Citation Nr: 21070414 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-21 187 DATE: November 23, 2021 ORDER The petition to reopen the previously denied claim for service connection for chronic fatigue syndrome (CFS) is granted. The petition to reopen the previously denied claim for service connection for joint pain disability (previously denied as swollen joints) is granted. The petition to reopen the previously denied claim for service connection for headaches disability (previously denied as chronic headaches) is granted. The petition to reopen the previously denied claim for service connection for memory loss disability is granted. REMANDED Entitlement to service connection for CFS is remanded. Entitlement to service connection for joint pain disability is remanded. Entitlement to service connection for headaches disability is remanded. Entitlement to service connection for memory loss disability is remanded. Entitlement to service connection for sleep disorder is remanded. FINDINGS OF FACT 1. An unappealed October 2004 rating decision denied entitlement to service connection for CFS; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. An unappealed October 2004 rating decision denied entitlement to service connection for swollen joints; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 3. An unappealed October 2004 rating decision denied entitlement to service connection for chronic headaches; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 4. An unappealed October 2004 rating decision denied entitlement to service connection for memory loss; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The October 2004 rating decision denying the claim for service connection for CFS is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 2. The October 2004 rating decision denying the claim for service connection for swollen joints is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 3. The October 2004 rating decision denying the claim for service connection for chronic headaches is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 4. The October 2004 rating decision denying the claim for service connection for memory loss is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 1993. The Veteran is a Persian Gulf veteran as he has qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). This appeal comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2021, the Veteran testified before the undersigned VLJ. A hearing transcript is associated with the record. The Board notes that the Veteran's representative, at the time of the hearing, was not present; however, the Veteran affirmatively indicated on the record that he wished to proceed with the hearing without his representative. The VLJ then held the record open for 90 days for the submission of supporting evidence. Evidence was subsequently submitted by the Veteran. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for CFS. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for joint pain disability (previously denied as swollen joints). 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for headaches disability (previously denied as chronic headaches). 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for memory loss disability. Issues 1-4. The Veteran, and his representative, contends that new and material evidence has been submitted to warrant reopening of the above matters. The Board concludes that the October 2004 rating decision denying the claims for service connection for CFS, swollen joints, chronic headaches, and memory loss is final; and that new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The 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 decision makers. 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of whether the AOJ found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). An October 2004 rating decision denied service connection for CFS, swollen joints, chronic headaches, and memory loss, because the evidence of record did not show that any of the Veteran's disabilities had their onset in service or were caused by an in-service injury or disease. VA notified the Veteran of this decision a November 2004 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. In this regard, in March 2014, VA received a New York Times article discussing service in the Middle East and subsequent reported symptoms of gulf war illnesses. Specifically, the article, in discussing mysterious medical problems associated with gulf war veterans, points to a study finding "objective evidence that something is wrong in the brains of [gulf war] veterans." This evidence was not previously considered by decision-makers and tends to support the Veteran's theory that his current conditions stem from service in the Southwest Asia theater of operations. For the purposes 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). Therefore, as prior evidentiary defects have been cured, the recent evidentiary submission is considered new and material. Accordingly, the petitions to reopen the claims are granted. REASONS FOR REMAND 1. Entitlement to service connection for CFS is remanded. 2. Entitlement to service connection for joint pain disability is remanded. 3. Entitlement to service connection for headaches disability is remanded. 4. Entitlement to service connection for memory loss disability is remanded. 5. Entitlement to service connection for sleep disorder is remanded. Issues 1-5. The Veteran contends that his fatigue, joint pain, headaches, memory loss, and sleep disorder stem from his service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran additionally argues that his conditions are related to in-service experimental medications, like nerve agent and anthrax. See Hearing Transcript at 11 (July 2021). For reasons explained below, the Board finds that remand is necessary. VA medical opinion, dated in March 2017, reflects the conclusion that the Veteran's fatigue is related to his obstructive sleep apnea (OSA). VA medical opinion, dated in August 2014, reflects that the Veteran was not diagnosed with CFS. In elaborating, the opinion notes that his fatigue and sleeping problems are resultants of his OSA. VA examination report, dated in August 2014, reflects diagnoses for unspecified depressive disorder and mild neurocognitive disorder. In a corresponding medical opinion, the examiner found that the Veteran's memory problems "can be attributed to an undiagnosed illness . . . ." Gulf War VA examination report, dated in August 2014, does not show that the Veteran's memory problem was found to be a sign and/or symptom that may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness." VA medical opinion, dated in September 2012, reflects that the Veteran did "not endorse any symptoms consistent with Gulf syndrome." In elaborating, the opinion found that he did "not have any medically unexplained and undiagnosed illnesses/symptoms." VA medical opinion, dated in September 2012, reflects the conclusion that the Veteran's headaches disability was not incurred in or caused by the claimed in-service event, injury, or disease. In support of the conclusion, the opinion notes that the Veteran's headaches resolved after he was started on blood pressure medication, after service. The Board finds the medical evidence of record inadequate for the following reasons. First, although the March 2017 and August 2014 VA medical opinions reveal that the Veteran's fatigue is related to his OSA, the opinions, however, do not reveal a discussion or rationale on evidence indicating that the Veteran's chronic fatigue is of "unclear etiology." In this regard, treatment record, dated in October 2015, reveals the conclusion that the Veteran's chronic fatigue is of unclear etiology. It is noted that a medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Second, the August 2014 VA medical opinion concluding that the Veteran's memory problems "can be attributed to an undiagnosed illness" is, likewise, inadequate because it is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In this regard, VA medical opinion, dated in September 2012, found that after examination, the Veteran did not have any medically unexplained and undiagnosed illnesses/symptoms. The opinion, however, does not show consideration of this medical evidence as it is absent any rationale or discussion on this medical finding. Although the examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo v. Shinseki, 26 Vet. App. 97, 105(2012)., it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Lastly, VA medical opinion, dated in September 2012, concluding that the Veteran's headaches disability was not incurred in or caused by the claimed in-service event, injury, or disease, is inadequate because the essential rationale for the opinion is not discernable. Monzingo, 26 Vet. App. at 106. In this regard, although the opinion found that the Veteran's headaches resolved after he was started on blood pressure medication, it does not reflect any rationale in support of the conclusion. Indeed, at most, the opinion notes that the Veteran's headache disability was resolved and that its onset was after service. Given the above, the Board may not rely upon the VA medical opinions in their present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that remand is necessary for an examination and addendum VA medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from May 2021 to the Present. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any (1) chronic fatigue, to include CFS, (2) joint pain disability, (3) headaches disability, (4) memory loss disability, and (5) sleep disorder. The examiner must review the entire claims file, including a copy of this REMAND. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. A complete rationale must be provided for all opinions expressed below. For (1) chronic fatigue, to include CFS, (2) joint pain disability, (3) headaches disability, (4) memory loss disability, and (5) sleep disorder, the examiner is asked to provide responses to the following: (a) Identify the Veteran's objective indications of the disability. NOTE (1): "Objective indications" of a qualifying chronic disability include both 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). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? NOTE (2): If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? NOTE (3): The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? NOTE (4): This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, service? Consider and expressly address the Veteran's contention that his disability stems from in-service immunizations related to service in the Persian Gulf War. Explain. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.