Citation Nr: 21026108 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-36 104 DATE: April 29, 2021 ORDER The claim for service connection for postural orthostatic tachycardia syndrome, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for headaches, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for supraventricular tachycardia, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for fatigue, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles, and wrists, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for fibromyalgia, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for orthostatic intolerance, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. The claim for service connection for chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is not reopened. REMANDED The claim for a rating in excess of 10 percent for residuals of a right shoulder injury is remanded. FINDINGS OF FACT 1. Service connection for joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles; headaches; fatigue; and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, was denied by a July 1997 rating decision; the Veteran was notified of this decision, and her appellate rights, by letter dated in August 1997; the Veteran did not perfect a timely appeal with respect to the July 1997 rating decision and no pertinent exception to finality applies. 2. A May 2009 rating decision found that new and material evidence had not been received to reopen claims for service connection for headaches, fatigue, and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, and denied claims for service connection for postural orthostatic tachycardia syndrome, supraventricular tachycardia, fibromyalgia, and orthostatic intolerance, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117; the Veteran was notified of this decision, and her appellate rights, by letter dated in May 2009; the Veteran did not perfect a timely appeal with respect to the May 2009 rating decision and no pertinent exception to finality applies. 3. Evidence received since the July 1997 and May 2009 rating decisions does not raise a reasonable possibility of substantiating the claims for service connection for postural orthostatic tachycardia syndrome, headaches, supraventricular tachycardia, fatigue, joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles, and wrists; fibromyalgia; orthostatic intolerance; or chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. CONCLUSIONS OF LAW 1. The July 1997 rating decision denying service connection for joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles; headaches; fatigue, and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). 2. The May 2009 rating decision which found that new and material evidence had not been received to reopen claims for service connection for headaches, fatigue, and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117 and denied claims for service connection for postural orthostatic tachycardia syndrome, supraventricular tachycardia, fibromyalgia, and orthostatic intolerance, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 3. New and material evidence has not been received to reopen the claims for service connection for postural orthostatic tachycardia syndrome, headaches, supraventricular tachycardia, fatigue, joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles, and wrists; fibromyalgia; orthostatic intolerance; or chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1998 to June 1992. I. Legal Criteria When there is an approximate balance in the 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection may also be granted for a disability due to a qualifying chronic disability of a Persian Gulf Veteran, provided that such disability became manifest during either active service in the Southwest Asia theater of operations or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4 not later than December 31, 2016, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.§ 1117; 38 C.F.R. § 3.317(a)(1). A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom 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 multisymptom 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 the purposes of this section the term medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). “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). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Rating actions are final and binding based on 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 C.F.R. § 3.104(a) (2020). The claimant has one year from notification of a Regional Office (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) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2020). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]we and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the determination of the Agency of Original Jurisdiction with respect to this matter, the Board must make an independent determination as to whether new and material evidence has been received to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). II. Analysis Service connection for joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles; headaches; fatigue, and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, was denied by a July 1997 rating decision. The Veteran was notified of this decision, and her appellate rights, in a letter dated in August 1997. The Veteran did not perfect a timely appeal with respect to the July 1997 rating decision and none of the pertinent exceptions to finality applies to this decision, i.e., no additional evidence was received within the one-year appeal period following the July 1997 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claims for service connection for joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles; headaches; fatigue, or chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability. Therefore, the July 1997 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). Thereafter, a May 2009 rating decision found that new and material evidence had not been received to reopen claims for service connection for headaches, fatigue, and chest pain, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, and denied claims for service connection for postural orthostatic tachycardia syndrome, supra ventricular tachycardia, fibromyalgia, and orthostatic intolerance, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. The Veteran was notified of this decision, and her appellate rights, in a letter dated in May 2009. The Veteran did not perfect a timely appeal with respect to the May 2009 rating decision and none of the pertinent exceptions to finality applies to this decision. Therefore, the May 2009 rating decision is final as to the evidence then of record, and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). There are no subsequent final rating decisions addressing the claims for service connection for the disabilities at issue on any basis. The evidence before the adjudicators at the time of the rating decisions set forth above included the service treatment reports which, aside from headaches associated with a spinal condition for which the Veteran received hospitalization in September 1989, are silent for the disabilities for which service connection is claimed. In this regard, the April 1992 separation examination and medical history collected at that time are silent for any of the disabilities at issue. Also of record at the time of each final rating decision set forth above were reports from June 1995 VA examinations which diagnosed the Veteran with arthralgia of the bilateral knees, shoulders, and wrists; tension and migraine headaches; and chronic fatigue of an indeterminate etiology. The diagnoses from these examinations also included one listed as “[f]atigue, low blood sugar.” Of import is the fact that there was no objective evidence at the time of the July 1997 or May 2009 rating decisions linking any of the disabilities at issue to service, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. In connection with the Veteran’s petition to reopen her claims for service connection for the disabilities addressed herein, the Veteran was afforded a series of VA examinations in July 2012. With respect to the heart conditions and chest pain for which service connection is claimed, the VA heart examination conducted in July 2012 resulted in the following opinions: Postural orthostatic tachycardia syndrome--Palpitations decreased after her SVT ablation for a short time, then recurred. She had daily symptoms of rapid palpitations, drop in blood pressure, lightheadedness, near syncope, but no more “adrenaline surge” sensation. She was worked up again, this time at Mayo Clinic, and was diagnosed with postural orthostatic tachycardia syndrome, and no more SVTs. Initial treatment consisted of beta blocker, Florinef, and midodrine. She did not tolerate the Florinef or midodrine and they were discontinued. She now continues the beta blocker, nadolol, and in addition, she is taking 4 liters of fluids a day, and 4 gram sodium intake a day, resulting in less frequent episodes. She still develops tachycardia, hypotension, and near syncope daily precipitated by standing, sitting for a prolonged period, and walking, which prevent her from working and carrying out many routine functional activities, such as cooking, grooming, housekeeping, [and] driving. Postural orthostatic syndrome is due to autonomic dysregulation. It is a disease with a clear and specific etiology and diagnosis, and is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Supraventricular tachycardia--This is a 42 y.o. woman who started having rapid palpitations with lightheadedness, chest pain, [and a] “feeling of adrenaline surge,” in 1993. She had [a] workup which revealed paroxysmal supraventricular tachycardia (SVT). Treatment was [with] Toprol and Valsalva maneuver, which she tolerated, and which did not help, but symptoms were not disabling. Frequency and severity of symptoms worsened in 2007 resulting in frequent near-syncope and therefore she had ablation in 2007, which resolved SVTs. Supraventricular tachycardia is a disease due to abnormal reentrant pathway in the heart. It is a disease with a clear and specific etiology and diagnosis, and is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The opinion with respect to headaches following VA examination in July 2012 was as follows: [The Veteran] has daily tension headache[s] which is a disease with a clear and specific etiology and diagnosis, which is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As for fatigue, the July 2012 VA examiner found that the Veteran did not have a diagnosis of chronic fatigue; that there was not a documented history of low grade fever; and that the Veteran did not have pharyngitis or palpable or tender lymph nodes. The examiner noted there was insufficient documentation regarding any past evaluation and diagnosis of chronic fatigue syndrome. With respect to joint pain/arthralgia, the June 2012 VA examiner concluded that it was less likely as not that such was incurred in or caused by service, finding that the “Veteran’s current findings are consistent with common age appropriate musculoskeletal pathologic conditions.” As for fibromyalgia, the June 2012 VA examiner found as follows: No diagnosis of fibromyalgia. Insufficient tender points. There is also insufficient documentation in VA records and [claims file] regarding past evaluation and diagnosis of fibromyalgia. Clearly, none of the VA examinations set forth above raise a reasonable possibility of substantiating the claims for service connection for the disabilities at issue as rather than providing clinical evidence suggesting that any of these disabilities are related to service—to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117—these examinations reach the contrary conclusion. Review of the additional evidence submitted in connection with the Veteran’s petitions to reopen her claims does not otherwise contain any findings or opinions suggesting that any of the disabilities at issue are related to service, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. Moreover, to the extent the statements of the Veteran submitted in conjunction with the petitions to reopen asserts that the disabilities at issue are related to service, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117, are not cumulative of those of record at the time of the July 1997 and May 2009 rating decisions, these assertions do not constitute material evidence. Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). Given the above and in short, the undersigned concludes that new and material evidence has not been received with respect to the claims for service connection for postural orthostatic tachycardia syndrome; headaches; supraventricular tachycardia; fatigue; joint pain/arthralgia of the left shoulder and bilateral knees, hands, bilateral, fingers, hips, ankles, and wrists; fibromyalgia; orthostatic intolerance; or chest pain, and that the criteria for reopening these claims are thus not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran has not been afforded a VA examination to assess the severity of her service-connected residuals of a right shoulder injury that contains the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Agency of Original Jurisdiction (AOJ) will be requested to afford the Veteran a VA examination addressing the claim for an increased rating for residuals of a right shoulder injury that contain the range of motion findings required by Correia. The remand of this claim will also afford the AOJ the opportunity to ensure that the current findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017) are obtained. For the reasons stated above, this case is REMANDED for the following action: 1. Update all medical records for the Veteran. The most recent VA treatment of record dates from September 2012.   2. Afford the Veteran a VA examination to determine the severity of service-connected residuals of a right shoulder injury that contains the range of motion findings required by Correia and the findings with respect to flare-ups required by Sharp. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.