Citation Nr: 1307618 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-26 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral eye disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to service connection for muscle pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 8. Entitlement to service connection for difficulty sleeping, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 9. Entitlement to service connection for arthritis of multiple joints, other than the right ankle and low back, including secondary to a service connected disability. 10. Entitlement to service connection for a bilateral eye disability. 11. Entitlement to a compensable rating for hypertension. 12. Entitlement to an increased rating for a low back disability, currently evaluated as 20 percent disabling. 13. Entitlement to an increased rating for eczema, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to August 1992, including service in the Southwest Asia theater of operations from January 13 to April 25, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009, January 2010, and June 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. As to the claim for an increased rating for eczema, it appears that the Veteran attempted to limit the issues on appeal in his January 2011 VA Form 9, Appeal to Board of Veterans' Appeals, so as to not include this issue. Nonetheless, given the United States Court of Appeals for Veterans Claims (Court) hold in Evans v. Shinseki, 25 Vet. App. 7 (2011), the Board finds that it has jurisdiction over this issue. In January 2013, the Board received a waiver of agency of original jurisdiction (AOJ) for the VA treatment records dated from June 2009 to January 2012 that were added to the virtual claims file by the RO in January 2012 and April 2012. Therefore, the Board finds that VA adjudication of the current appeal may go forward without first remand the appeal for the issuance of another supplemental statement of the case (SSOC). Later in January 2013, the RO also added to the virtual claims file VA treatment records dated from May 2012 to December 2012. However, the Board finds that VA adjudication of the current appeal may go forward without a waiver of AOJ review of these records because they are not additional pertinent evidence. See 38 C.F.R. § 19.31 (2012) (a SSOC will be furnished to the Veteran when additional pertinent evidence is received after a statement of the case has been issued). The claim of service connection for arthritis of multiple joints and a bilateral eye disability as well as the claims for increased ratings for hypertension, a low back disability, and eczema are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A January 1993 rating decision denied the Veteran's claim of service connection for bilateral hearing loss; he did not appeal that decision and new and material evidence was not physically or constructively received within the one year appeal period. 2. An August 1993 rating decision denied the Veteran's claim of service connection for a bilateral eye disability; he did not appeal that decision or submit new and material evidence within the one year appeal period. 3. Evidence received since the time of the final January 1993 and August 1993 rating decisions is new, related to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the Veteran's claims of service connection for bilateral hearing loss and a bilateral eye disability. 4. The evidence shows that the Veteran has bilateral hearing loss as a result of his military service. 5. The evidence shows that the Veteran has hepatitis C as a result of his military service. 6. The evidence shows that the Veteran's fatigue, joint pain, muscle pain, and difficulty sleeping are due to hepatitis C. CONCLUSIONS OF LAW 1. The January 1993 and August 1993 rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for bilateral hearing loss is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral eye disability is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Bilateral hearing loss was incurred in military service. 38 U.S.C.A. §§ 1110, 1131, 1112, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 5. Hepatitis C was incurred in military service. 38 U.S.C.A. §§ 1110, 1131, 1112, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 6. The criteria for service connection for fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.20, 4.88a, (2006). 7. The criteria for service connection for joint pain due, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1117, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2012). 8. The criteria for service connection for muscle pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1117, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). 9. The criteria for service connection for difficulty sleeping, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1117, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As to the applications to reopen claims of entitlement to service connection for bilateral hearing loss and a bilateral eye disability as well as the claims of service connection for bilateral hearing loss and hepatitis C, given the fully favorable decision below the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary since any deficiency in the timing or content of such notice would constitute harmless error. As to the remaining issues on appeal, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that as to the remaining issues on appeal there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has Veteran status. Also as to the remaining issues on appeal, the Board finds that letters dated in June 2009, July 2009, and September 2009 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims, the Board finds that providing him with this notice in the above letters followed by a readjudication of the claims in the April 2011 supplemental statements of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if VA had a duty to provide additional notice and failed to do so, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above VCAA letters as well as the rating decisions, statements of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service records including his service treatment records and his records from the Omaha VA Medical Center. As to the claims of service connection related to the Veteran's service in the Persian Gulf, the record shows that he was provided with a VA examination in June 2009 that is adequate to adjudicate the claims because, after a review of the record on appeal and an examination of the claimant, the examiner provided a diagnosis of the disability causing the claimant's adverse symptomatology which diagnosis was based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007). In summary, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's record including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims to Reopen The Veteran and his representative contend that the claimant's current bilateral hearing loss and bilateral eye disorder are due to his military service. It is also requested that the Veteran be afforded the benefit of the doubt. As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the first denial of the claims in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In a January 1993 rating decision, the RO first denied service connection for bilateral hearing loss. The Veteran did not appeal the January 1993 rating decision. However, in the first year following the January 1993 rating decision, the RO obtained and associated with the claims file a May 1993 audiological examination. This audiological examination documented the Veteran's post-service treatment for hearing problems. However, the medical record did not provide the Veteran a diagnosis of hearing loss as defined by VA at 38 C.F.R. § 3.385, show that the Veteran's hearing loss manifested itself to a compensable degree in the first post-service year, or providing a link between the hearing problems and military service. See 38 C.F.R. § 3.303, 3.307, 3.309. In fact, this additional medial evidence did not show anything as regards to the Veteran's hearing loss that was not part of the record at the time of the January 1993 rating decision. Accordingly, the Board finds that this evidence is not new and material as it is cumulative of evidence previously considered. 38 C.F.R. § 3.156(a). Therefore, the Board finds that the record does not show that the Veteran, following the January 1993 rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b) (2012). Accordingly, the Board finds that the rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Similarly, in an August 1993 rating decision the RO initially denied service connection for a bilateral eye disorder. The Veteran did not appeal the August 1993 rating decision. Moreover, the record does not show that the Veteran, following the rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the August 1993 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. As to reopening the prior final decisions, the January 1993 rating decision denied the claim of service connection for bilateral hearing loss because no disability was diagnosed at the December 1992 VA examination. Similarly, the August 1993 rating decision denied the claim of service connection for a bilateral eye disorder because no disability was diagnosed at the May 1993 VA examination. However, since the January 1993 and August 1993 rating decisions, the Veteran's treatment records show his being diagnosed with bilateral hearing loss as defined by 38 C.F.R. § 3.385 (see April 2009 VA audiological examination) and a bilateral eye disorder diagnosed as ocular rosacea, suspected cupping gleuic, myopia, and cataracts (see Dr. Gleason-Janky eye examination dated in June 2006; VA treatment record dated in March 2010). To establish service connection for bilateral hearing loss and a bilateral eye disorder, there must be, among other things, medical evidence of a current disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012); Hickson v. West, 12 Vet. App. 247, 253 (1999); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."). Therefore, the Board finds the treatment records, the credibility of which must be presumed (see Kutscherousky, supra), are both new and material evidence as defined by regulation. See 38 C.F.R. §§ 3.156(a), 3.303; Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The claims of entitlement to service connection for bilateral hearing loss and a bilateral eye disorder are therefore reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Service Connection Claims As to his bilateral hearing loss, the Veteran claims that it was caused by his constant exposure to loud noise as a turbine mechanic as well as working around other engineering equipment, generators, and motors. See June 2009 statement in support of claim. He also claimed it was caused by his exposure to jet aircraft on the flight deck of ships he served on. Id. As to his hepatitis C, the Veteran claims that it was caused by his treatment in February 1992 for infected lymph nodes that included IV drug treatment as well as his exposure to toxins in engine room waste water and sewer flooding working around propulsion shafts. Id. He also told the December 2009 VA examiner that he thought that it was caused by getting a tattoo while on active duty as well as blood exposure. As to the Persian Gulf claims, the Veteran asserts that his joint pain, muscle pain, and difficulty sleeping are due to his exposure to toxins while his ship sailed in the waters of the Persian Gulf during the Persian Gulf War. In general, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In summary, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. As to undiagnosed illness claims, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); See also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317(c)(1-2). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation. This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease. If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the Veteran having had the associated disease in column "A" in that same table. "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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 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 evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Hearing Loss & Hepatitis C. As to medical evidence of a current disability, audiological examinations show the Veteran being diagnosed hearing loss in each ear as defined by VA at 38 C.F.R. § 3.385 since 2009. See, for example, April 2009 VA audiological report. Similarly, medical records show the Veteran being diagnosed with hepatitis C since 2002. See VA treatment record dated in March 2002. These opinions are not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board finds that the record contains evidence of current disabilities. As to evidence of in-service incurrence of a disease or injury, as noted above, the Veteran claimed that he was exposed to acoustic trauma while on active duty working on turbines as a mechanic and working around other engineering equipment, generators, and motors as well as being exposed to jet aircraft on the flight deck of ships he served on. As to his hepatitis C, the Veteran claimed that it was caused by his treatment in February 1992 for infected lymph nodes which treated including IV drug treatment, his exposure to toxins in engine room waste water and sewer flooding working around propulsion shafts, and getting a tattoo. As to both the bilateral hearing loss claims and the hepatitis C claim, the Board finds that the Veteran is both competent and credible to report on what he can see and feel even if a specific injury is not documented in his service treatment records. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). In this regard, the Board finds that it may not reject the credibility of the Veteran's lay claims regarding the in-service injuries simply because it is not corroborated by contemporaneous medical records. See Buchanan, supra; Jandreau, supra. As to the bilateral hearing loss claim, in-service audiological examinations dated in August 1971, November 1979, May 1980, December 1982, May 1984, June 1986, October 1986, July 1987, September 1988, October 1989, October 1991, and June 1992 document increased thresholds. Moreover, while they do not show hearing loss as defined by 38 C.F.R. § 3.385, the Court Hensley v. Brown, 5 Vet. App. 155, 157 (1993) held that the threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss and examinations dated in August 1971, November 1979, December 1982, June 1986, September 1988, October 1989, September 1991, and June 1992 documented thresholds of 20 decibels or higher bilaterally; the May 1980 and May 1984 examinations documented thresholds of 20 decibels or higher in the left ear; and the July 1987 examination documented thresholds of 20 decibels or higher in the right ear. The Court in Hensley also held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Moreover, the June 1992 retirement examination note only noted a history of hearing loss with increased auditory thresholds but advised the Veteran to follow-up with VA if hearing problems arose. Also as to the bilateral hearing loss claim, service treatment records dated in the 1980's and 1990's document the Veteran's complaints and treatment for otitis media and/or otitis externa. See service treatment records dated in January 1982, February 1982, September 1986, October 1986, May 1987, September 1988, October 1989, and August 1990. Service treatment records also show a problem with increased ear cerium. See service treatment records dated in May 1987 and October 1989. As to the hepatitis C claim, a December 1972 record documents the fact that the Veteran was given 2.0 cc of gamma globulin for post exposure hepatitis. Service treatment records dated in February 1992 also documented the Veteran's treatment for infected lymph nodes. Moreover, while an August 1971 examination did not note that the Veteran had any tattoos, the November 1979 examination thereafter noted that he had one tattoo, and the subsequent July 1987 and June 1992 examinations noted that he had three tattoos. As to both the bilateral hearing loss claims and the hepatitis C claim, the Veteran's DD Form 214 confirms both his claims regarding working in very loud environment and being exposed to toxins in engine room waste water and sewer flooding working around propulsion shafts because it shows that his occupational specialty was turbine electrical and gas turbine mechanical maintenance technician. Service treatment records also document he served in the engineering department of the U.S.S. America which is an aircraft carrier. As to the hepatitis C claim, the Board notes that VA has recognized the following activities as known risk factors for hepatitis C: intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. Given the above documented in-service problems with hearing loss and exposure to hepatitis as well as the fact that the Veteran obtained three tattoos while on active duty, the claimant's occupational specialty which involved noise exposure, and the competent and credible lay claims, the Board finds that the most competent and credible evidence of record shows that the appellant had in-service injuries (i.e., acoustic trauma and hepatitis C virus exposure). See Hickson, supra. As to evidence of a relationship between the current bilateral hearing loss and the Veteran's in-service injury, Craig A. Foss, Au.D., opined in February 2011 that, after a review of some of the claimant's service records as well as after taking into account the appellant's claims of being exposed to loud machinery and jet aircraft at that time, that it is quite likely that the noise exposure he suffered during military service was the beginning of his current hearing loss. In this regard, Dr. Foss noted that the type and degree of the Veteran's hearing level is consistent with noise induced hearing loss. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Accordingly, the Board finds that the most competent and credible evidence of record shows that the Veteran current bilateral hearing loss is due to his military service. See Hickson, supra. As to evidence of a relationship between the current hepatitis C and the Veteran's in-service injury, the December 2009 VA examiner opined that it is highly unlikely that the Veteran's hepatitis C was caused by one of the risk factors he reports from service. The examiner thereafter opined that the Veteran's exact risk factor is undeterminable and no alleged risk factor is more likely than another to be the cause of his hepatitis C. In support of his opinion, the examiner opined as to the Veteran's exposure to waste water and sewer flooding, that he could not find any documentation that states that this exposure could cause hepatitis C. As to the tattoos the Veteran received while on active duty, the examiner opined that tattooing has not been "extensively proven" to cause hepatitis C. As to the Veteran's other claims regarding in-service blood exposure holding dressings on injured sailors, the examiner opined that under current guidelines this is not a major cause of hepatitis C. On the other hand, in February 2011 Dr. Kenneth L. Vettel, M.D., opined, after noting that the Veteran's service treatment records document his exposure to infectious hepatitis in December 1972 with his thereafter being given 2 cc of gamma globulin, that there is no doubt that his hepatitis C is as least as likely as not a complication of that exposure because the claimant had adequate documentation regarding his exposure. The Board does not find the December 2009 VA examiner's opinion probative because the examiner disregarding VBA letter 211B and the VA FL issued in June 2004 which specifically found that tattoos, like the three the Veteran received while on active duty, are known risk factors for hepatitis C. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Lastly, the Board does not find the December 2009 VA examiner's opinion credible because the examiner did not appear to apply the "at least as likely as not" standard but instead applied a higher standard such as "extensively proven" and "not a major cause." Id. Therefore, the Board finds that Dr. Vettel's opinion is the most competent and credible medical evidence of record. See Colvin, supra. Accordingly, the Board finds that the most competent and credible evidence of record shows that the Veteran current hepatitis C is due to his military service. See Hickson, supra. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board finds that service connection is warranted for bilateral hearing loss and hepatitis C. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The Persian Gulf claims As to the Veteran's claims of service connection for undiagnosed illnesses manifested by joint pain, muscle pain, and difficulty sleeping the record showed he served in the Southwest Asia Theater of operations during the Persian Gulf War. Therefore, service connection may also be established under 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.317 (2012). However, the June 2009 VA examiner opined that the Veteran's joint pain, muscle pain, and difficulty sleeping were caused by his hepatitis C. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Therefore, since the Veteran's joint pain, muscle pain, and difficulty sleeping have been attributed to a known clinical diagnosis, hepatitis C, the Board finds that they are not illnesses that the Secretary has determined warrants presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Accordingly, the Board finds that service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Further, because no current disabilities manifested by joint pain, muscle pain, and difficulty sleeping, service connection must be denied on a direct basis. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). ORDER New and material evidence having been submitted, the Veteran's claim for service connection for bilateral hearing loss is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for service connection for a bilateral eye disability is reopened, and to that extent only, the appeal is granted. Service connection for bilateral hearing loss is granted. Service connection for hepatitis C is granted. Service connection for fatigue is denied. Service connection for joint pain is denied. Service connection for muscle pain is denied. Service connection for difficulty sleeping is denied. REMAND As to the newly reopened claim of service connection for a bilateral eye disability, a July 1987 service examination noted a history of eye trouble and documented his complaints of eye fatigue and a November 1987 service treatment record documents the Veteran's complaints and treatment for blurred vision. Moreover, as reported above, starting in 2006 the post-service record documents the Veteran's complaints and treatment for eye disabilities diagnosed as ocular rosacea, suspected cupping gleuic, myopia, and cataracts. See June 2006 eye examination from Dr. Gleason-Janky; March 2010 VA treatment record. Further, the Board finds that the Veteran is competent to report of having eye problems in-service and since that time because these symptoms come to him vie his senses. See Davidson; Buchanan. Given this record, the Board finds that a remand is required to obtain a medical opinion as to the relationship, if any, between any of the Veteran's post-service bilateral eye disabilities and his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). As to the claim of service connection for arthritis of multiple joints, other than the right ankle and low back, the Veteran asserts that it was caused by the rigors of 16 years of ship board service. In the alternative, he maintains that it was caused or aggravated by his service connected low back and right ankle disabilities. In this regard, an August 2012 magnetic resonance imaging evaluation (MRI) diagnosed the Veteran with cervical spine degenerative disc disease and bulging disks. Moreover, service treatment records document the Veteran's complaints and treatment for cervical spine pain and stiffness as well as para-spinal muscle pain. See service treatment records dated in May 1978, June 1978, June 1979, July 1979, November 1979, April 1988, November 1988, and July 1989. They also note a history of an April 1988 motor vehicle accident. Moreover, after X-rays, the Veteran was diagnosed with chronic cervical spine strain/muscle strain with a spur at C6. Furthermore, the Board finds that the Veteran is competent to report of having cervical spine problems in-service and since that time because his symptoms (i.e., pain and limitation of motion) comes to him via his senses. See Davidson; Buchanan. Given this record, the Board finds that a remand is required to obtain a medical opinion as to the relationship, if any, between any of the Veteran's post-service cervical spine disabilities and his military service and/or his already service connected disabilities. See McLendon. Given the VA treatment records that have been added to the claims file since the last hypertension, low back disability, and eczema VA examinations, the Board finds that these issues need to be remanded to provide the Veteran with new examinations to ascertain the current severity of these disabilities. See 38 U.S.C.A. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment). The record shows that the Veteran receives ongoing treatment from the Omaha VA Medical Center. However, his post-December 2012 treatment records from this facility do not appear in the claims file. Therefore, while the appeal are in remand status these records should be obtained and associated with the claims file as well as any outstanding contemporaneous treatment records from any private healthcare provider. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, these issues are REMANDED for the following actions: 1. Physically or electronically associate with the record the Veteran's post-December 2012 treatment records from Omaha VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence relating to the origins of his bilateral eye disorder and arthritis as well as the current severity of his hypertension, low back disability, and eczema. He should be provided an appropriate amount of time to submit this lay evidence. All actions to obtain any records should be documented in the claims file. 3. Provide the Veteran with an appropriate VA examination to ascertain the origins of his bilateral eye disability. The claims file must be provided to the examiner in connection with the examination. The examiner shall conduct all indicated tests and studies and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner is directed to provide answers to the following questions: a. Is it at least as likely as not that any current eye disorder is related to or had its onset in service? b. Is it at least as likely as not that the Veteran's myopia was aggravated by a superimposed injury during service? In providing answers to the above questions, the examiner must comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. Provide the Veteran with an appropriate VA examination to ascertain the origins of his arthritis of multiple joints, other than the right ankle and low back, diagnosed as cervical spine degenerative disc disease and bulging disks. The claims file must be provided to the examiner in connection with the examination. The examiner shall conduct all indicated tests and studies and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner is directed to provide answers to the following questions: a. Is it at least as likely as not that any current cervical spine disability is related to or had its onset in service? b. Is it at least as likely as not that cervical spine arthritis manifested itself to a compensable degree in the first post-service year? c. Is it at least as likely as not that any current cervical spine disability was caused by any service-connected disability including the service connected low back disability and right ankle disability? d. Is it at least as likely as not that any current cervical spine disability was aggravated by any service-connected disability including the service connected low back disability and right ankle disability? In providing answers to the above questions, the examiner must comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability and service treatment records document cervical spine problems. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 5. Provide the Veteran with a hypertension examination. The claims file should be provided to the examiner in connection with the examination. All necessary tests should be conducted and all findings should be set forth in detail. All findings and conclusions should be set forth in a legible report. 6. Provide the Veteran with an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's back disability. The claims folder should be made available to and reviewed by the examiner. The examiner should identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. In addition, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has bowel or bladder problems related to his low back disability. The examiner must also indicate the impact the Veteran's low back disability has on his ability to secure or follow a substantially gainful occupation. All findings and conclusions should be set forth in a legible report. 7. Provide the Veteran with a skin examination. The claims file should be provided to the examiner in connection with the examination. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his eczema. In this regard, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 8. Then readjudicate appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefit, to include a summary of the evidence received, and any evidence not received since the December 2010 statement of the case (SOC) as to the claims for increased rating for the low back disability and eczema and the April 2011 SSOC as to claim for a compensable rating for hypertension as well as the claims for service connection, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs