Citation Nr: 0740946 Decision Date: 12/31/07 Archive Date: 01/03/08 DOCKET NO. 05-06 765A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for left ear hearing loss. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral knee disability. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for anxiety. 4. Entitlement to service connection for right ear hearing loss. 5. Entitlement to service connection for chronic ear infections. 6. Entitlement to service connection for chronic sinusitis. 7. Entitlement to service connection for post-traumatic stress disorder (PTSD). 8. Entitlement to service connection for joint pain, claimed as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 9. Entitlement to service connection for headaches, claimed as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Senior Counsel INTRODUCTION The veteran served on active duty from October 1983 to October 1986 and from October 1990 to September 1997, including service in Southwest Asia during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 decision of the RO which determined that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a bilateral knee disability. The veteran also perfected an appeal from a March 2004 rating action of the RO which declined to reopen a claim of service connection for bilateral hearing loss and denied claims of service connection for chronic ear infections, chronic sinusitis, joint pain and headaches. In the March 2004 decision, the RO considered the claim regarding hearing loss and referred to bilateral hearing loss. A claim of service connection for left ear hearing loss was finally denied in a July 1998 rating decision, thus a decision pertaining to that ear would address the threshold issue of new and material evidence. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A claim of service connection for right ear hearing loss has not been previously adjudicated; thus, the Board has framed that issue as noted on the title page. In a May 2007 written statement, the veteran raised claims of entitlement to service connection for a cervical spine/neck disability and for depression, as secondary to his service- connected conditions and a claim for increased rating for the service-connected status-post right little finger injury with residual flexion contracture and posttraumatic osteoarthritis. As those issues have not been adjudicated, they are referred to the RO for appropriate action. In June 2007, the veteran testified before the undersigned Veterans Law Judge at a personal hearing at the RO. A transcript of the hearing is associated with the record. The issues of service connection for a bilateral knee disability, PTSD, left ear hearing loss and chronic ear infections and the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for anxiety are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 1998 rating decision denied the veteran's claim of service connection for left ear hearing loss on the basis that there was no evidence that his pre-existing condition had been aggravated by service; the veteran did not file a timely appeal following appropriate notice, and that decision became final. 2. Evidence submitted after July 1998, concerning the veteran's left ear hearing loss, is not cumulative or redundant; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim. 3. A July 1998 rating decision denied the veteran's claim of service connection for a bilateral knee disability on the basis that there was no evidence of knee pathology during service; the veteran did not file a timely appeal following appropriate notice, and that decision became final. 4. Evidence submitted after July 1998, concerning the veteran's bilateral knee disability, is not cumulative or redundant; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim. 5. The veteran's right ear hearing loss was incurred in service. 6. There is no medical evidence showing that the veteran has an asbestos-related disease; the veteran's sinusitis is not related to service, to include exposure to CARC. 7. The veteran's complaints of joint pain have been attributed to known clinical diagnoses. Service connection is in effect for lumbar degenerative disc disease without significant radiculopathy; residuals of right ankle sprain; and status-post right little finger injury with residual flexion contracture. 8. The service medical records are negative for a chronic disability manifested by headaches; the veteran was initially seen for headaches years after discharge from service, and the evidence does not demonstrate the existence of an undiagnosed illness. CONCLUSIONS OF LAW 1. A July 1998 rating decision denying a claim of service connection for left ear hearing loss is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. New and material evidence has been received since July 1998, on the issue of service connection for left ear hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. A July 1998 rating decision denying a claim of service connection for a bilateral knee disability is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 4. New and material evidence has been received since July 1998, on the issue of service connection for a bilateral knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 5. Service connection for right ear hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2007). 6. Service connection for chronic sinusitis loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 7. Service connection for a disability manifested by joint pain, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). 8. Service connection for a disability manifested by headaches, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Rating decisions 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). The claimant has one year from notification of a 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.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, and 20.302. In a July 1998 rating decision, the RO denied the veteran's claims for service connection for a bilateral knee disability and service connection for left ear hearing loss. The veteran was notified of that decision in the same month. The veteran did not file a timely appeal and that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the July 1998 rating decision is final, the veteran's service connection claims for a bilateral knee disability and for left ear hearing loss may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156 (2006); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 he claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. New evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). New and material evidence to support both claims has been added to the record after July 1998. The July 1998 denial of service connection for left ear hearing loss was based in large part on the fact that the veteran had failed to report to a VA examination and the record did not demonstrate that his pre-existing left ear hearing loss had been aggravated by service. The report of a February 2002 VA audiological examination includes a diagnosis of moderate to moderately severe mixed hearing loss and the examiner's opinion that "it is as likely as not that a portion of this hearing loss exhibited today is associated with military noise exposure and acoustic trauma." Such evidence is new as it was not of record when the claim was initially denied in 1998. It also is material to the extent that it suggests that a portion of the veteran's current left ear hearing loss is related to service. Thus, having determined that new and material evidence has been submitted, the Board reopens the claim of service connection for left ear hearing loss. The appeal is granted only to that extent. As for the claim of service connection for a bilateral knee disability, the basis of the previous final denial in 1998 was that service medical records were negative for any pathology regarding either knee and he failed to report to a VA examination. Pertinent evidence added to the record since that time includes VA treatment records detailing knee complaints and an August 2005 statement from a VA physician. In that statement, the physician noted that he had reviewed the veteran's "military medical records and it is possible that the [veteran's] current knee pains are related [to] injuries sustained during his military service." The Board also notes that a June 1997 in-service medical assessment includes a diagnosis of bilateral right retropatellar pain syndrome. The recently submitted evidence is new as it was not of record when the claim was initially denied in 1998. It also is material to the extent that it suggests a nexus between the veteran's current knee complaints and service. Thus, having determined that new and material evidence has been submitted, the Board reopens the claim of service connection for a bilateral knee disability. The appeal is granted only to that extent. II. Service Connection Service connection may be granted if the evidence shows that a disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection means that the facts establish that a particular injury or disease resulting in a disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. Service connection may also be established by a showing of chronicity of a disorder or continuity of symptoms. Under 38 C.F.R. § 3.303(b), a veteran may utilize "the chronic disease shown as such in service" provision when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumptive period; and (2) that the veteran presently has the same condition. For the showing of chronic disease in service, there is a required 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Savage v. Gober, 10 Vet. App. 488 (1997). Additionally, service connection for certain diseases, such as organic diseases of the nervous system, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) Right ear hearing loss. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. The veteran's DD Form 214 from his last period of service shows that he worked in motor transport operations for six years, eleven months. At the June 2007 hearing before the undersigned, the veteran testified that he was exposed to constant loud noise from trucks and engines as part of his duties. The report of a June 1983 enlistment examination noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 10 The report of an August 1991 reference audiogram noted that the veteran was "routinely" exposed to hazardous noises. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 20 30 An August 1993 audiometric examination noted the veteran's history of tympanoplasty, times 2, left ear and current otorhea of 4 months duration in that same ear. Audiometric testing revealed pure tone thresholds in the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 20 30 The evaluator noted a diagnosis of mild high frequency sensorineural hearing loss in the right ear. The veteran was afforded a VA audiological evaluation in February 2002, during which the examiner reviewed the veteran's claims folder and noted his reported history of noise exposure during service. The examiner further noted that the veteran did not report any post-service recreational or occupational noise exposure. On examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 40 50 Speech audiometry revealed speech recognition ability of 88% in the right ear. The examiner diagnosed moderate high frequency sensorineural hearing loss in the right ear and commented that the results are consistent with a history of noise exposure. Service records establish that the veteran has a lengthy service record and that he was exposed to hazardous noise as part of his duties. In addition, the Board finds the veteran's testimony concerning his service noise exposure to be credible. The medical evidence establishes a current diagnosis of right ear hearing loss, which the VA examiner linked to noise exposure. There is no medical evidence to the contrary. Service connection for right ear hearing loss is warranted. Chronic sinusitis. The veteran contends that he suffers from sinusitis, which was incurred in service either directly or as a result of exposure to asbestos in brakes, chemical agent resistant coating (CARC) paint or from the dust associated with oil fires while in Southwest Asia. He testified at the June 2007 hearing about his exposure to the various hazards, including his work with truck brakes and painting equipment with CARC. As noted above, the veteran's DD Form 214 confirms he worked in motor transport operations. His personnel file shows military occupational specialties of motor transport operator, driver and heavy wheeled vehicle operator. Personnel records also show that the veteran was in Saudi Arabia for one month, from November to December 1995. The report of a June 1983 enlistment examination included a normal clinical evaluation of the sinuses. Examinations conducted in August 1986 and October 1989 included similar evaluations. In October 1992, the veteran presented with complaints of sinus congestion and was diagnosed as having sinusitis/bronchitis. At two separate May 1993 examinations, sinuses were normal and the veteran answered "no" as to having a history of sinusitis. The report of a June 1993 medical examination noted normal evaluation of the sinuses. On the Medical History portion of a June 1997 separation examination, the veteran again checked "no" as to a history of sinusitis. The medical examination of the sinuses was normal. The examiner's summary of pertinent defects and diagnoses upon did not include any reference to sinusitis. Post-service medical records include an October 2002 Persian Gulf Registry examination which include the veteran's report of daily headaches with nasal congestion and stuffiness and noted his military occupational specialty was in operations for a transportation company. Clinical evaluation of the sinuses was normal and x-ray studies revealed no radiographic evidence of sinusitis. The assessments included chronic, recurrent headaches. At a January 2003 Ear, Nose and Throat (ENT) consult, the veteran reported a history of sinusitis, with nasal drainage, more prevalent in the mornings. The impression was "[m]ore likely" chronic rhinitis with an allergic component. The report of a March 2003 allergy consult noted that a history of chronic sinusitis, but October 2002 x-rays of the sinuses showed "no sinus disease." An ENT consult later that same month noted the veteran's reported history of chronic sinusitis and ordered a CT scan. A May 2003 follow-up from the Registry examination noted the veteran's complaints of increased congestion and drainage from the nose, with sinus pressure. The examination noted actions taken on various diagnoses noted on the prior examination. There was no action reported referable to the chronic sinusitis and the assessments noted in May 2003 were the same as those noted in October 2002, without further comment. A July 2003 ENT consult noted that the veteran was seen for complaints of headaches. An April 2003 CT scan was reviewed and noted to show normal well-aerated sinuses bilaterally without signs of masses or lesions. The Board notes that the evidence includes a complaint of and treatment for sinusitis in 1992, during service; however, no subsequent treatment thereafter and a normal clinical evaluation at separation in June 1997. Thus, the condition was not chronic in service. The veteran testified that he initially filed a claim in 1998, but was homeless for a long period thereafter and could not obtain treatment. The claims folder includes a July 1998 rating decision, but the claimed sinusitis was not one of the disabilities addressed at that time. The first documented post-service complaints were noted at the October 2002 Registry examination; however, clinical examination and x-ray studies were negative. The veteran's reported history of sinusitis was noted in January 2003, but the examiner found that the veteran's complaints were more likely chronic rhinitis. The only diagnosis of chronic sinusitis was offered after the May 2003 follow-up Registry examination; however, that examiner did not offer any opinion as to the etiology of the condition and CT studies taken subsequent to the initial examination had shown normal sinuses. It appears that diagnosis is merely a recitation of the diagnoses offered at the initial examination, without further comment by the examiner. Even assuming that a current diagnosis of sinusitis is appropriate, the post-service medical record provides evidence against this claim, failing to indicate a current disorder related to service. The lapse of many years between the veteran's separation from service and the first treatment for the claimed disorder is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The veteran testified that he was homeless for a period of time and unable to obtain treatment for the claimed condition, but the Board notes that the initial claim decided in July 1998 did not include sinusitis. In addition, none of the post-service examinations offered any opinion as to the etiology of the veteran's reported sinusitis. As for the veteran's assertion that the claimed sinusitis may be related to CARC, there is no official confirmation that the veteran was exposed to CARC. He testified that he painted vehicles when he returned from Southwest Asia and that he used that type of paint. As the RO noted, the veteran was not assigned to the one organization for which exposure to CARC can be conceded, that is the 325th Maintenance Company. In addition, no physician has indicated that the claimed sinusitis may be the result of exposure to a hazardous material nor does it appear that the veteran offered any history of such exposure to the examining physicians. As to a claim based on exposure to asbestos, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. VA's Manual 21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, Topic 29. It lists some of the major occupations involving exposure to asbestos, servicing of friction products such as clutch facings and brake linings; the exposure claimed by the veteran. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, even conceding that the veteran was exposed to asbestos as part of his vehicle maintenance duties, there is no evidence that he has an asbestos-related disease and there is no competent evidence that the claimed chronic sinusitis is related to that exposure. While the veteran clearly believes his condition may be due to exposure to asbestos, the other evidence outweighs his statements. Without objective medical evidence of a disability related to exposure to asbestos, service connection for chronic sinusitis as a result of exposure to asbestos is not warranted. As the preponderance of the evidence is against the claim for service connection for chronic sinusitis, to include as due to exposure to asbestos or CARC, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Joint pain and headaches. Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service 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, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. On December 27, 2001, the President signed HR 1291, the "Veterans Education and Benefits Expansion Act of 2001" (VEBEA), Pub. Law 107-103, 115 Stat. 976 (December 27, 2001). Section 202(a) of the Act amended 38 U.S.C.A. 1117 to expand the definition of "qualifying chronic disability" (for service connection) to include not only a disability resulting from an undiagnosed illness as stated in prior law, but also any diagnosed illness that the Secretary determines in regulations warrants a presumption of service-connection under 38 U.S.C.A. 1117(d). Section 202(a) also expanded compensation availability for Persian Gulf veterans to include "medically unexplained chronic multi-symptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 was amended in 2003 to incorporate these changes, and that amendment was made retroactively effective March 1, 2002. See 68 Fed. Reg. 34539-543 (June 10, 2003). New 38 C.F.R. § 3.317(a)(2)(ii) was added defining the term "medically unexplained chronic multi-symptom illness" to mean "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." It was further stated that "Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained." As yet, VA has not identified any illness other than the three identified in section 202(a) as a "medically unexplained chronic multi- symptom illness;" therefore, new 38 C.F.R. § 3.317(a)(2)(i)(B)(1) through (3) only lists chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome as currently meeting this definition. See 68 Fed. Reg. 34539- 543 (June 10, 2003). It was provided, however, in new 38 C.F.R. § 3.317(a)(2)(i)(B)(4) that the list may be expanded in the future when the Secretary determines that other illnesses meet the criteria for a "medically unexplained chronic multi-symptom illness." A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six- 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service- connected for the purposes of all laws in the United States. See 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi- symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs and 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, or menstrual disorders. See C.F.R. § 3.317(b), as amended by 68 Fed. Reg. 34539-543 (June 10, 2003). The Secretary of Veterans Affairs, under the relevant statutory authorities, has determined that there is no basis for establishing a presumption of service connection for any illness suffered by Gulf War veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines. See 66 Fed. Reg. 35,702-10 (July 6, 2001), and 66 Fed. Reg. 58,784-85 (Nov. 23, 2001). The disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory test. 38 C.F.R. § 3.317(a)(1)(ii). Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. VAOPGCPREC 8-98 (Aug. 3, 1998). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). According to the veteran's service personnel records, he had one month service in Southwest Asia. Joint pain and headaches are included among the signs and symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Nonetheless, in this case, the veteran's joint pains and headaches have been attributed to known clinical diagnoses. 38 C.F.R. § 3.317(a)(1)(ii). Service connection is currently in effect for lumbar degenerative disc disease without significant radiculopathy; residuals of right ankle sprain; and status post right little finger injury with residual flexion contracture. The claimed headaches have been diagnosed as migraine (see November 2006 VA treatment extract). Thus, with regard to the veteran's allegations concerning joint pain and headaches, the evidence does not show that the veteran suffers from any chronic disability due to an "undiagnosed" illness manifested by these symptoms. 38 C.F.R. § 3.317(a)(2). The Board now turns to the issue of direct service connection for joint pain and headaches. With respect to direct service connection for knee joint pain, the Board has reopened and remanded a claim of service connection for that condition in this decision. Thus, they will be not be addressed here. As noted, the veteran's other complaints regarding the joints have been ascribed to his already service-connected disorders involving the lumbar spine, right ankle, right hand and right wrist. He otherwise testified as to joint pain affecting his elbows. The record contains a general diagnosis of degenerative joint disease (DJD); however, there are no findings of DJD affecting the elbows that are shown to be related to service. With regard to the current migraine condition, there is no complaint, treatment or diagnosis of that condition during service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 497. The veteran had one complaint of headaches during service when he was diagnosed with the flu. At the June 1997 separation examination, the veteran denied a history of headaches and the clinical evaluation was normal; no headache disorder was diagnosed. His service medical records, as a whole, provide negative evidence against the claim. Post-service, the first medical evidence of any complaint of headaches was at the October 2002 Registry examination. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson, 230 F.3rd at 1333. The Board notes the veteran's testimony that he was unable to obtain medical treatment for many years after service because he was homeless. The Board also notes that the veteran is competent to testify as to the subjective complaints of headaches. Layno v. Brown, 6 Vet. App. 465 (1994). However, the most competent and probative evidence of record is against the claim. That is, the one report of headaches in service was associated with the flu and the absence of additional complaint or treatment suggests that this was acute and transitory. There is no objective competent medical evidence to link the currently diagnosed migraine headaches to service. As the preponderance of the evidence is against the claim for service connection, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the Board is taking favorable action by reopening the claims of left ear hearing loss and knee disabilities and granting the claim of service connection for right ear hearing loss, any error with regard to either the duty to notify or assist in connection with those claims is harmless and will not be discussed further. As to the claims of service connection for sinusitis, joint pains and headaches, VA provided the veteran with notice letters in July 2003. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process, including following the issuance of supplemental statements of the case in July and October 2006. The claims were subsequently readjudicated in a January 2007 supplemental statement of the case, following the provision of notice. Mayfield, 444 F.3d at 1238. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. While the notification did not advise the veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for which service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has obtained service medical records, assisted the veteran in obtaining evidence and afforded the veteran the opportunity to give testimony before the Board. VA need not conduct an examination with respect to the claims denied herein because the information and evidence of record contains sufficient competent medical evidence to decide the claims. 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Simply stated, the standards of McLendon are not met in this case. There is no evidence of chronic sinusitis in service and the claimed joint pain (other than for the conditions for which service connection has been granted) and headache disorders were not demonstrated in service and have been attributed to known clinical diagnoses, but not to service. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. In fact, in September 2006, the veteran responded to the notice letters and indicated he had no additional evidence to submit. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claims decided herein at this time. ORDER New and material evidence having been added to the record on the issue of service connection for left ear hearing loss, the previously denied claim is reopened and is granted only to that extent. New and material evidence having been added to the record on the issue of service connection for a bilateral knee disability, the previously denied claim is reopened and is granted only to that extent. Service connection for right ear hearing loss is granted. Service connection for chronic sinusitis is denied. Service connection for joint pain, claimed as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117, is denied. Service connection for headaches, claimed as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117, is denied. REMAND As the Board has determined that the previously denied claims of service connection for a bilateral knee disability and left ear hearing loss have been reopened, the claims must be reviewed on a de novo basis. See Bernard v. Brown, 4 Vet. App. 384 (1993). Bilateral retropatellar pain syndrome was noted on the veteran's separation examination and a private physician has indicated that the veteran's current knee complaints may be related to service. The Board finds that a VA examination is needed to determine whether the veteran's current knee complaints are related to service. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83. With regard to the left ear hearing loss and chronic ear infections, a medical opinion is needed also. At enlistment, the veteran was noted to have undergone left ear tympanoplasty as a child and left ear hearing loss was noted on the enlistment examination. During service, the veteran underwent additional surgery on that ear. In January 1994, the diagnosis was chronic tympanic membrane perforation. At separation, the veteran was noted to have had a history of cholesteatoma at age 12, with the most recent surgery in 1994. The question is whether the veteran's current left ear hearing loss and/or ear infections (or residuals thereof) are related to service in some way. The evidence of record includes the February 2002 VA examiner's opinion that it is likely that a portion of the veteran's currently demonstrated hearing loss is associated with military noise exposure and acoustic trauma. That opinion suggests that the veteran's left ear hearing loss may have increased in severity during service. The government has the burden of showing by clear and unmistakable evidence that the condition existed prior to service and was not aggravated therein. It may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). Considering the veteran's pre-existing condition noted at enlistment and subsequent surgical treatment in service, the Board finds a medical opinion is needed in this case. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83. Finally, in a December 2006 decision, the RO declined to reopen a previously denied claim of entitlement to service connection for anxiety and denied a claim of service connection for PTSD. In May 2007, the veteran submitted a notice of disagreement as to that decision, but the RO has not yet issued a statement of the case as to those issues. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Thus these claims are being remanded for issuance of a statement of the case and to give the veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an appropriate VA examination to determine the current nature and likely etiology of any knee condition. All necessary studies and tests should be conducted. The claims file should be made available to the examiner for review. Following an examination and a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that any currently demonstrated disability, identified by diagnosis, affecting either knee is related to service. If any symptoms cannot be attributed to a known clinical diagnosis, the examiner should be requested to determine whether the veteran manifests any signs or symptoms of an undiagnosed illness, or a medically unexplained chronic multisymptom illness. The Board notes that disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered "chronic." A complete rationale should be given for all opinions and conclusions expressed. 2. Schedule the veteran for an audiological examination to determine the current nature and likely etiology of any left ear hearing loss and chronic ear infections. All necessary studies and tests should be conducted. The claims file should be made available to the examiner for review. Based on the examination and review of the record, the examiner should express an opinion as to: i) Did the veteran's preexisting left ear hearing loss or left ear cholesteatoma undergo a permanent increase in severity during his period of active service? ii). If your response to question #1 is affirmative (the left ear hearing loss or left ear cholesteatoma did increase in severity in service), is it clear and unmistakable that the increase in severity was due to natural progression of the disorder? 3. Issue a statement of the case to the veteran and his representative, addressing the issues of whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for anxiety and service connection for PTSD. The veteran and his representative must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if an appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order. 4. Thereafter, readjudicate the issues on appeal. If any determination is adverse to the veteran, issue a Supplemental Statement of the Case (SSOC), which includes a summary of additional evidence submitted and any additional applicable laws and regulations. The veteran and his representative should be provided an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs