Citation Nr: 21073278 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-51 632 DATE: December 8, 2021 ORDER New and material evidence having been received, the claim for service connection for a left ankle disability is reopened and to that extent only, the appeal is granted. REMANDED The claim for service connection for a left eye disability is remanded. The claim for service connection for chronic fatigue syndrome (CFS), to include an undiagnosed illness, is remanded. The claim for service connection for fibromyalgia, to include an undiagnosed illness, is remanded. The claim for service connection for a left ankle disability is remanded. FINDING OF FACT Evidence received since the December 1991 rating decision is not cumulative of evidence previously considered and raises a reasonable possibility of substantiating the claim for service connection for a left ankle disability. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied claim for service connection for a left ankle disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1985 to August 1991, from January 2004 to February 2005, and from May 2006 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2021, the Veteran testified at a Board tele-hearing conference before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Claim to Reopen Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). When determining whether the 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). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The Board notes that in the July 2015 rating decision, the issue of entitlement to service connection for a left ankle sprain, claimed as a left foot disability, was reopened. Nevertheless, the question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Veteran's claim for service connection for a left ankle disability was initially denied in December 1991 as the RO determined that the left ankle sprain was an acute and transitory condition that cleared with treatment leaving no residual disability. This finding was based on the fact that following his physical therapy treatment, there was no further mention of any complaints pertaining to the left ankle and he was reporting no treatment for this condition since service. The Veteran did not appeal the December 1991 rating decision, nor did he submit any new and material evidence within a year of the rating decision. See 38 C.F.R. § 3.156 (b). The December 1991 rating decision thereby became final. The pertinent evidence received since the December 1991 denial includes medical treatment records noting complaints of left ankle pain. The Board notes, however, that pain alone may constitute functional impairment for which service connection may be granted, and thus, the Veteran's current complaints of pain constitute new and material evidence of a possible chronic condition. Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (indicating that the term "disability" refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Presuming the credibility of the evidence, the record now indicates that the Veteran may have a left ankle disability, that may be related to service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for a left ankle disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service connection for a left eye disability The Veteran testified at the Board hearing that he was bitten by a flying insect around his left eye while stationed in the Persian Gulf during his first period of service. He stated that this resulted in swelling, drainage, and pain. He was treated with a compress and eye drops but experienced light sensitivity and decreased vision. He further testified that he was treated at the Memphis VA medical center following his first period of service. The Board finds that these records are not within the record and therefore, an attempt should be made to obtain these records. The Veteran also stated at the hearing that he was due for another eye examination. No additional treatment records have been associated with the claim file since the April 2021 Board hearing. The most recent treatment records within the claims file are from December 2020. As such, in light of the Veteran's testimony, efforts should be made to obtain all outstanding VA, and private, treatment records. 2. Service connection for CFS to include an undiagnosed illness 3. Service connection for fibromyalgia to include an undiagnosed illness The Veteran is seeking service connection for CFS and fibromyalgia, to include an undiagnosed illness. He testified before the Board in April 2021 that he had been experiencing joint pain, neurological symptoms described as "pins and needles" on his skin and numbness, and a burning sensation affecting the upper and lower extremities. He also had muscle pains in his arms and leg which he described as cramping. The Veteran was afforded a VA examination for CFS, fibromyalgia, and a Gulf War general examination in January 2015 where the VA examiner determined the Veteran's symptomatology did not relate to fibromyalgia or CFS. However, since the VA examinations, the Veteran testified before the Board in April 2021 that he had been experiencing joint pain, neurological symptoms described as "pins and needles" on his skin and numbness, and a burning sensation affecting the upper and lower extremities. He also had muscle pains in his arms and legs which he described as cramping. The Veteran did not express these symptoms at the January 2015 VA examination. The Veteran also continued to report receiving treatment for sleep disturbance and fatigue. Given the Veteran's statements regarding his symptomatology, clarification is needed as to whether the Veteran actually has a diagnosed disease which is not a symptom-based diagnosis, or whether his symptoms are a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. Thus, a new VA examination should be obtained. 4. Service connection for a left ankle disability The Veteran asserts that he experienced an injury to his left ankle during his military service. This is supported by the service treatment records which reflect that he sprained in left ankle in March 1991. He stated he had pain in his left ankle and foot since. A VA examination was provided which found limitation of motion in the ankle, but stated that there was no functional limitation or disability present. Given the Veteran's testimony, another examination is needed. As stated above, the United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, in light of Saunders, a remand is necessary to obtain clarification whether the Veteran had functional impairment due to pain in his left ankle. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported pain results in any functional impairment. See Saunders, 886 F.3d at 1362. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. Specifically, seek to locate records from August 1991 to January 2004 at the Memphis VA medical center and VA treatment records from December 2020 to the present. 2. Once all outstanding records, if any, have been obtained and associated with the claims file, schedule the Veteran for a VA examination of his joint and muscle symptoms. The examiner should provide the following opinions: a. Can the Veteran's joint pain, muscle pain, numbness and burning sensation in his upper and lower extremities, as well as sleep disturbances and fatigue be attributed to a known clinical diagnosis? Why or why not? If so, is it at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed disability began in or was otherwise due to her active service. Why or why not? b. Does the Veteran meet the criteria for a diagnosis of fibromyalgia? Why or why not? In so doing, please address the July 2015 VA examination which asserts that the criteria for fibromyalgia were not met, and the Veteran's lay statements of his current symptomatology which includes joint pain, muscle pain, numbness and burning sensation in his upper and lower extremities as well as sleep disturbances and fatigue. c. Does the Veteran meet the criteria for a diagnosis of CFS? Why or why not? In so doing, please address the July 2015 VA examination which asserts that the criteria for CFS were not met, and the Veteran's lay statements of his current symptomatology which includes joint pain, muscle pain, numbness and burning sensation in his upper and lower extremities as well as sleep disturbances and fatigue. d. If the Veteran's symptoms are not attributable to a known clinical diagnosis, should the Veteran's joint pain, muscle pain, numbness and burning sensation in his upper and lower extremities as well as sleep disturbances and fatigue be considered manifestations of either an undiagnosed illness or a medically unexplained chronic multi symptom illness? Why or why not? 3. Schedule the Veteran for a VA examination to clarify whether he has a current left ankle disability. If so, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that a current left ankle disability either began during or was otherwise caused by the Veteran's military service, to include as a result of the ankle injury that led to a medivac out a forward operating area. Why or why not? In so doing, the examiner should identify any functional limitation the Veteran currently experiences as a result of his left ankle. The Board notes that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.