Citation Nr: 1750155 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 12-31 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for headaches, to include as due to undiagnosed Gulf War Syndrome. 3. Entitlement to service connection for fatigue, to include as due to undiagnosed Gulf War Syndrome. 4. Entitlement to service connection for diabetes. 5. Entitlement to service connection for undiagnosed Gulf War Syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1987 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied reopening the claim for bilateral hearing loss, and denied service connection for diabetes, fatigue, headaches, and Gulf War syndrome. The appeal was subsequently transferred to Montgomery, Alabama, which has jurisdiction. By way of procedural history, a June 1995 rating decision initially denied service connection for bilateral hearing loss without consideration of the Veteran's service treatment records (STRs). Subsequently, the STRs were reviewed and an August 1995 rating decision again denied service connection for bilateral hearing loss. The Veteran did not file a timely notice of disagreement and the August 1995 decision became final. In November 2008, the Veteran filed a claim to reopen the claim for bilateral hearing loss, and entitlement to service connection for headaches, diabetes and fatigue. In a separate November 2008 statement, the Veteran included a claim for undiagnosed Gulf War syndrome (and other issues not on currently before the Board). Following receipt of the October 2009 rating decision, the Veteran filed a timely notice of disagreement dated November 2009. The RO issued another rating decision in August 2010, in which it reopened the claims for hearing loss, diabetes, fatigue, headaches, and Gulf War syndrome, and the Veteran submitted an additional notice of disagreement dated November 2010. As the submission of the initial notice of disagreement was submitted within one year of the October 2009 rating decision, the October 2009 rating decision is on appeal. In an October 2012 substantive appeal form, the Veteran requested a hearing before a Veterans Law Judge; however, in a January 2017 written statement, he withdrew his hearing request. The issues of entitlement to service connection for diabetes, fatigue and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in August 1995, the RO denied service connection for bilateral hearing loss. 2. The evidence associated with the claims file since the August 1995 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim for bilateral hearing loss and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 4. Gulf War syndrome is not a disability in itself, and the signs and symptoms the Veteran has attributed to his Persian Gulf War service have been separately adjudicated. CONCLUSIONS OF LAW 1. The August 1995 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A § 7105 (c) (West 2014); 38 C.F.R. § 20.1103 (2016). 2. The criteria for reopening a previously denied claim for service connection for bilateral hearing loss have not been met. 38 U.S.C.A § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for service connection for Gulf War syndrome are not met. 38 U.S.C.A §§ 1110, 1117, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159 (b)(1). The notice requirement was met in this case by letter sent to the Veteran in December 2008, prior to the initial adjudication of the claim in October 2009. VA has also satisfied its duty to assist. This duty includes assisting in the obtaining of service treatment records, all potentially relevant pre-and post-service treatment records, and providing an examination, when necessary. 38 U.S.C. A § 5103A; 38 C.F.R. § 3.159 (c). Here, the claims file contains the Veteran's service treatment records, and all potentially relevant post-service medical records, both VA and private, which remain available. As discussed below, the issue of Gulf War syndrome is denied on a legal basis, for it not being a disability in and of itself; as it was separately certified, however, the Board addresses it as a separate issue. As to hearing loss, as the Board finds that new and material evidence has not been submitted, the duty to assist by obtaining an examination does not apply. See 38 C.F.R. § 3.159. In this case, however, the RO obtained a new VA examination; as discussed below, this examination does not represent new and material evidence as it continues to reflect that the Veteran does not have a hearing loss disability as defined by VA regulation. The Veteran has not indicated that he has any further evidence to submit to VA or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). New and Material Evidence Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156 (a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). 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. See 38 U.S.C.A § 5108; 38 C.F.R. § 3.156 (a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran's claim for service connection for bilateral hearing loss was denied in a June 1995 rating decision. The Board notes that STRs were not reviewed at the time. The RO found that the Veteran did not have a hearing loss disability. Subsequently, the STRs were reviewed and an August 1995 rating decision again denied service connection for bilateral hearing loss. At the time of the August 1995 rating decision, the evidence of record contained STRs, private treatment records, and an April 1994 VA audiological examination (the examination shows that the auditory threshold of 500 is 10 hertz, 1000 hertz is 5, 2000 hertz is 5, 3000 hertz is 10 and 4000 hertz is 5 in the left ear, with a speech discrimination score of 100 percent; and for the right ear, 500 is 15 hertz, 1000 hertz is 10, 2000 hertz is 5, 3000 hertz is 25 and 4000 hertz, with a speech discrimination score of 100 percent). The evidence received since the August 1995 rating decision consists of updated private and VA treatment records, a June 2009 Veteran's statement, and an April 2010 VA audiological examination, which continues to show that the Veteran does not have a hearing loss for VA purposes (the examination shows that the auditory threshold of 500 is 10 hertz, 1000 hertz is 10, 2000 hertz is 10, 3000 hertz is 20 and 4000 hertz is 35 in the left ear, with a speech discrimination score of 96 percent; and for the right ear, 500 is 10 hertz, 1000 hertz is 10, 2000 hertz is 5, 3000 hertz is 35 and 4000 hertz is 25, with a speech discrimination score of 96 percent). This evidence, although presented in a VA compensation examination, is cumulative and redundant of that previously of file in that it continues to reflect that there is not a hearing loss disability as defined by 38 C.F.R. § 3.385. Although the evidence received since the August 1995 rating decision (updated private and VA treatment records, and the additional VA audiological examination) may be considered new in the sense that it was not previously before agency decisionmakers, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating it. The evidence does not indicate that the Veteran's has hearing loss for VA purposes, and therefore he still does not have a current bilateral hearing loss disability. For these reasons, the Board finds that the evidence is not new and material and the claim and the claim to reopen must be denied. Service Connection for Gulf War Syndrome Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In this case, the Veteran served in Southwest Asia during the Persian Gulf War. Service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A § 1117 (West 2014) and 38 C.F.R. § 3.317 (2016). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in 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 (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C.A § 1117, 38 C.F.R. § 3.317 (2016). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A § 5107 (b). In a November 2008 statement, the Veteran indicated that he was submitting a claim for service connection for "Gulf War Syndrome." The Board notes that Gulf War syndrome is not a disability in and of itself. A November 2009 VA Gulf War guidelines examination shows that the Veteran does not have a diagnosis of Gulf War Syndrome as the Veteran's chronic fatigue is likely caused by hypogonadism and headaches are likely due to osteoarthritic changes of the cervical spine and stress. During the examination, the examiner addressed symptoms reportedly attributable to, in pertinent part, chronic fatigue syndrome and headaches. These issues are separately on appeal before the Board, and as discussed below, are remanded herein. Because the weight of the evidence shows no current "disability" of claimed Gulf War syndrome for VA compensation purposes, the Board finds that the preponderance of the evidence is against the appeal of this issue; therefore, the appeal for service connection for Gulf War syndrome is without legal merit and must be denied as a matter of law. See 38 U.S.C.A §§ 1117, 5107 38 C.F.R. §§ 3.102; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER As new and material evidence has not been received, the application to reopen the claim for service connection for bilateral hearing loss is denied. Service connection for Gulf War syndrome is denied. REMAND Initially, the Board notes that it does not appear that the RO has requested the Veteran's service personnel records through official sources in connection with the instant claims. Thus, service personnel records should be requested and obtained on remand. Remand is required to obtain an adequate medical opinion regarding the etiology of the Veteran's headaches and chronic fatigue, as the November 2009 VA opinion is inadequate. Additionally, a medical opinion regarding the etiology of the Veteran's diabetes is required as one has not been provided. The November 2009 VA Gulf War examination report provided an opinion against finding that the Veteran's headaches and chronic fatigue were symptoms of an undiagnosed illness; however, the examiner failed to provide an opinion regarding direct causation. As the Veteran has confirmed service in the Southwest Asia Theater of operations during the Gulf War and contends that his headaches, chronic fatigue and diabetes are causally related to his active service, to include exposure to environmental hazards, VA opinions are necessary prior to the Board's adjudication of the appeal. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service personnel records through official sources. 2. After completing directive (1), schedule the Veteran for a VA examination to ascertain whether the currently claimed headaches, chronic fatigue and diabetes are related to any incident of service, to include service in in the Southwest Asia Theater of operations during the Persian Gulf War. After examining the Veteran, and considering his pertinent medical history and lay statements regarding reported symptoms, the examiner should provide the following opinions: a) Is it as least as likely as not (50 percent probability or greater ) that a headache disability manifested during active service or is otherwise causally or etiologically related to his active service, to include any environmental exposure while serving in the Southwest Asia theater of operations? b) Is it as least as likely as not (50 percent probability or greater ) that a chronic fatigue disability manifested during active service or is otherwise causally or etiologically related to his active service, to include any environmental exposure while serving in the Southwest Asia theater of operations? c) Is it as least as likely as not (50 percent probability or greater) that diabetes manifested during active service or is otherwise causally or etiologically related to his active service, to include any environmental exposure while serving in the Southwest Asia theater of operations? The examiner should provide a detailed rationale for each opinion. If any of the requested opinions cannot be provided without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. 3. Thereafter, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs