Citation Nr: 1007437 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-13 617 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sinusitis. 2. Entitlement to service connection for ulcers. 3. Entitlement to service connection for a disability manifested by muscle and joint pain. 4. Entitlement to service connection for chronic fatigue syndrome. 5. Entitlement to a compensable evaluation for bilateral hearing loss disability. 6. Entitlement to an initial evaluation in excess of 10 percent for irritable bowel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision, by the Louisville, Kentucky, Regional Office (RO), which denied the Veteran's attempt to reopen his claim of entitlement to service connection for sinusitis; that rating action also denied service connection for ulcers, service connection for chronic fatigue syndrome, service connection for muscle and joint pain, and a compensable evaluation for bilateral hearing loss. He perfected a timely appeal to that decision. On December 8, 2009, the Veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is also of record. By the decision below, the application to reopen a previously denied claim of service connection for sinusitis is granted. The underlying claim of service connection for sinusitis, as well as claims of service connection for ulcers, muscle and joint pain, and chronic fatigue syndrome are addressed in the remand portion of the decision below. The claim for a higher rating for irritable bowel syndrome is also addressed in the remand. In an August 2009 rating decision, the RO granted service connection for irritable bowel syndrome, evaluated as 10 percent disabling, effective September 20, 2005. In a Statement of Accredited Representative in Appealed Case (in lieu of VA Form 646), dated in October 2009, the Veteran's representative disagreed with the initial 10 percent rating assigned to the IBS. The Board accepts the representative's October 2009 statement as a Notice of Disagreement (NOD) with the August 2009 rating decision. See 38 C.F.R. § 20.201 (2009). To date, however, the RO has not issued a Statement of the Case (SOC) with respect to this claim. This issue must be remanded for the preparation of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). FINDINGS OF FACT 1. By a rating action in February 1993, the RO denied the Veteran's claim of entitlement to service connection for sinusitis; the veteran did not appeal that determination. 2. Evidence added to the claims file since the February 1993 rating decision suggests that the Veteran has a current diagnosis of sinusitis that is due to his service, information not established by the evidence of record prior to the February 1993 decision. 3. Audiometric testing has revealed right ear hearing loss as level I and left ear hearing loss at level II for VA rating purposes. CONCLUSIONS OF LAW 1. Evidence received since a final February 1993 rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for sinusitis is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156(a), 20.1103 (2009). 2. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate 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); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim to reopen, the notice must include reference to the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, VA satisfied its duty to notify by means of letters dated in September 2005, March 2006, and May 2006 from the RO to the Veteran which were issued prior to the RO decision in September 2006. Additional letters were issued in February 2007 and July 2008. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the Veteran was afforded VA compensation examinations in March 2006, May 2006, August 2007, and October 2008. Thus, the Board finds that the purpose behind the notice requirements has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the Veteran nor his representative has contended that any evidence relative to the hearing loss issue is absent from the record. The Veteran has been afforded examinations on the hearing loss issue decided herein. Significantly, the Veteran was afforded examinations in March 2006 and October 2008. The reports reflect that the examiners solicited symptoms from the Veteran, examined the Veteran, and provided findings necessary to apply relevant rating criteria. Therefore, these examinations are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his hearing loss claim decided herein. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis When a claimant fails to timely appeal an RO decision denying his or her claim for benefits, that decision becomes final and can no longer be challenged except on the basis of clear and unmistakable error. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.). However, pursuant to 38 U.S.C.A. § 5108, 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 regulations regarding the adjudication of claims to reopen a finally decided claim are applicable for claims received on or after August 29, 2001. 66 Fed. Reg. at 45,620. Because the Veteran filed his petition to reopen the claim for service connection for sinusitis after August 29, 2001, the Board will apply these revised provisions. See 38 C.F.R. §§ 3.156(a), 3.159(c). Under the revised regulations, 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 the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran entered active duty in January 1988. His DD Form 214 indicates that he participated in Operation Desert Shield/Storm in the Kingdom of Saudi Arabia. The enlistment examination, dated in August 1987, is negative for any complaints involving the sinuses; clinical evaluation of the sinuses was reported as normal. The service treatment reports (STRs) show a notation in June 1991, which indicates that while on Operation Desert Storm, the Veteran was exposed to a large amount of smoke in the Burgan Oil Fields. On the occasion of the Separation examination in December 1991, the Veteran reported a history of sinusitis and chronic rhinitis; he also reported problems with sinus headaches. Clinical evaluation of the sinuses was reported as normal. An Audiological evaluation in March 1992 revealed normal hearing in the right ear for all frequencies except at 250 and 500 Hertz levels, where there is a mild decrease in acuity; hearing in the left ear was within normal limits for 250 to 2000 Hertz level, but there is a severe sensorineural hearing loss in the higher frequencies. On the occasion of his initial VA examination in May 1992, the Veteran complained of nasal congestion and sinus headaches for months; he stated that he had never had this trouble prior to military service. It was noted that an objective examination was within normal limits. The diagnosis was subjective sinus headaches and congestion with normal examination and normal sinus on X-rays. By a rating action in February 1993, the RO granted service connection for left ear hearing loss, evaluated as 0 percent disabling, effective January 12, 1992. That rating action denied the claim for service connection for sinusitis, based on a finding that it was not shown during service or during the recent VA examination. By letter dated in March 1993, the Veteran was informed of this decision and of his procedural and appellate rights. The veteran did not perfect an appeal of that decision. The Veteran's claim for service connection for sinusitis and an increased rating for hearing loss (VA Form 21-4138) was received in September 2005. Submitted in support of the claim were VA progress notes dated from October 2001 to September 2005, showing ongoing evaluation and findings of hearing loss. The Veteran was seen at a VA clinic in November 2001 with complaints of sinus problems; a CT scan of the sinuses revealed a small retention cyst in the sphenoid sinus. The impression was acute and chronic sinus disease. A PCE clinician note, dated in January 2002, reported a finding of chronic sinusitis with modest symptoms at present; it was also noted that the Veteran had peptic ulcer disease and was currently on medication. In June 2004, the Veteran underwent an Audiological consultation; the impression was moderate sensorineural hearing loss rising to normal hearing in the right ear, and severe high frequency sensorineural hearing loss in the left ear. The examiner stated that it was at least as likely as not that the Veteran's hearing loss began while in service. Received in November 2005 were treatment reports from Dr. Samir A. Guindi, dated from April 2004 to October 2004. These records show treatment for a chronic sinus condition. In a statement dated in April 2004, Dr. Guindi indicated that the Veteran had a problem with his sinuses for a long time and it had been getting worse over the last year. Dr. Guindi stated that the Veteran's main problem was chronic sinusitis for which he has prescribed some medication. A May 2004 clinic note reflects an impression of chronic sinusitis. During an annual follow up examination in December 2005, it was noted that the Veteran has had left carpal tunnel syndrome, chronic gastritis and multiple Jardin announcers, H. pylori positive 2001 endoscopy. The assessment was duodenal ulcers multiple in 2001, H. pylori gastritis, chronic sinus dysfunction and carpal tunnel syndrome. On the authorized Audiological evaluation in March 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 20 10 10 15 LEFT 35 20 40 80 95 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 in the left ear. The pertinent diagnosis was bilateral sensorineural hearing loss. The Veteran underwent a Gulf War examination in May 2006. It was noted that he was diagnosed with ulcers in 2001. The Veteran reported having had constant runny nose in 1991 while stationed in Saudi Arabia; he did not seek treatment. It was noted that, prior to discharge in 1992, he developed a stuffy nose and headaches. The Veteran indicated that, about three years ago, he developed constant sinus infections; he went to a physician who placed him on antibiotics. The Veteran maintained that his symptoms are not seasonal; he stated that they occur throughout the year. Following an evaluation and radiographic studies, the Veteran was diagnosed with mild polypoid mucosal thickening, right greater than left of both maxillary sinuses, and chronic sinusitis. Of record is a statement from the Veteran's wife, dated in April 2007, attesting to the fact that he began experiencing sinus problems while on active duty in the Persian Gulf. She noted that he never had any problems with his sinuses prior to military service. An Audiological note, dated in September 2007, reported findings of severe high frequency sensorineural hearing loss in the left ear and moderate low frequency sensorineural hearing loss below 1000 Hertz level in the right ear. The Veteran was afforded another VA examination in October 2008. At that time, he indicated that he wears hearing protection while on the job as mandated by his employer. The Veteran also reported being very sensitive to loud sounds and wears hearing protection very often. On the authorized Audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 20 10 15 15 LEFT 35 25 45 85 95 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 in the left ear. The pertinent diagnoses were moderate low frequency sensorineural hearing loss in the right ear, with a severe to profound high frequency sensorineural hearing loss in the left ear. An October 2008 VA progress note indicates that the Veteran was seen for insertion and programming of hearing aids. A May 2009 VA progress note reflects an assessment of acute sinusitis. At his hearing in December 2009, the Veteran testified that he had difficulty with hearing conversations, especially when there is background noise. The Veteran stated that he was wearing a hearing aid in the left ear. The Veteran testified that he had trouble with his sinuses prior to reporting it at his discharge examination in December 1991; he stated that they were with a mobile unit and it was difficult to go to sick call. The Veteran indicated that he experienced a lot of drainage while he was in the Persian Gulf and upon returning home. The Veteran reported that he started having sinus infections in 1994 for the first time; he was by Dr. Wier and was given antibiotics. A. Claim to Reopen--Sinusitis The Veteran's claim for service connection for sinusitis was previously considered and denied. In February 1993, the RO denied service connection for sinusitis based on a finding that it was not shown during service or during the recent VA examination; as such, the records failed to establish a diagnosis of sinusitis. Because the Veteran did not appeal the February 1993 RO decision, that decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, as noted above, pertinent law and regulation provides that if new and material evidence has been presented or secured with respect to a claim which has been disallowed, the claim may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The evidence added to the record since the February 1993 denial includes VA outpatient treatment reports, private treatment reports, as well as a VA examination report, which reflect diagnoses of chronic sinusitis in May 2004, May 2006, and July 2008. This evidence was not previously of record, and is not cumulative or duplicative of evidence before the RO in February 1993. Hence, the evidence is "new" within the meaning of 38 C.F.R. § 3.156. Moreover, as this evidence establishes current diagnosis of sinusitis, not shown in February 1993. In essence, it is relevant and probative of the issue at hand and cures one of the evidentiary defects that existed at the time of the prior denial. Based upon the reasons for the prior denial, the evidence is new and material, and the claim is reopened. B. Claim for Increase--Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38 C.F.R. § 4.1 (2009) requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2009) requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). After careful review of the evidentiary record, the Board concludes that the Veteran's hearing loss disability has not significantly changed and a uniform evaluation is warranted. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The present appeal involves the Veteran's claim that the severity of his service-connected bilateral hearing loss warrants a higher disability rating. The Veteran's service- connected hearing loss has been rated by the RO under the provisions of Diagnostic Code 6100. (Although service connection was granted in February 1993 for the left ear only, the RO has since treated both ears as service connected for rating purposes. See September 2006 rating decision.) The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz, or cycles per second. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VI. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determined the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determined the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. After a review of the evidence, the Board finds that the criteria for a compensable rating for the Veteran's service- connected bilateral hearing loss are not met. Accordingly, his claim for a compensable rating fails. Based on the March 2006 VA examination report, under Table VI contained in Diagnostic Code 6100, the average pure tone thresholds and speech recognition scores correspond to a numeric designation of Level I hearing in the right ear and Level II in the left ear. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable schedular rating. Additionally, the Veteran's most recent VA examination in October 2008 shows a right ear puretone decibel loss of 15 with speech recognition of 94 percent. This corresponds to a numeric designation of Level I hearing in the right ear. 38 C.F.R. § 4.87, Table VI (2009). He has a left ear average puretone decibel loss of 62.5 with speech recognition of 92 percent. These findings are consistent with Level II hearing in the left ear. These combined numeric designations result in a rating of 0 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). A review of all audiometric examinations of record would support a finding of a noncompensable evaluation. The Board notes that the Veteran's assertions and testimony that his hearing has deteriorated and has affected his employment are credible. However, in determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the numeric designations produce a noncompensable disability evaluation. 38 C.F.R. Part 4 Diagnostic Code 6100. Accordingly, the noncompensable disability evaluation presently assigned accurately reflects the degree of the Veteran's service-connected hearing impairment for rating purposes. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100. The Board has also considered the provisions of 38 C.F.R. § 4.86, which provide that an individual who manifests puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 hertz) will be given a numeric designation from either Table VI or VIa, whichever results in the higher number. Id. Each ear will be evaluated separately. However, Section 4.86(a) is not applicable in this case because, as noted above, results of Audiological testing do not show puretone thresholds at all four of the specific frequencies of 55 decibels or more. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The audiometric results reported above show that the veteran does not have the exceptional pattern of hearing loss envisioned in 38 C.F.R. § 4.86(b). The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, while the veteran has reported being very sensitive to loud noises and having to wear hearing protection as mandated by his employer, nothing suggests that his hearing loss has caused him marked interference with employment, meaning above and beyond that contemplated by the rating schedule, or necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (2). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on the foregoing, the claim for a compensable evaluation for a bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER The application to reopen a claim of service connection for sinusitis is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. REMAND As noted above, the VCAA requires that VA must provide notice that informs the claimant (1) of the information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. A. Sinusitis Having determined that the Veteran's claim of entitlement to service connection for sinusitis is reopened, VA has a duty to assist the Veteran in the development of evidence pertinent to his claim under 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009). Under the Veterans Claims Assistance Act (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2009). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In this case, the service treatment records show that, in June 1991, it was noted that the Veteran was exposed to smoke in the Burgan Oil fields while participating in Operation Desert Storm in February 1991. On the occasion of his separation examination in December 1991, the Veteran reported problems with sinusitis, chronic rhinitis and sinus headaches. Post-service medical records show that the Veteran continued to experience sinus problems. The Veteran testified that he experienced problems during service, but was unable to seek treatment due to the fact that he was attached to a mobile unit. He also testified that he has experienced problems with his sinuses since his separation from service. In a private medical statement, dated in April 2004, Dr. Guindi indicated that the Veteran had a problem with his sinuses for a long time and it had been getting worse over the last year. Moreover, a Gulf War examination in May 2006 resulted in a diagnosis of chronic sinusitis. The Board finds that the record does not include a VA medical opinion discussing the etiology of the sinusitis specifically addressing the Veteran's exposure to smoke from the oil fields during his service in the Persian Gulf as required by Duenas v. Principi, 18 Vet. App. 512 (2004). Based upon the above, the Veteran should be afforded a VA examination to determine the nature and etiology of his chronic sinusitis. In particular, the VA examiner should be asked to discuss the relationship, if any, between the Veteran's disability and his military service. At his December 2009 hearing the Veteran reported that he developed a sinus problem during service and that he continued to have sinus problems since discharge from service. As noted above, the medical evidence indicates that the Veteran has been diagnosed with chronic sinusitis. A VA examination with nexus opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 C.F.R. § 3.159(c)(4) (2009). B. Ulcers As noted above, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c) (4) (i) (2009). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). Service treatment records indicate that the Veteran was seen in June 1989 for complaints of diarrhea for the previous 4 days. The Veteran reported 25 episodes of diarrhea, nausea and vomiting; he also reported dizziness. Examination of the abdomen revealed slight tenderness upon palpation. The assessment was acute gastritis with dehydration. The Board notes that the Veteran's post-service medical records documented him as having been diagnosed with peptic ulcer disease. An October 2001 VA progress note indicates that an esophagogastroduodenoscopy revealed multiple duodenal ulcers. A PCE clinician note, dated in January 2002, noted that the Veteran had peptic ulcer disease and was currently on medication. During an annual follow-up examination in December 2005, the assessment was multiple duodenal ulcers in 2001 and H. pylori gastritis. The Board observes the Veteran was provided VA examinations in May 2006 and September 2008 and was diagnosed with peptic ulcer disease; however, an opinion was not provided as to whether his peptic ulcer disease is related to active military service. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that, with regards to the Veteran's claim of service connection for ulcers, further development, specifically a VA examination, is necessary to obtain an etiological medical opinion prior to a Board decision. C. Chronic Fatigue Syndrome and Muscle and Joint Pain The Veteran alleges that he has chronic fatigue and multiple joint pains, as manifestations of undiagnosed illness resulting from his service in Operation Desert Shield/Desert Storm. He is a Persian Gulf War veteran, having served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e); 38 C.F.R. § 3.317(d). For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, or sleep disturbances. The chronic disability must have become manifest either during active military 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, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a) (b). For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a) (2) (i). In addition, under section 3.317, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a) (2) (ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a) (3). For purposes of § 3.317, 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. 38 C.F.R. § 3.317(a) (4). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, there is no requirement that there be competent evidence of a nexus (i.e., link) between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. Id. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). As the Court also acknowledged in Gutierrez, however, this presumption is rebuttable if there is affirmative evidence that an undiagnosed illness was not incurred in service or was instead caused by a supervening condition. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known clinical diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA is not generally authorized to grant service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The notable exception to this rule is 38 C.F.R. § 3.317, which permits, in some circumstances, service connection of signs or symptoms that are objective indications of chronic disability, even though such disability is due to undiagnosed illness. What is important is whether a symptom is a manifestation of a syndrome that (1) is a clinical diagnosis accepted by VA and (2) is shown by the evidence to be the result of service. If so, service connection may be granted under 38 C.F.R. § 3.303(d). If not, service connection must be considered under 38 C.F.R. § 3.317. Service connection may not be granted under § 3.317 if the symptom is a manifestation of a disability attributable to a "known clinical diagnosis," unless it is a qualifying chronic disability such as medically unexplained chronic multi-symptom illness like irritable bowel syndrome, fibromyalgia, or chronic fatigue syndrome. In the Veteran's case, the medical evidence reflects complaints and findings of chronic fatigue and muscle and joint pain. Whether these complaints are due to a qualifying chronic disability as defined by § 3.317 from the veteran's Persian Gulf War service is a question that must be investigated. The Veteran had a Gulf War protocol examination in connection with his claims in May 2006. He complained of chronic fatigue, which began about 5 years earlier. He also reported joint aches and pains that started about 8 years earlier; he specifically noted pain in the leg and back muscles. The Veteran also reported infrequent pain in his shoulders, elbows and wrists. The examiner stated that chronic fatigue syndrome was not established, as the Veteran did not meet six of the established criteria. However, the examiner stated that chronic/recurrent sinusitis and chronic rhinitis can both contribute to/cause fatigue. The Veteran was also diagnosed with scoliosis of the spine, spondylosis of the thoracic spine, and carpal tunnel syndrome. It was noted that problems associated with scoliosis of the spine included muscle and joint pain. It is unclear whether the claimed symptoms are manifestations of already service-connected disabilities, such as irritable bowel syndrome. And there remains the matter of whether they are due to undiagnosed illness or due to a disease process that might also be found to be traceable to service, such as sinusitis. Additional medical comment is needed concerning this, too. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c) (4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). D. Irritable bowel syndrome As noted above, the August 2009 rating decision granted service connection for irritable bowel syndrome, evaluated as 10 percent disabling, effective September 20, 2005. Thereafter, the Veteran's representative submitted a Statement of Accredited Representative in Appealed Case (in lieu of VA Form 646), dated in October 2009, wherein he noted that the Veteran disagreed with the rating percentage assigned to the IBS. The Board finds that this statement may be reasonably construed as a notice of disagreement (NOD) with the August 2009 rating decision. A statement of the case has not been issued with regard to a higher evaluation for IBS. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand is required. Manlincon v. West, 12 Vet. App. 238 (1999). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims remaining on appeal. The records sought should include treatment records from Dr. Wier and medical records identified by the Veteran in December 2009. With any necessary authorization from the Veteran, the RO should attempt to obtain and associate with the claims file any medical records identified by the Veteran that have not been secured previously. If the RO is unsuccessful in obtaining any medical records identified by the Veteran, it should inform him and his representative of this and ask them to provide a copy of additional medical records they may have obtained on their own that have not been secured previously. 2. Schedule the Veteran for a VA examination of the sinuses to determine nature and etiology of all sinus disabilities present. The examiner should be provided the Veteran's claims folders for review of the Veteran's medical history. All necessary tests and studies should be performed. The examiner should express an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) any current sinus disability is related to military service. A rationale should be provided for all opinions. 3. The Veteran should be scheduled for a VA gastrointestinal examination to determine the time of onset of any ulcer disease. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner for review of the case. Following review of the claims folder, and an examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's ulcer disease is attributable to his period of active military service. The examiner must provide a rationale for the opinion. 4. The Veteran should be afforded an examination to determine the nature of any disability or illness manifested by chronic fatigue and/or muscle and joint pain. The claims file should be made available to the examiner for review prior to the examination. The examiner should: a) state whether the Veteran's claimed muscle and joint pain and body aches are associated with a diagnosable illness. In doing so the examiner is requested to comment as to whether the veteran's symptomatology represents a known clinical diagnosis. If the symptomatology is attributable to a known clinical diagnosis, the examiner should also provide an opinion as to whether it is as least as likely as not that the disability manifested by muscle and joint pain and body aches is related to the Veteran's period of military service. b) if the Veteran's muscle and joint pain is not due to a specific disease entity, opine whether such pain represents an objective indication of chronic disability resulting from an undiagnosed illness related to the veteran's Persian Gulf War service, or a medically unexplained chronic multi- symptom illness, which is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome. c) state whether the Veteran's claimed fatigue is associated with a diagnosable illness, such as sinusitis, for example. If the symptomatology is attributable to a know clinical diagnosis, the examiner should also provide an opinion as to whether it is as least as likely as not that the diagnosed disability is related to the Veteran's period of military service. d) if the Veteran's fatigue is not due to a specific disease entity, opine whether fatigue represents an objective indication of chronic disability resulting from an undiagnosed illness related to the veteran's Persian Gulf War service, or a medically unexplained chronic multi-symptom illness, which is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome. 5. Upon completion of the above, if any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case. 6. Issue a statement of the case to the Veteran and his representative addressing the claim of entitlement to a higher evaluation for irritable bowel syndrome. The Veteran also must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). (Do not certify this issue to the Board unless a timely appeal is received.) After the above action has been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs