Citation Nr: 1330670 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 06-15 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for dizziness and intermittent deafness of the right ear, to include as due to undiagnosed illness or other qualifying chronic disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1977, October 1978 to October 1982, and July 1983 to October 1994, to include service in the Southwest Asia theater of operations from December 1990 to May 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of that hearing is associated with the claims file. The Veteran's appeal was remanded by the Board in August 2010, April 2012, November 2012 and May 2013 for further evidentiary development. As will be discussed below, the Board is granting the Veteran's claim in full, and thus, it is unnecessary to discuss whether the Board's prior remand directives were substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). Characterization of the issue on appeal Throughout the pendency of the appeal, the Veteran's claims to establish service connection for dizziness and intermittent deafness of the right ear were developed under several theories of entitlement, to include direct and secondary service connection, and adjudicated as two separate issues. However, the Veteran is a Persian Gulf Veteran, and thus, the laws and regulations pertaining to claims for service connection as due to undiagnosed illness or other qualifying chronic disability are applicable. As will be discussed below, due to the language of 38 C.F.R. § 3.317 and 38 U.S.C.A. § 1117, which govern claims brought under this theory of entitlement, the Board has merged these issues, and the Veteran's claim is as stated on the title page of this decision. Further, because the Veteran's claim is being granted to the fullest extent under the laws and regulations pertinent to claims for service connection as due to undiagnosed illness or other qualifying chronic disability, the Board's analysis will not consider the theories of direct and secondary service connection, and he is not prejudiced by the Board's actions in this respect. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Referred issue In March 2005, the Veteran filed a claim to establish service connection for occasional deafness of the right ear. In an effort to provide the Veteran every opportunity under the law, the Board expanded the Veteran's original claim to include right ear hearing loss pursuant to the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Despite the Board's expansion of the Veteran's claim, the pertinent regulation pertaining to hearing loss claims, 38 C.F.R. § 3.385, was not discussed in adjudicating the Veteran's claim, and he was not provided an audiological examination with audiometric testing until June 2013. As will be discussed further below, the preponderance of the evidence of record reflects that the Veteran's intermittent deafness of the right ear is a neurologic symptom not attributed to any specific disability. Further, the June 2013 examiner provided a diagnosis of sensorineural hearing loss in the right ear and audiometric test results reflect that the Veteran currently has right ear hearing loss for VA purposes under 38 C.F.R. § 3.385. In light of above, the Board concludes that a claim of entitlement to service connection for right ear hearing loss has been raised by the record; however, because this issue has not been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board did not have jurisdiction over it and it is referred to the RO for development and adjudication in the first instance. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). FINDING OF FACT The most probative evidence reflects the Veteran's intermittent dizziness and deafness of the right ear are neurological signs and/or symptoms of an undiagnosed illness. CONCLUSION OF LAW The criteria for service connection for intermittent dizziness and deafness of the right ear as neurological signs and/or symptoms of an undiagnosed illness have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for service connection for dizziness and intermittent deafness of the right ear as neurological signs and/or symptoms of an undiagnosed illness, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). As discussed above, because the Board is granting the Veteran's service connection claim under the laws and regulations pertinent to undiagnosed illness or other qualifying chronic disabilities, the Board's analysis will focus on this theory of entitlement only and the laws and regulations pertaining to direct and secondary service connection will not be recounted or discussed. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability which cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. Id. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)-(5). Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B); 38 C.F.R. § 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). With claims based on undiagnosed illness, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. VAOPGCPREC 8-98 (Aug. 3, 1998). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. Id. Analysis Throughout the pendency of the appeal, the Veteran has stated that, since his separation from service, he has experienced continuing episodes of dizziness and intermittent deafness of the right ear. The Veteran testified in January 2009 that a private neurologist told him that these neurologic symptoms could not have been caused solely by a post-service motor vehicle accident which occurred in 2000, but must have had a prior causative factor. The June 2012 VA examination reflects the Veteran's report that he completely lost his hearing in his right ear for one or 2 days, off and on, for a six-month period of time three years ago (in 2009 - after he filed the current claim), and experienced dizziness, described as seeing spots, which would occur once a week or once every two weeks. After physical examination, the June 2012 examiner ultimately concluded that the Veteran's claimed occasional deafness in right ear and dizziness were not part of a diagnosed disability, reasoning that these symptoms occurred during a short 6-month period in 2009 (approximately 3 years prior to the June 2012 VA examination) and subsequently resolved. Despite that finding, however, the record reflects that the Veteran has continued to complain of dizziness and intermittent right ear deafness, including as recently as June 2013. Similarly, after a review of the claims file and physical examination of the Veteran, to include a normal videonystagmography study, the May 2013 VA examiner stated that the Veteran's intermittent right ear deafness and dizziness constituted symptoms rather than any specific diagnosed disorder of the Veteran's inner ear or neurologic system, and the etiology of the symptoms could not be stated without resort to mere speculation. In light of above, the Board concludes that the medical evidence of record reflects that, since his separation from service and for a period of at least six months, the Veteran, who meets the VA's definition of a Persian Gulf Veteran, experienced intermittent deafness of the right ear and episodes of dizziness of an unknown etiology which were symptoms rather than separate, diagnosable disabilities. Further, conceding that the Veteran is competent and credible to report deafness (complete loss of hearing acuity) and occasional dizziness, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2016. See 38 C.F.R. § 4.85, Table VII, and 38 C.F.R. § 4.87, Diagnostic Code 6204. As such, service connection for intermittent dizziness and deafness of the right ear as neurological signs and/or symptoms of an undiagnosed illness is warranted. 38 C.F.R. § 3.317. ORDER Entitlement to service connection for intermittent dizziness and deafness of the right ear as neurological signs and/or symptoms of an undiagnosed illness is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs