Citation Nr: 1331689 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 11-01 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for a left knee disorder. 6. Whether new and material evidence has been received to reopen a claim for service connection for a respiratory condition, claimed as shortness of breath, to include as due to undiagnosed illness, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009, October 2010, and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In July 2009, the RO denied service connection for right and left knee disorders, a sleep disorder, shortness of breath, alcohol abuse, and a psychiatric disorder (claimed as depression, an anxiety disorder, a panic disorder, and memory loss, flashbacks, nightmares, and anger control). In February 2010, the Veteran submitted a notice of disagreement with all of the claims. He thereafter withdrew his notice of disagreement as to the alcohol abuse and shortness of breath claims in March 2010. A statement of the case was issued as to the remaining claims in November 2010. The Veteran submitted an Application for Compensation in December 2010 referring to a bilateral knee disorder and mental health conditions, which was accepted as a timely appeal as to those claims. In October 2010, the RO denied service connection for PTSD. In February 2011, the RO also denied service connection for hearing loss and tinnitus. The Veteran perfected an appeal as to these claims. A March 2012 videoconference hearing was held before the undersigned Veterans Law Judge of the Board, the transcript of which is of record. Pursuant to the Veteran's request during the hearing, the claims for service connection for right and left knee conditions are being withdrawn from appellate status. See 38 C.F.R. § 20.204 (2013). In light of the denial of a psychiatric disorder in general in July 2009 and subsequent denial of service connection for PTSD in October 2010 (both on appeal), the Board has characterized the claim for service connection for PTSD in more generalized terms of whether there is any acquired psychiatric disorder for which service connection may be granted. See e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that in light of the fact a claimant generally is not competent to provide a medical diagnosis, a claim for service connection for PTSD constituted a generalized claim for benefits based on a mental disorder where the evidence showed that the claimant did not have PTSD but suffered from a different mental disorder). The claim for service connection for tinnitus and reopened claim for service connection for a respiratory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On March 28, 2012, prior to the promulgation of a decision upon the claims for service connection for right and left knee disorders, the Board received notification from the Veteran that a withdrawal of these matters is requested. 2. The Veteran does not manifest a hearing loss recognized as disabling for VA purposes. 3. The Veteran has an acquired psychiatric disorder, including PTSD, which may be attributed to a verified in-service stressor. 4. Through a July 2009 rating decision, the RO denied the Veteran's original claim for service connection for shortness of breath. He did not perfect an appeal. 5. Since the July 2009 rating decision, additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claim for service connection for shortness of breath. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for service connection for right and left knee disorders by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met for service connection for an acquired psychiatric disorder, including PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013). 3. The July 2009 RO rating decision which denied the claim for service connection for shortness of breath became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 4. New and material evidence has been received to reopen the Veteran's previously denied claim for service connection for shortness of breath. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims for a Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at his hearing in March 2012, the Veteran has withdrawn specifically the claims appeal for service connection for right and left knee conditions, and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with regard to these matters, and they are dismissed. II. Claims for Consideration on the Merits A. VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2013). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. Regarding the Veteran's petition to reopen a claim for service connection for a respiratory disorder, the Board is granting the petition to reopen. Similarly, the Board is granting service connection for a psychiatric disorder including PTSD. Thus, in the implementation of the VCAA's duty to notify and assist provisions, any attendant error was harmless in its application to adjudication of these matters, and need not be further discussed. Meanwhile, as to service connection for hearing loss, through VCAA notice correspondence dated in December 2010 and January 2011, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA notice further explained how VA establishes disability rating and effective date elements of a claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA correspondence in this case preceded issuance of the rating decision on appeal, and thus met the standard for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran with his claim through obtaining service treatment records (STRs), and records of VA outpatient treatment. The Veteran has also underwent a VA Compensation and Pension examination to determine the present diagnosis and likely etiology of claimed hearing loss in February 2011. Meanwhile, in furtherance of his claim, the Veteran has provided several personal statements. There is no indication of any further relevant evidence or information that has not already been obtained. The Veteran also testified at a Board hearing in March 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ elicited testimony to support the Veteran's claim, and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. B. Service Connection for Hearing Loss Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 using the Maryland CNC Test are less than 94 percent. Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Veteran alleges hearing loss due to in-service noise exposure primarily from having participated in live fire training exercises that positioned him 15-20 feet from tanks to ensure proper communication. He states further that he began to notice some difficulty in hearing following service discharge. On the February 2011 VA examination for audiological evaluation, it was indicated on review of the Veteran's claims file, his enlistment physical from 1999 showed normal hearing in both ears from 500 to 6000 Hz. The Veteran's separation physical from 2002 showed normal hearing overall, but a significant threshold shift at 6 Hz in both ears. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 15 LEFT 15 15 10 15 25 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The VA examiner at the conclusion of the examination report indicated the following: "Although the Veteran does not have a ratable hearing loss, his hearing has gotten worse more than 10 dB from his entrance to his exit physical at least at one of the ratable frequencies. According to the literature one can expect threshold change to vary from test to test by as much as 10 dB. Therefore, for a threshold shift to be considered a significant change it must change more than 10 dB. Since this Veteran's hearing has gotten worse more than 10 dB it is likely as not the threshold shift was from military noise exposure." The Board is constrained to deny the instant claim for service connection for hearing loss. The findings pursuant to the February 2011 VA examination simply do not portray a hearing loss disability as that condition is recognized for VA disability compensation purposes. As indicated, a hearing loss disability exists under one of three conditions: when any of the frequencies 500, 1000, 2000, 3000, 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 using the Maryland CNC Test are less than 94 percent. See again, 38 C.F.R. § 3.385. Based on the aforementioned audiogram on VA examination in February 2011, none of these prerequisites are met. Thus, the Board must conclude that there is no competent evidence of a current hearing loss disorder. Under VA law, the first criterion to establish service connection is competent evidence of the current disability claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). Absent compelling evidence of a present hearing loss disability, as defined under VA law and regulations, the instant claim cannot be substantiated. The Board is well aware that the VA examiner ostensibly identified a causal connection between the Veteran's "threshold shift" on his separation audiogram, and alleged noise exposure from military service. To the extent this might substantiate a causal nexus to service, the fact remains that the full syndrome of a hearing loss disability (within VA regulatory parameters) has not been diagnosed on the examination, or anywhere elsewhere on record. A current disability is indispensable to establish service connection, and without it, the determination of the issue of etiology of the claimed condition is essentially a moot point. Nor for that matter, can the Board rely on the Veteran's self-diagnosis of hearing loss, inasmuch as that condition must be confirmed by reference to the governing legal standard under 38 C.F.R. § 3.385. Accordingly, service connection for hearing loss is denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C. Service Connection for an acquired psychiatric disorder, including PTSD The specific regulatory criteria for establishing service connection for PTSD are: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the former version of applicable law, if the veteran's stressor was unrelated to participation in combat, then his lay testimony, in and of itself, was categorically insufficient to establish the occurrence of the alleged stressor. Instead, the record must have contained credible supporting information from an independent source that corroborated his testimony or statements, such as service records, or even competent lay testimony from a third-party. See Cohen, 10 Vet. App. at 146-47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). Apart from the above provisions, however, effective July 13, 2010 VA revised the regulation governing adjudication of claims for service connection for PTSD. See 75 Fed. Reg. 39,843 (later codified at 38 C.F.R. § 3.304(f)). The updated regulation essentially removes the requirement that there be objective corroboration of a claimed in-service stressor under certain circumstances. Under the revised standard, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The Veteran has set forth various stressors in furtherance of his claim, one incident which reportedly transpired in October 2001 while stationed in Kuwait. The Veteran indicates that he was driving a Humvee along with an individual who was superior in rank, when there was a camel herder on the road who had placed his camel in front of the vehicle and would not move. The Veteran then exited the vehicle and attempted to convince this civilian to move from the road, and when he was unsuccessful after five minutes he returned to the Humvee and informed the other occupant of the vehicle. This individual then got out of the vehicle, unstrapped his weapon and shot the camel herder killing him. The Veteran was asked what he saw, and responded "nothing." Another claimed stressor is that around this same time period, the Iraqi military launched a missile and it landed 3 to 5 miles from the Veteran's location. He did not know at time of launching whether it contained chemical or biological weapons, and he was riding in a Humvee when he learned of the attack over the radio. The Veteran along with the rest of his unit received instruction to start battle planning and proceeded to the border of Iraq in the event that this turned out to be an attack. The Veteran underwent an August 2011 VA Compensation and Pension examination, upon which the examiner gave the following assessment: "It is at least as likely as not the Veteran exhibits a diagnosis of PTSD (DSM-IV criteria) that is related to hostile enemy or terrorist activity. If the Regional Office accepts the stressor of an officer or commander killing a civilian camel herder (this is not documented), then that meets the A criteria [of a sufficient stressor]. The A criteria is not met for a SCUD hitting a few miles away and he having to don his MOP gear. There was no actual threatened death or serious threat to the physical integrity of self." However, a VA hospitalization report dated from December 2010 to January 2011 provides a diagnosis of PTSD based upon the Veteran's history of military combat trauma. The Veteran has also been diagnosed as having a depressive disorder, and an October 2009 private hospitalization report indicates that he has emotional problems related to his military experiences. Reviewing the foregoing in its entirety, and with due implementation of VA's responsibility to resolve reasonable doubt in the claimant's favor on a material issue, the Board finds that service connection for an acquired psychiatric disorder, including PTSD, is warranted. D. Petition to Reopen Service Connection for a Respiratory Disorder A July 2009 RO rating decision originally denied a claim for service connection for shortness of breath, citing the fact that this problem was not documented anywhere throughout service treatment records, or within the medical evidence post-service. The stated basis for denial was that the evidence did not "indicate a current relationship or nexus between your claimed shortness of breath and military service." This suggests that the claimed condition did not have a causal relationship back to an incident of military service. Despite this statement, however, the Board construes the actual basis for denial as lack of the claimed disability, given that "shortness of breath" had not been diagnosed at any point, either during or since military service. The Veteran filed a timely Notice of Disagreement (NOD) with that decision in February 2010; however, he withdrew his NOD in March 2010. Hence, the July 2009 rating decision became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 determining 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). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). There have been several additional items of evidence associated with the Veteran's claims file since the last prior denial in this case, to consist of extensive VA outpatient treatment records, reports of VA Compensation and Pension examinations for various claimed conditions, and lay statements provided from the Veteran himself. None of these recently added sources of medical information yield any information whatsoever regarding a possible respiratory disorder -- either insofar as current symptomatology, or medical history of the same. This having been said, however, there is additional newly received evidence comprising a September 2010 decision of the Army Board for Correction of Military Records which updated the Veteran's From DD-214 (Report of Separation from Service), in part, to indicate service in Kuwait from August 9, 2001 to December 8, 2001. Consequently, it is now established as a matter of record that the Veteran had service in Southwest Asia during the Persian Gulf War era. This essential finding necessarily implicates the provisions of the Persian Gulf War undiagnosed illness statute, which provides a secondary theory of recovery for an undiagnosed respiratory condition claimed as "shortness of breath" in accordance with 38 U.S.C.A. § 1117. Under 38 U.S.C.A. § 1117, VA disability compensation is available to a Persian Gulf veteran with a qualifying chronic disability that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or, to a degree of 10 percent or more not later than December 31, 2016, and by history, physical, examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(2). The term "qualifying chronic disability" refers to a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower) (emphasis added), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.371(b). For purposes of section 3.317, a "medically unexplained chronic multi symptom 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). In addition, 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. § 3.371(a)(4). There is further available presumptive service connection for various infectious diseases associated with service in the Persian Gulf under certain circumstances. 38 C.F.R. § 3.317(c). The addition of the administrative decision updating the Veteran's Form DD-214 to reflect his service in the Persian Gulf region, considered along with the provisions of the undiagnosed illness statute, creates an entirely new basis of recovery sufficient to reopen the claim under review. Consequently, there has a showing of "new and material" evidence in the form of evidence that is deemed sufficient to reopen the claim presented before the Board. A decision upon the Veteran's reopened claim is deferred pending completion of the evidentiary development directed below. ORDER The claim for service connection for a right knee disorder is dismissed. The claim for service connection for a left knee disorder is dismissed. Service connection for hearing loss is denied. Service connection for an acquired psychiatric disorder, including PTSD, is granted. The claim for service connection for a respiratory condition, including as an undiagnosed illness under 38 C.F.R. § 3.317, is reopened; to this extent, the claim is granted. REMAND As to the reopened claim for service connection for a respiratory disorder, the RO/AMC should have the opportunity to review this reopened claim in the first instance, including under the revised theory of entitlement under 38 C.F.R. § 3.317. Moreover, a VA Compensation and Pension examination should be arranged to determine whether the Veteran has a current respiratory disorder that is directly associated with his military service, or otherwise falls within the ambit of the undiagnosed illness statute. The Veteran should also be provided an appropriate VCAA letter, and his current VA treatment records should be obtained. With regard to the claim for service connection for tinnitus, the Veteran's February 2011 VA examination by an audiologist resulted in the opinion that: "Given the onset of tinnitus symptoms three years after military service, it is not as likely as not that the current tinnitus was from military noise exposure. It is more likely the tinnitus was from post-service noise exposure." Yet through hearing testimony the Veteran maintains there was a misunderstanding of his own reported history during the exam, in that the actual onset of tinnitus was during service and further, he had no significant post-service noise exposure. Another VA examination is necessary to ensure that the Veteran's own asserted medical history is properly considered. Accordingly, these claims are REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act of 2000 (VCAA) letter pertaining to service connection for a respiratory disorder, claimed as shortness of breath, to include as due to an undiagnosed illness. See 38 U.S.C.A. § 1117. 2. Make arrangements to obtain the Veteran's complete VA treatment records, to include from the VA Eastern Kansas Healthcare System (HCS) and the Omaha-VA Nebraska-Western Iowa HCS, dated since June 2011. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any medically undiagnosed symptoms, including shortness of breath. The examiner must review the claims file and state that the claims file was reviewed in the report. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. Specifically, the VA examiner's opinion should address the following: (a) State whether the Veteran's complaints of shortness of breath are attributable to a known clinical diagnosis(es), OR whether those reported problems represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service. (b) If any of the above symptoms are determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service treatment for an upper respiratory infection with complaints of shortness of breath in September 2000, allergic rhinitis in April 2001, and an upper respiratory infection in November 2001. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for a VA audiological examination. The entire claims file and a copy of this remand must be made available to the examiner, who is asked to review the records and to conduct an appropriate examination including all necessary studies and tests, if indicated. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, to include noise exposure. In providing this opinion, the examiner should specifically consider the Veteran's allegations regarding onset of tinnitus contemporaneous with military service in 2002, as well as lack of post-service noise exposure (as indicated at Hearing Transcript, pages 3-7). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinion requested, it must be returned to the providing examiner for corrective action. 38 C.F.R. § 4.2. 6. Finally, after undertaking any other development deemed appropriate, re-adjudicate the claims on appeal. If the benefits sought are not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs