Citation Nr: 22016426 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-38 189 DATE: March 22, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for chronic fatigue syndrome is reopened. New and material evidence having been received, the claim of entitlement to service connection for irritable bowel syndrome (IBS) is reopened. New and material evidence having been received, the claim of entitlement to service connection for night sweats is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right quadriceps disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for infertility is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for IBS is remanded. Entitlement to service connection for night sweats is remanded. Entitlement to service connection for a right quadriceps disability is remanded. Entitlement to service connection for a right knee disability is remanded Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed March 2012 rating decision, the Regional Office (RO) denied entitlement to service connection for chronic fatigue syndrome, IBS, and night sweats. 2. In an unappealed October 2012 rating decision, the RO denied entitlement to service connection for a right knee disability, a right quadriceps disability, and infertility. 3. Evidence associated with the claims file since the March and October 2012 rating decisions is new, relates to an unestablished fact necessary to substantiate the merits of the service connection claims for chronic fatigue syndrome, IBS, night sweats, and a right quadriceps disability, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied service connection for chronic fatigue syndrome, IBS, and night sweats is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The October 2012 rating decision that denied service connection for right knee disability, a right quadriceps disability, and infertility is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The claims of entitlement to service connection for chronic fatigue syndrome, IBS, night sweats, and disabilities affecting the right quadriceps and right knee are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to January 1990 and from January 1991 to March 1991. In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims file. Reopened Claims Generally, a claim In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that 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. 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 to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic fatigue syndrome 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for irritable bowel syndrome 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for night sweats In March 2010, the Veteran filed a claim for several disabilities which he stated were incurred as a result of his service in Southwest Asia during the Persian Gulf war. In a March 2012 rating decision, the RO denied service connection for chronic fatigue syndrome and irritable bowel syndrome on the basis that the evidence of record at that time did not show a currently diagnosed disability. The RO also denied service connection for night sweats on the basis that night sweats is not considered an actually disabling condition and that the claimed night sweats were not an undiagnosed illness or a medically unexplained chronic multi-symptoms illness of unexplained or partially explained etiology. The Veteran submitted a timely notice of disagreement (NOD) following the March 2012 rating decision, but he did not perfect an appeal by submitting a substantive appeal following the issuance of the April 2013 statement of the case (SOC). Therefore, the March 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, since the issuance of the March 2012 rating decision, a September 2019 VA treatment record was associated with the claims file which notes the Veteran's report of experiencing fatigue and includes a diagnosis of chronic fatigue syndrome. The Board finds this evidence is new, as it was not of record at the time of the last final rating decision, and is also material as it relates to whether the Veteran has a diagnosis of chronic fatigue syndrome. Since March 2012, the Veteran testified that his stomach issues and diarrhea affect him presently and makes it difficult for him to go out in public. He also testified that his night sweats impacts his life as they result in interrupted sleep due to tossing, turning, and sweating all the time. The Board finds the Veteran's testimony is new, as it was not of record at the time of the last final rating decision. The lay evidence is also material as it relates to whether the Veteran experiences a functional impairment as a result of his claimed irritable bowel syndrome and night sweats, which is sufficient to establish the presence of a disability. See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Therefore, the claims of entitlement to service connection for chronic fatigue syndrome, irritable bowel syndrome, and night sweats are reopened. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right quadriceps disability 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability is remanded. In May 2010, the Veteran submitted a written statement wherein he claimed that he had a right quadriceps and right knee disability that was incurred as a result of an ankle injury incurred during service. In an October 2012 rating decision, the RO denied service connection for a right quadriceps injury on the basis that the evidence did not establish that the disability was proximately due to or the result of the right ankle disability. The Veteran did not submit a timely notice of disagreement following the issuance of the October 2012 rating decision; nor does any other exception to finality apply. Therefore, the October 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the October 2012 rating decision, the Veteran testified that he first recalls pain and symptoms in his right leg during service and that his right leg, including the right quadriceps and knee, have been bothering him since that time. In this regard, the Veteran's representative argued that the RO did not adequately consider whether the currently claimed disabilities are due to the right quadriceps atrophy noted during service. While offering an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim without evidence to support that particular theory, in this case, the Veteran's lay statements regarding the in-service onset and continued nature of his right leg symptoms are new, as such statements were not of record at the time of the last final decision. His statements are also material, as they relate to whether the right quadriceps and right knee disabilities were incurred during active service and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (holding 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 full duty to assist). Therefore, the right quadriceps and right knee claims are reopened and, to this extent only, are granted. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for infertility is remanded. The claims file contains VA treatment records dated in May 1997, April 2001 to June 2010, and September 2019. Notably, the September 2019 treatment record reflects that the Veteran had not been seen since 2016 which indicates that there are outstanding VA treatment records which may contain information or evidence that may be sufficient to reopen the infertility claim. Therefore, the Board finds a remand is needed to obtain any outstanding VA treatment records. 2. Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran was afforded a VA examination in February 2012 during which the examiner noted that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. Instead, the examiner suggested that the Veteran's fatigue may be related to his depression based upon a psychiatry evaluation located in the claims file. Since the February 2012 examination, a diagnosis of chronic fatigue syndrome was rendered during VA outpatient treatment. Given the foregoing evidence, the Board finds a remand is needed to afford the Veteran a new examination to clarify if he has symptoms that meet the criteria of chronic fatigue syndrome or, in the alternative, that his claimed fatigue is representative of an undiagnosed illness or a medically unexplained chronic multi-symptom illness of unexplained or partially explained etiology. 3. Entitlement to service connection for IBS is remanded. Following examination in February 2012, a VA examiner stated that the Veteran did not have a diagnosis of an intestinal condition, including IBS. While the examiner noted the Veteran experienced diarrhea, the examiner also noted that the Veteran's reported history is inconsistent, as he initially reported having daily constipation but later reported having diarrhea. While the medical evidence does not contain a diagnosis of an intestinal condition, the Board notes that the outstanding VA treatment records may contain evidence relevant to this claim. The Board also notes that the February 2012 VA examiner did not address whether the Veteran's competent reports of experiencing diarrhea and constipation are representative of an undiagnosed illness or a medically unexplained chronic multi-symptom illness of unexplained or partially explained etiology. Therefore, the Board finds a remand is needed to obtain an addendum opinion that addresses the foregoing. 4. Entitlement to service connection for night sweats is remanded. During the February 2012 chronic fatigue syndrome examination, the examiner noted that the Veteran has night sweats but that there was no evaluation or complaints for this condition. The February 2012 VA examiner did not address whether the Veteran's competent reports of experiencing night sweats and the functional impairment caused thereby represent an undiagnosed illness or a medically unexplained chronic multi-symptom illness of unexplained or partially explained etiology. Therefore, the Board finds a remand is needed to obtain an addendum opinion that addresses the foregoing. 5. Entitlement to service connection for a right quadriceps disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. The Veteran was afforded a VA examination in May 2012 during which the examiner opined that the Veteran's right knee disability was not proximately due to or a result of his service-connected right ankle disability. The VA examiner did not address whether the Veteran's right knee disability was aggravated by the right ankle disability or provide any opinion regarding the right quadriceps atrophy noted during the examination. As such, the May 2012 examination is considered incomplete, thereby necessitating a remand to obtain an addendum opinion. 7. Entitlement to service connection for bilateral hearing loss is remanded. In April 2015, a VA physician opined that the Veteran's current bilateral hearing loss is less likely than not caused or aggravated by his military noise exposure. Unfortunately, the opinion is inadequate because the examiner referred to examinations conducted in December 1967, January 1968, and June 1977, although the Veteran was not on active duty in 1967, 1968 or 1977. The VA examiner also relied upon findings regarding delayed-onset hearing loss in an Institute of Medicine (IOM) report. However, the United States Court of Appeals for Veterans Claims (Court) has noted that the 2005 IOM report contains contradictory findings regarding delayed-onset hearing loss and found that any future opinion predicated on the IOM reports' findings, regarding delayed onset hearing loss, must address those inconsistencies. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Therefore, the Board finds a remand is needed to obtain an addendum opinion that addresses whether the Veteran's hearing loss is related to his military noise exposure based upon all relevant factors. The matters are REMANDED for the following action: 1. Obtain any pertinent, outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion regarding the Veteran's chronic fatigue syndrome, IBS, and night sweats. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the complete record, the examiner is asked to address the following: (a) Are there objective indications that the Veteran has a fatigue, gastrointestinal illness, and night sweats? (b) If so, is the disability pattern consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology? (c) If the Veteran's fatigue, gastrointestinal illness, or night sweats is attributable to either (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology OR (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, the examiner should state whether the disability had its onset during or is otherwise related to the Veteran's military service, to include any exposures during service in Southwest Asia. (d) If the Veteran's fatigue, gastrointestinal illness, and night sweats are not attributable to a known clinical diagnosis, the examiner should opine whether the symptoms are due to an undiagnosed illness resulting from service in Southwest Asia during the Gulf War. (e) A complete rationale must be provided for each opinion offered. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran's symptoms. 3. Request that an appropriate medical professional review the claims file and provide a medical opinion regarding the Veteran's right knee and right quadriceps disabilities. The need for an examination is left to the discretion of the examining physician. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. After reviewing the record (to include an examination of the Veteran, if deemed necessary), the examiner is asked to address the following: Was the Veteran's right knee disability (1) incurred during or as a result of service, (2) caused by the service-connected right ankle disability, or (3) aggravated by the service-connected right ankle disability? Was the Veteran's right quadriceps disability (1) incurred during or as a result of service, (2) caused by the service-connected right ankle disability, or (3) aggravated by the service-connected right ankle disability? A complete, well-reasoned rationale should be provided for each opinion offered. 4. Forward the Veteran's claims file to an appropriate clinician for an addendum opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. The claims file must be made available to, and reviewed by the examiner. Based on a review of the record, the examiner must provide an opinion as to whether the Veteran's bilateral hearing loss had its onset during the Veteran's service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must address a theory of delayed-onset hearing loss. If the clinician relies on the findings from the 2005 IOM study to support a negative opinion, the clinician must also provide a complete rationale as to why the IOM study conclusions apply to this particular Veteran, given the contradictory finding within the study noted by the Court in the McCray v. Wilkie, 31 Vet. App. 243 (2019). 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 opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. A complete and detailed rationale must be provided for all opinions expressed. Another VA audiology evaluation of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinions. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.