Citation Nr: 21072242 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-32 856 DATE: December 2, 2021 ORDER 1. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for fibromyalgia is granted. 2. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for hepatitis C is granted. 3. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for asthma is granted. 4. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for rosacea is granted. 5. Entitlement to service connection for fibromyalgia is granted. 6. Entitlement to service connection for asthma is granted. REMANDED 1. The issue of entitlement to service connection for hepatitis C is remanded. 2. The issue of entitlement to service connection for rosacea is remanded. FINDINGS OF FACT 1. In a final decision dated in September 1998, the RO denied the Veteran's claims of entitlement to service connection for fibromyalgia, hepatitis C, asthma, and rosacea. 2. Additional evidence associated with the claims file since the September 1998 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial, and raises a reasonable possibility of substantiating the Veteran's claims. 3. The Veteran has been diagnosed with fibromyalgia and had a period of active-duty service in Southwest Asia during the Gulf War. 4. There is at least a balance of evidence on whether asthma had its onset in service. CONCLUSIONS OF LAW 1. The September 1998 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2020). 2. As evidence received since the September 1998 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for fibromyalgia are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 3. As evidence received since the September 1998 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for hepatitis C are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 4. As evidence received since the September 1998 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for asthma are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 5. As evidence received since the September 1998 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for rosacea are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 6. The criteria for service connection for fibromyalgia due to Gulf War service have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.317. 7. The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1980, as well as from February 1983 to May 1992. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. New and Material Evidence Rating actions are final, and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2020). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for fibromyalgia is granted. The Veteran's claim for service connection for fibromyalgia was denied in a September 1998 rating decision. The RO determined that the evidence of record failed to demonstrate that the Veteran had an undiagnosed illness that was related to his military service. At the time of the September 1998 rating decision, the evidence of record included service treatment records, some post-service treatment records, lay statements from the Veteran and his wife, and a November 1997 VA examination report. The Veteran was notified of the decision and his appellate rights in September 1998. Although the Veteran filed a notice of disagreement in response to the rating decision, he did not file a VA Form 9 in response to the September 1999 statement of the case (SOC) appealing this issue to the Board. In November 2015, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the September 1998 rating decision includes the July 2021 Board hearing testimony and post-service VA treatment records. As indicated above, the evidence of record in September 1998 included the Veteran's service treatment records and post-service treatment records. The VA treatment records showed a diagnosis of fibromyalgia, but that was not considered an undiagnosed illness under 38 C.F.R. § 3.317 at the time. The evidence added to the record since that decision includes the Veteran's hearing testimony. He provided testimony regarding the onset of his symptoms soon after separation from service, as well as the chronicity of his joint pain and stiffness. Specifically, he reported that his joint pain began at the end of his military service in 1992 and that it increased following separation. Given evidence that reflects a qualifying chronic disability under 38 C.F.R. § 3.317, and on-going relevant complaints, the Board finds that new and material evidence has been presented, and the claim is reopened. 2. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for hepatitis C is granted. The Veteran's claim for service connection for hepatitis C was denied in a September 1998 rating decision. The RO determined that the evidence of record failed to demonstrate that the condition was incurred in or caused by the Veteran's military service. At the time of the September 1998 rating decision, the evidence of record included service treatment records, some post-service treatment records, lay statements from the Veteran and his wife, and a November 1997 VA examination report. The Veteran was notified of the decision and his appellate rights in September 1998. Although the Veteran filed a notice of disagreement in response to the rating decision, he did not file a VA Form 9 in response to the September 1999 SOC appealing this issue to the Board. In November 2015, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the September 1998 rating decision includes the July 2021 Board hearing testimony and post-service VA treatment records. Since September 1998, the Veteran has provided testimony regarding the in-service source of his infection. Furthermore, the Veteran reported that he experiences residual symptoms of hepatitis C, to include fatigue and malaise, which were not reported at the time of the prior rating decision. This is sufficient to suggest an in-service event to which the claimed disability, and any residuals, could relate. Accordingly, the Board finds that new and material evidence has been presented, and the claim is reopened. 3. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for asthma is granted. The Veteran's claim for service connection for asthma was denied in a September 1998 rating decision. The RO determined that the evidence of record failed to demonstrate that the condition was incurred in or caused by the Veteran's military service. At the time of the September 1998 rating decision, the evidence of record included service treatment records, some post-service treatment records, lay statements from the Veteran and his wife, as well as May 1995 and November 1997 VA examination reports. The Veteran was notified of the decision and his appellate rights in September 1998. Although the Veteran filed a notice of disagreement in response to the rating decision, he did not file a VA Form 9 in response to the September 1999 SOC appealing this issue to the Board. In November 2015, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the September 1998 rating decision includes the July 2021 Board hearing testimony, post-service VA treatment records, and a February 2018 VA examination report. Since September 1998, the Veteran has provided testimony that he was prescribed an inhaler during service. The Veteran further described exposure to burn pits while stationed in Southwest Asia. This is sufficient to suggest possible in-service occurrence of the claimed asthma. Furthermore, the February 2018 VA examiner indicated a nexus between the claimed condition and service, which was not of record at the time of the prior rating decision. Accordingly, the Board finds that new and material evidence has been presented, and the claim is reopened. 4. New and material evidence has been submitted and the appeal to reopen the claim of entitlement to service connection for rosacea is granted. The Veteran's claim for service connection for rosacea was denied in a September 1998 rating decision. The RO determined that the evidence of record failed to demonstrate that the condition was incurred in or caused by the Veteran's military service. At the time of the September 1998 rating decision, the evidence of record included service treatment records, some post-service treatment records, lay statements from the Veteran and his wife, as well as May 1995 and November 1997 VA examination reports. The Veteran was notified of the decision and his appellate rights in September 1998. Although the Veteran filed a notice of disagreement in response to the rating decision, he did not file a VA Form 9 in response to the September 1999 SOC appealing this issue to the Board. In November 2015, VA received his petition to reopen. Therefore, the previous rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Evidence added to the record since the September 1998 rating decision includes the July 2021 Board hearing testimony and post-service VA treatment records Since September 1998, the Veteran has provided testimony regarding the development of a rash over his back and neck following service in the Gulf, which continued following separation. He stated that the rash spread to his face and arms and occasionally flared up. This is sufficient to suggest an in-service injury to which a current disability could relate. Furthermore, the Veteran has reported on-going relevant complaints related to the claimed condition. Accordingly, the Board finds that new and material evidence has been presented, and the claim is reopened. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for fibromyalgia is granted. Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An undiagnosed illness is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multi symptom 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 multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, 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). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, 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). Further, lay persons are competent to report objective signs of illness in such claims. Id. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by a veteran's service record, the official history of each organization in which a veteran served, a veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Veteran's DD 214 reflects that the Veteran received the Kuwait Liberation Medal, and his service records indicate service in Southwest Asia. The Board is satisfied that the Veteran qualifies as a Persian Gulf Veteran for the purposes of pertinent presumptions of service connection for fibromyalgia. The Veteran has a diagnosis of fibromyalgia. See November 1997 VA Examination Report. Accordingly, there is a presumption of a nexus between the Veteran's current fibromyalgia and his Gulf War service. Medical evidence of record does not demonstrate affirmative evidence of an alternative etiology for the disability that would rebut the presumption of service connection. See 38 C.F.R. § 3.317 (a)(7). Therefore, the Board finds that the criteria for entitlement to service connection for fibromyalgia have been met. 2. Entitlement to service connection for asthma is granted. The Veteran has been diagnosed with asthma. See January 2018 VA Examination Report. At the July 2021 Board hearing, the Veteran testified that he was prescribed an inhaler during service due to shortness of breath. He further attributed this symptomatology to exposure to burn pits while stationed in Southwest Asia. As noted above, military personnel documents confirm that the Veteran served in Southwest Asia. Service treatment records reflect complaints of a chronic cough during service. Additionally, medical documentation reflects reports of shortness of breath only a short time after his separation from active-duty service. In February 2018, a VA examiner opined that it was at least as likely as not that the Veteran's asthma was incurred during service. She noted the Veteran's reports that he routinely used an inhaler while on active duty to treat his increased shortness of breath. Based upon the evidence of record, the examiner concluded that the condition began during service and was exacerbated during the Veteran's time in Southwest Asia. She further noted that the record reflected continuous treatment and care, as evidenced by the consistent reports of shortness of breath following separation. The Board finds that the Veteran has provided credible testimony regarding the occurrence of his symptoms during service, which continued following separation. The February 2018 VA medical opinion further indicates that his asthma was incurred during military service. Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for asthma may be granted. REASONS FOR REMAND 1. The issue of entitlement to service connection for hepatitis C is remanded. The Board finds it necessary to remand the reopened claim of service connection for hepatitis C for a VA examination to address whether the Veteran has hepatitis C, or any residuals related to service. 2. The issue of entitlement to service connection for rosacea is remanded. Given the Veteran's report of long-standing issues concerning a skin condition and complaints of rashes during service, he should be afforded a new VA examination to identify any current dermatological condition, including rosacea, he may have, and whether it had its onset during service. Indeed, the Board notes that service treatment records documented rashes on the Veteran's chest and face during service. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Schedule the Veteran for an examination to determine the nature and etiology of the claimed hepatitis C/chronic liver disease and any residuals. All indicated studies should be conducted and all findings reported in detail. Following a review of the claims file, the examiner is requested to identify any relevant disabilities present, and particularly those as may be responsible for the Veteran's reports of fatigue and malaise, and provide an opinion as to whether any relevant diagnosed disability had its onset in service, to include as due to in-service inoculations. All opinions provided should be supported by a rationale. 3. Schedule the Veteran for an examination to determine the nature and etiology of the claimed rosacea. All indicated studies should be conducted and all findings reported in detail. Following a review of the claims file, the examiner is requested to (A) Identify all dermatological conditions present, to include the claimed rosacea. (B) Provide an opinion as to whether any diagnosed disability had its onset in service, to include the documented in-service skin rashes. All opinions provided should be supported by a rationale. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.