in Southwest Asia. A diagnosis of chronic fatigue syndrome is not shown in the record. The Veteran attended a VA examination in April 2016. He reported fatigue and difficulty sleeping due to anxiety. It was also noted that the Veteran would be attending a sleep study later that month (as noted above the Veteran did attend a sleep study and sleep apnea was diagnosed). On examination in April 2016 the examiner determined that the Veteran did not meet the criteria for chronic fatigue syndrome and attributed the Veteran's feeling of fatigue to his diagnosed anxiety and suspected sleep apnea. As discussed above, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time, he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In summary, the Veteran's reported symptom of fatigue is contemplated by the assigned 30 percent rating for PTSD, and otherwise attributed to the Veteran's diagnosed sleep apnea (which is not service connected). As the competent, relevant medical evidence of record affirmatively concludes that the Veteran does not have chronic fatigue syndrome, the preponderance of the evidence is against the claim for chronic fatigue syndrome; there is no doubt to be resolved; and service connection for chronic fatigue syndrome is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for tendonitis of the right hip, bilateral ankles, right wrist, and thumbs Initially, the Board notes that the Veteran is already service connected for a left wrist strain (October 2007 rating decision). The Board finds that additional development of the record is necessary for proper adjudication of these claims. At the June 2021 video conference, the Veteran testified that he was diagnosed with arthritis of the ankles and right hip. He also testified that he was diagnosed with arthritis of the wrists and hand. Notably the Veteran's treatment records have not been updated since May 2019, and record of such arthritis conditions is not currently in the record. Accordingly, such records must be sought. Lastly, the Veteran testified to experiencing pain in the above joints. It is noted that pain which contributes to functional loss may (without evidence of a clinical diagnosis) demonstrate a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, an examination which considers the extent to which pain contributes to functional loss is necessary. 2. Entitlement to service connection for headaches The Board finds that additional development of the record is necessary for proper adjudication of this claim. At the June 2021 video conference hearing the Veteran testified that he began experiencing chronic headaches while in service. He stated that he was not certain of what triggered his headaches (and questioned whether it was the ringing in his ears that may be the cause). Notably, the Veteran is service connected for tinnitus. In April 2016, the Veteran underwent a headaches examination. The diagnosis was tension headaches. The clinician opined that the Veteran's headache disability was not related to environmental hazards in Southwest Asia but did not provide an opinion as to whether the Veteran's headache disability was otherwise directly caused by service. Accordingly, a new opinion which addresses the Veteran's claim of service connection for headaches on a direct basis, as well as secondary to the Veteran's service-connected tinnitus is necessary. 3. Entitlement to service connection for chest pain (claimed as chest pain and hypertension) The Board finds that additional development of the record is necessary for proper adjudication of this claim. The Veteran contends that he has chest pain (claimed as chest pain and hypertension) related to service. In October 2005 the Veteran was seen with complaints of episodic chest pain for more than two months. The Veteran's post-service treatment records note benign essential hypertension. Whether the Veteran has a current cardiovascular disability onset during or was caused by service (to include episodic complaints of chest pain) is a medical question. Accordingly, a medical examination is necessary. 4. Entitlement to service connection for frequent urination (claimed as an enlarged prostate) The Board finds that additional development of the record is necessary for proper adjudication of this claim. A January 2005 STR notes the Veteran was seen with increased urinary frequency. It was noted that the Veteran's prostate was normal size and shape, and the impression was a possible overactive bladder. The record then reflects that following service the Veteran was diagnosed with an enlarged prostate. Whether the complaints of increased urinary frequency in service was an early manifestation of the Veteran's enlarged prostate is a medical question, which requires a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for sleep apnea The Board finds that additional development of the record is necessary for proper adjudication of this claim. Initially, the Board notes that at the June 2021 video conference hearing, the Veteran testified that he underwent a sleep study with VA in approximately 2007. See June 2021 Video Conference Hearing pg. 13. Currently, the record contains a sleep study conducted by VA in April 2016. However, the record does not contain the sleep study referenced by the Veteran. Notably, VA treatment records are considered constructively of the record and must be sought. 38 C.F.R. § 3.159 (c)(2). Lastly, whether the Veteran's later diagnosed sleep apnea is related to his reported symptoms in service is a medical question. Notably, on June 2006 report of medical assessment the Veteran reported that he snored at night and breathed hard. The health care provider indicated possible OSA (sleep apnea). Here, the Veteran's current diagnosis of sleep apnea is established by sleep study. Accordingly, a medical opinion which addresses whether such current diagnosis is related to service is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all providers (VA and private) of evaluations and treatment he has received for his, right hip, bilateral ankles, right wrist, thumbs headaches, hypertension/chest pain, enlarged prostate, and sleep apnea, and to submit authorizations for VA to obtain complete pertinent clinical records from all private providers identified. Secure all such records from all providers identified (specifically including any VA sleep study the Veteran reported occurring in 2007, and up to date VA treatment records not already in the record). 2. Arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of the Veteran's reported (1) right hip, (2) ankles, (3) right wrist, and (4) thumb disabilities. On review of the record (to include the article submitted entitled "Foot Marching, Load Carriage, and Injury Risk"), and interview/examination of the Veteran, the clinician should respond to the following: (a.) Identify (by diagnosis) each (1) right hip, (2) ankles, (3) right wrist, and (4) thumb disabilities shown by the record or on examination. And report the degree to which pain contributes to functional loss for each. (b.) Is it at least as likely as not (a 50 percent probability or greater) that any such disability diagnosed was caused or aggravated by the Veteran's service-connected bilateral foot disability? (c.) If any disability identified is found to be unrelated to the Veteran's service (to include the Veteran's service-connected bilateral foot disabilities), please identify the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical opinion regarding the etiology of his headache disability. Upon review of the record (to specifically include the Veteran's testimony of experiencing headaches in service), the consulting provider should respond to the following: (a.) Identify the likely etiology for the Veteran's headaches. Specifically, is it at least as likely as not (a 50 percent probability or greater) that it is related to the Veteran's service? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's headache disability was caused or aggravated by his service-connected tinnitus? (c.) If the Veteran's headache disability is found to be unrelated to the Veteran's service, please identify the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Arrange for a cardiology examination of the Veteran to determine the nature and likely etiology of his cardiac/cardiovascular disability(ies). Upon review of the record, and interview and examination of the Veteran, the consulting provider should provide an opinion that responds to the following: (a.) Identify (by diagnosis) each cardiac/cardiovascular disability found (or shown by the record during the pendency of the instant claim). (b.) Identify the likely etiology for each such disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent probability or greater) that such is related to the Veteran's service? Please specifically address the Veteran's allegations of onset of symptoms in service (episodic chest pain). Would such manifestations and finding have been early manifestations of currently diagnosed cardiac/cardiovascular disabilities? (c.) If a diagnosed cardiac/cardiovascular disability is determined to not be etiologically related to the Veteran's service, please identify the etiology considered more likely (and explain why that is so). The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical opinion regarding the etiology of his enlarged prostate. Upon review of the record, the consulting provider should respond to the following: (a.) Identify the likely etiology for the Veteran's enlarged prostate. Specifically, is it at least as likely as not (a 50 percent probability or greater) that it is related to the Veteran's service? (to include noted complaints of increased urinary frequency)? (b.) If the Veteran's enlarged prostate is found to be unrelated to the Veteran's service, please identify the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical opinion regarding the etiology of his sleep apnea. Upon review of the record (to specifically include the Veteran's testimony and complaints of difficulty sleeping/heavy breathing in service, and any sleep study obtained from the above development), the consulting provider should respond to the following: (a.) Identify the likely etiology for the Veteran's sleep apnea. Specifically, is it at least as likely as not (a 50 percent probability or greater) that it is related to the Veteran's service? (b.) If the Veteran's sleep apnea is found to be unrelated to the Veteran's service, please identify the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.