Citation Nr: 21028577 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 20-11 141 DATE: May 11, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for fibromyalgia is granted. New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for bilateral hearing loss is withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The RO previously denied the Veteran's claim of entitlement to service connection for fibromyalgia in a November 2014 rating decision. The Veteran was notified of the decision, but he did not appeal, and that claim is final. 2. Evidence obtained since the November 2014 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for fibromyalgia. 3. The RO previously denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder in a November 2014 rating decision. The Veteran was notified of the decision, but he did not appeal, and that claim is final. 4. Evidence obtained since the November 2014 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 5. Resolving all reasonable doubt in the Veteran's favor, his fibromyalgia is due to his military service. 6. On October 23, 2020, prior to the promulgation of a decision in the appeal regarding the claim for service connection for bilateral hearing loss, the Board received notification from the Veteran, through his attorney, that a withdrawal of this claim is requested. CONCLUSIONS OF LAW 1. The November 2014 rating decision which denied entitlement to service connection for fibromyalgia and an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for fibromyalgia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received in order to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to June 1991, to include service in the Southwest Asia Theater of Operations from December 1990 to May 1991. New and Material Evidence 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 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). 1. Fibromyalgia By way of background, the RO previously considered and denied the Veteran's claim for service connection for fibromyalgia in a November 2014 rating decision on the basis that the Veteran did not have a diagnosis of fibromyalgia. The Veteran did not file a notice of disagreement with this determination. As no further action was pursued, the November 2014 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a petition to reopen this claim in January 2016. Since the November 2014 denial, a November 2017 VA treatment record notes a diagnosis of fibromyalgia with chronic pain syndrome. Given that the November 2017 VA treatment record addresses an unestablished fact, the claim is reopened. Reopening of the claim for service connection for fibromyalgia is accordingly warranted. The merits of the claim are addressed below. 2. Acquired psychiatric disorder By way of background, the RO previously considered and denied the Veteran's claim for service connection for a psychiatric disorder in a November 2014 rating decision on the basis there was not a current diagnosis of PTSD. The Veteran did not file a notice of disagreement with this determination. As no further action was pursued, the November 2014 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a petition to reopen this claim in January 2016. Since the November 2014 denial, the Veteran has provided an October 2020 Private Assessment from Dr. M.C. that includes a diagnosis of PTSD in accordance with the DSM-5. Given that October 2020 private assessment addresses an unestablished fact, the claim is reopened. To this extent only, the claim is granted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Due to the Veteran's service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2). An undiagnosed illness is a condition that, by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1). To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). A medically unexplained chronic multi-symptom illness is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A 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). Finally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the preponderance of the evidence weighs against a finding of a relationship between the Veteran's bladder dysfunction with urinary incontinence and any service-connected disability. 3. Fibromyalgia The Veteran asserts that his fibromyalgia is the result of his service, to include as due to exposure to burn pits and other environmental hazards while in the Southwest Asia Theater of Operations. The Veteran's service personnel record confirms that the Veteran had active duty service in the Southwest Asia Theatre of Operations during the Persian Gulf War. Accordingly, the Board finds that the Veteran is considered a Persian Gulf Veteran for purposes of the applicability of 38 C.F.R. § 3.317. The Veteran is currently diagnosed with fibromyalgia with chronic pain syndrome. See November 2017 VA Treatment Record. As indicated above, fibromyalgia is a "qualifying chronic disability" for purposes of 38 C.F.R. § 3.317. Fibromyalgia is specifically listed as a manifestation of a medically unexplained, chronic multi-symptom illness under 38 C.F.R. § 3.317 (a)(2). The Veteran was provided VA examinations for fibromyalgia in October 2014 and May 2016, both of which failed to provide a diagnosis of the claimed disorder. Therefore, there are no accompanying etiological opinions to consider. The only opinion of record is a private opinion from Dr. P.C., dated in October 2020. At that time, Dr. P.C. confirmed the diagnosis of fibromyalgia as noted in the Veteran's VA treatment records and opined that the current diagnosis is more likely than not due to his service in Southwest Asia. Dr. PC. also noted the continuous use of pain medication. Finally, the evidence also demonstrates that the Veteran's fibromyalgia became manifest to a degree of 10 percent or more no later than December 31, 2021. See 38 C.F.R. § 3.317 (a)(1)(i). Under the schedular rating criteria for fibromyalgia, a 10 percent rating is warranted for widespread musculoskeletal pain that required continuous medication for control. 38 C.F.R. § 4.71a, Diagnostic Code 5025. In this case, the medical evidence reflects that the Veteran has widespread musculoskeletal pain and requires continuous medication for control of his ongoing symptoms, as noted in the October 2020 private opinion from Dr. P.C. The Board therefore concludes that his fibromyalgia has become manifest to a degree of 10 percent. Based on the foregoing, the Board finds that the criteria for service connection for fibromyalgia have been met. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.317. Withdrawal 4. Bilateral hearing loss A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2020). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c) (2020). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b)(1) (2020). In Hembree v. Wilkie, the Court has held that where a written "withdrawal includes the name of the appellant and the file number and unambiguously identifies the claims to be withdrawn, then the written withdrawal will be considered valid and the Board need not look to other evidence to find it so." Hembree v. Wilkie, 33 Vet. App. 1, 7 (2020). Here, the Veteran's attorney submitted a statement on October 23, 2020 indicating that the Veteran wished to withdraw his appeal concerning entitlement to service connection for bilateral hearing loss. See October 2020 Correspondence. This correspondence was signed by the Veteran's attorney on his behalf, clearly stated the issue the Veteran wished to withdraw, and included the Veteran's claims file number. Accordingly, the issue is dismissed. REASONS FOR REMAND 5. Headaches The Veteran is seeking entitlement to service connection for a headache disorder that he believes is due to his military service, to include as due to an undiagnosed illness as a result of his service in the Southwest Asia Theater of Operations. The Veteran's service treatment records reflect a complaint of headaches in January 1988, prior to his overseas service. Since separation, a March 2016 VA treatment record noted the Veteran suffers from daily headaches. The Veteran has undergone two VA Gulf War Examinations, dated in October 2014 and May 2016. However, neither of these examinations have provided an etiological opinion regarding the claimed disorders. Therefore, a remand is required for a VA examination and opinion regarding the determinative issue of causation. 6. Acquired psychiatric disorder, to include PTSD The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, anxiety, and depression, that he believes is due to his military service. Specifically, the Veteran states that he suffered gas attacks, seeing dead bodies, and other situations that could have cost him his life. See October 2020 Private Assessment from Dr. M.C. Notably, as aforementioned, the Veteran has confirmed service in the Southwest Asia Theater of Operations, specifically Kuwait, which is deemed a place of hostile military activity. Further, he has been diagnosed with depressive disorder (see October 2014 VA Examination) and PTSD (see October 2020 Private Assessment from Dr. M.C). However, none of the Veteran's claimed in-service stressors have been verified. If a PTSD claim is based on the Veteran's fear of hostile military or terrorist activity, then the veteran's lay testimony is sufficient to corroborate the existence of the stressor if (1) a psychiatrist or psychologist "confirms that the claimed stressor is adequate to support a diagnosis of post-traumatic stress disorder and that the veteran's symptoms are related to the claimed stressor;" (2) the psychiatrist or psychologist's findings are not contradicted by "clear and convincing evidence;" and (3) "the claimed stressor is consistent with the places, types, and circumstances of the veteran's service." 38 C.F.R. § 3.304 (f)(3). The Veteran's October 2014 VA examination of record failed to find a diagnosis of PTSD. As for the diagnosed depressive disorder, the examiner did not address whether the Veteran's psychiatric symptoms are related to hostile military activity with respect to his verified service in Southwest Asia. Further, in the October 2020 private assessment, Dr. M.C. links the Veteran's PTSD to his service but, because the examiner was not a VA psychiatrist or VA psychologist or contracted by the VA, the criteria under 38 C.F.R. § 3.304 (f)(3) as to the requirement of fear of hostile military activity cannot be satisfied. Thus, the Board requests a new VA examination that addresses the requirements of 38 C.F.R. § 3.304 (f)(3), fear of hostile military activity as it pertains to the Veteran's claimed stressor. With respect to the Veteran' other mental health diagnosis of depressive disorder, the Board notes an adequate VA examination has not be afforded to determine whether that disorder is related to the Veteran's military service. Based on the foregoing, the Board finds a remand is warranted to obtain a VA examination with respect to the Veteran's acquired psychiatric disability, to include PTSD and depression. 7. Sleep apnea The Veteran is seeking entitlement to service connection for sleep apnea, that he believes is due to his military service. Alternatively, the record reflects that the Veteran's diagnosed sleep apnea is due to or aggravated by the claimed psychiatric disorder. See October 2020 Private Assessment from Dr. M.C. The Board acknowledges that the Veteran has submitted a non-VA medical opinion that opine that the Veteran's sleep apnea is secondary to this mental health condition. However, the Veteran is not service-connected for an acquired psychiatric disorder and, based on this remand, the Veteran's claim for an acquired psychiatric disorder is undergoing additional development. Thus, to decide the Veteran's claim of entitlement to service connection for sleep apnea, prior to the development of the Veteran's claim for an acquired psychiatric disorder, to include PTSD and depression, would be premature at this juncture as the disposition of this claim is inextricably intertwined with the outcome of the pending development of his acquired psychiatric disorder claim. Harris v. Derwinski, 1 Vet. App. 180 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) Given such, adjudication of this claim is deferred until the development directed on the other claim has been completed. The matters are REMANDED for the following action: 1. Obtain outstanding, relevant VA and non-VA medical records related to the Veteran's claims on appeal. 2. After the development above has been accomplished to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed headaches disorder. The claims file, to include this Remand and the claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. 3. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the currently diagnosed headaches disorder is incurred in or due to the Veteran's military service. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of chronic headaches. The examiner should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. After the development above has been accomplished to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his acquired psychiatric disorders, to include PTSD and depression. The claims file, to include this Remand and the claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the record, the examiner should: (a.) Delineate all psychiatric disorders currently exhibited by the Veteran, if any, under the DSM-5. If any previously diagnosed disorder, including PTSD and depression, are not found upon examination, an explanation must be provided. (b.) For each disability, the examiner should address the following whether the Veteran's acquired psychiatric disorder, to include PTSD and depression, is at least as likely as not related to his claimed in-service stressors. 1. Specifically, with respect to the Veteran's PTSD, the examiner is asked to discuss whether the Veteran's claimed in-service stressor relates to fear of hostile military activity while stationed in Southwest Asia. 2. If the VA examiner finds that the Veteran DOES NOT currently have an acquired psychiatric disorder, the VA examiner is asked to provide a retrospective opinion as to whether the Veteran's previously diagnosed acquired psychiatric disorders, to include PTSD and depression, were at least as likely as not related to his claimed in-service stressors. In addressing the above, the examiner must comment on the findings in the October 2020 private assessment. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of mental illness. The examiner should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.