Citation Nr: 18131290
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-42 672A
DATE:	August 31, 2018
ORDER
New and material evidence having been received; the claim of entitlement to service connection for symptom complex consistent with chronic fatigue syndrome (CFS), to include as due to exposure to environmental hazards of the Persian Gulf War, is reopened. 
Entitlement to service connection for symptom complex consistent with CFS, to include as due to exposure to environmental hazards of the Persian Gulf War, is granted.
Entitlement to service connection for a disability manifested by headaches, to include as due to exposure to environmental hazards of the Persian Gulf War, is granted.
REMANDED
Entitlement to service connection for a cervical spine condition is remanded.
FINDINGS OF FACT
1.   In a final decision issued on December 2009, the RO denied the Veteran’s claim of entitlement to service connection for an undiagnosed illness manifested by fatigue.
2.   Evidence added to the record since the December 2009 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for a service connection for symptom complex consistent with CFS.
3.   The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War.
4.   The Veteran has a current diagnosis of CFS that is at least as likely as not related to his active service. 
5.   The Veteran has a current diagnosis of a disability manifested by headaches that is at least as likely as not related to his active service.
CONCLUSIONS OF LAW
1.   As new and material evidence has been received since the issuance of a final December 2009 supplemental statement of the case (SSOC), the criteria for reopening the claim of entitlement to service connection for symptom complex consistent with CFS, to include as due to exposure to environmental hazards of the Persian Gulf War, have been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 
2.   The criteria for service connection for symptom complex consistent with CFS, to include as due to exposure to environmental hazards of the Persian Gulf War, have been met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, (2017).
3.   The criteria for service connection for a disability manifested by headaches, to include as due to exposure to environmental hazards of the Persian Gulf War have been met.   38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1989 to August 1989, and from August 1990 to June 1991, with service in the Southwest Asia Theater of Operations of Duty during the Persian Gulf War.
The Board notes that based on the evidence of record, the Board has re-characterized the Veteran’s claim of entitlement to service connection for muscle contraction tension headaches and right frontal hemicranial cephalgia, more broadly as a claim of entitlement to service connection for a disability manifested by headaches.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).
New and Material Evidence
Symptom Complex Consistent with CFS
In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial).
Here, in a December 2009 SSOC, the RO denied the Veteran’s claim for service connection for CFS for a lack of a current disability.  Although the Veteran initially filed a substantive appeal to this decision, in a February 2010 Statement in Support of Claim, he withdraw his appeal and thus, the December 2009 SSOC decision became final.  38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  In a November 2010 Statement in Support of the Claim, the Veteran submitted a claim to reopen his claim for CFS.
The evidence of record at the time of the final prior denial in December 2009 included, inter alia, the Veteran’s service treatment records, medical records, and prior VA examination reports.
The evidence submitted and obtained since the December 2009 prior final denial includes the Veteran’s lay statements, VA and non-VA treatment records, and a July 2012 VA examination report.
Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran’s claim.  As the evidence obtained raises a reasonable possibility of substantiating the Veteran’s claim in that the evidence establishes that the Veteran’s has CFS that is at least as likely as not related to his service.  Given such, reopening of the claim is in order.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 
Service Connection
Legal Principles and Regulations
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).
Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).
In addition, for veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.”  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)).
For Persian Gulf War veterans, service connection for chronic, undiagnosed illnesses (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Persian Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317.
Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  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).
Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317 (c).
Symptom Complex Consistent with CFS
The Veteran attributes his CFS to his service during the Persian Gulf War.  The Veteran’s military personnel records confirm that he is a Persian Gulf Veteran, having served in the Southwest Asia Theater of Operations during the Persian Gulf War. 
Although the Veteran has qualified service as a Persian Gulf Veteran, and a June 2012 VA examination report notes a diagnosis of CFS, which is on the list of medically unexplained chronic multi-symptom illnesses subject to presumptive service connection, because the evidence does not show symptoms of CFS consistent with a compensable disability rating of 10 percent, presumptive service connection is not warranted.  See 38 C.F.R. § 3.317; see also 38 C.F.R. § 4.88 (b), DC 6354 (a 10 percent, which is warranted when symptoms which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; symptoms are controlled by continuous medication).  In the VA examination report in June 2012, the VA examiner noted that the Veteran’s symptoms of feeling exhausted and tired began in 1991; however, the VA examiner does not find, nor does the evidence show that the Veteran’s CFS results in periods of incapacitation of at least one but less than two weeks total during a year, or that his symptoms are controlled by continuous medication.   
While service connection for this CFS is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation.  See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).
In a September 2011 medical report form Harborview Medical Center, Dr. W.T.E noted that during the Veteran’s service in Kuwait, he was exposed to a great deal of stress and risk, as well as toxins associated with battle.  Dr. W.T.E. noted that these certainly are the types of events and exposures which have been epidemiologically associated with the onset of CFS.  Furthermore, Dr. W.T.E. opined that the Veteran’s CFS is at least as likely as not related to his exposure and the series of events that occurred during his service. 
Additionally, in a June 2012 VA examination report, the VA examiner noted that the Veteran’s CFS has no other etiologies in the form of endocrine disease or diabetes of any chronic infectious disease.  The VA examiner thus ultimately opined that the Veteran’s CFS is possibly likely to the environmental hazards exposure of the Persian Gulf War.
Thus, the Board finds that as the Veteran has a current disability of CFS, has qualified service during the Persian Gulf War, and that the Veteran’s CFS is at least as likely as not related to his service in the Persian Gulf War, service connection for symptom complex with CFS is warranted. 
Disability Manifested by Headaches
The Veteran attributes his headaches to his service in the Persian Gulf War. 
The record reflects that the Veteran has a diagnosis of tension headaches since March 1996, a diagnosis of headaches since February 2002, a diagnosis of right frontal hemicranial cephalaria from January 2002, and a diagnosis of migraine headaches since July 2012.  
However, although the Veteran has qualified service as a Persian Gulf Veteran, because the Veteran’s disability manifested by headaches is attributed to a diagnosis, it is not considered to be an undiagnosed illness or a chronic multi-symptom illness, such as CFS, fibromyalgia, or functional gastrointestinal disorders.  As such, the Veteran does not have a qualifying chronic disability subject to presumptive service connection under 38 C.F.R. § 3.317.
Again, while service connection for a disability manifested by headaches is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation.  See Combee, 34 F.3d 1039. 
Here, the Board notes that in the June 2012 VA examination report, the VA examiner opines that the Veteran’s chronic tension headaches and migraine headaches are likely caused by the environmental hazards the Veteran was exposed to during his service in the Persian Gulf War. 
Thus, the Board finds that the Veteran has a disability manifested by headaches that is at least as likely as not related to the environmental hazards he was exposed to during his service in the Persian Gulf War, service connection for a disability manifested by headaches is warranted. 
REASONS FOR REMAND
With respect to the Veteran’s claim for service connection for a cervical spine condition, the Board finds further development is required. 
To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of his cervical spine disability.  The duty to assist is triggered when it is necessary to obtain an examination to make a decision in the case.  See 38 U.S.C. § 5103A (d) (West 2012).
Here, the record reflects that the Veteran has mild early degenerative changes of his cervical spine.  Specifically, the Veteran contends that the same injury that caused his service-connected lumbar spine disability, lumbar disc herniation with L4-L5 space narrowing, caused his current cervical spine condition, or in the alternative, the Veteran contends that his cervical spine condition is secondary to his service-connected lumbar disc herniation with L4-L5 space narrowing.  Given such, in light of the being service-connected lumbar disc herniation with L4-L5 space narrowing, in conjunction with the Veteran’s lay statements that his neck pain began at the time of the in-service injury, which reflects a possible relationship between the Veteran’s service-connected lumbar disc herniation with L4-L5 space narrowing and his cervical spine disability, the Veteran may be entitled to service connection under a theory of secondary service connection.  Consequently, VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008).
The matter is REMANDED for the following action:
1. Obtain any outstanding VA and non-VA medical records and associate with the claims file.
2. Schedule the Veteran for a VA examination to determine the onset and etiology of his cervical spine condition.  The examiner is required to review the claims file.  The examiner should provide an opinion to the following:
(a) Whether it is at least as likely as not (50 percent or greater probability) that any cervical spine condition began in active service; or is due to an injury or disease during such service.
(b) Whether it is as least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s cervical spine condition is (a) proximately caused by or (b) proximately aggravated by the Veteran’s service-connected lumbar disc herniation with L4-L5 space narrowing.
Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.
If aggravation is found, to the extent possible, the examiner should identify the clinical signs, symptoms, and manifestations of any such disorder which establish: (1) the degree of severity before the onset of aggravation of the cervical spine condition; and (2) the degree of severity at the onset of aggravation of this condition.
The examiner should discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of neck pain. S/HE 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. 
(Continued on the next page)
 
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).
 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Abdelbary, Associate Counsel 
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