Citation Nr: 18149161 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-34 797 DATE: November 8, 2018 ORDER New and material evidence having been received, the issue of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the issue of entitlement to service connection for tinnitus is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for disability manifesting in memory loss, sleep problems, and night sweats, to include as due to environmental exposures in the Southwest Asia theater of operations during the Persian Gulf War is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected asthma is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected chronic recurring low back strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability is remanded. Eligibility for a special home adaptation grant is remanded. Eligibility for assistance in acquiring specially adapted housing is remanded. FINDINGS OF FACT 1. In a September 2007 rating decision, the Regional Office (RO) denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus; neither a Notice of Disagreement (NOD) nor new and material evidence was received by VA within the expiration of the one-year period following the September 2007 rating decision. 2. Evidence associated with the claims file since the September 2007 denial is new, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims for service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The September 2007 rating decision denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received; the issue of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received; the issue of entitlement to service connection for tinnitus is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Navy from August 1989 to June 1999. This included service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2006, June 2007, and October 2013 rating decisions by a Department of Veteran Affairs (VA) Regional Office (RO). The December 2006 rating decision denied the Veteran’s claims for increased disability ratings for service-connected chronic recurring low back strain and asthma. The Veteran submitted a Notice of Disagreement (NOD) in January 2007. The RO issued a Statement of the Case (SOC) in August 2007, and the Veteran submitted a statement in September 2007 qualifying as a substantive appeal. The June 2007 rating decision denied the Veteran’s claim for service connection for headaches, to include as due to an undiagnosed illness. The Veteran submitted a NOD in July 2007 and the RO issued a SOC addressing the issue in August 2007. The Veteran submitted a statement in September 2007 objecting to the denial which qualifies as a substantive appeal. The October 2013 rating decision continued a previous denial of service connection for bilateral hearing loss and tinnitus, denied service connection for memory loss, sleep problems, and night sweats due to Gulf War syndrome, and found that eligibility for specially adapted housing or a special home adaptation grant had not been established. The Veteran submitted a NOD in November 2013 and the RO issued a SOC in June 2016. The Veteran perfected his appeals by submitted a VA Form 9 in July 2016. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for total disability rating based on individual unemployability due to service connected disabilities (TDIU) is part of a claim for a higher rating when such claim is raised by the record or is asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability if the TDIU is based at least in part on functional impairment from the disability on appeal. The Veteran has asserted that his service-connected low back condition and asthma were limiting and eventually stopped him from being able to work. The issue of entitlement to a TDIU has therefore been raised in connection with the claims for increased ratings for chronic recurring low back strain and asthma here on appeal, and it has been added to the above list of issues before the Board. New and Material Evidence The appeals concerning entitlement to service connection for bilateral hearing loss and tinnitus come before the Board from an October 2013 rating decision which found that new and material evidence had been received sufficient to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus. While the Agency of Original Jurisdiction reopened and denied the appeal on the merits, the Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO, and has done so, below. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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 interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a September 2007 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not submit a NOD and new and material evidence was not received by VA within the expiration of the one-year period following the September 2007 rating decision. Therefore, the September 2007 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The September 2007 denials of service connection were based on findings that the evidence did not show audiometric findings meeting the 38 C.F.R. §3.385 criteria for a hearing loss disability during the appeal period or during service and that there was no documentation of tinnitus either in the service treatment records or in the VA treatment records. Since that time, the Veteran submitted a statement in May 2012 indicating that he failed a hearing test for his left ear and reported at the October 2012 VA audio examination that his wife says he cannot hear and his children practically have to yell for him to hear. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. The credibility of the evidence is also presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Therefore, it is found to be new and material, and reopening the issue of entitlement to service connection for bilateral hearing loss is warranted. The October 2012 VA examiner’s opinion regarding tinnitus included reasoning linking tinnitus to hearing loss. Therefore, previously-mentioned evidence is also found to be new and material with respect to the claim for service connection for tinnitus, and the issue should also be reopened. REASONS FOR REMAND The record indicates that there remain outstanding VA treatment records relevant to the Veteran’s claims. The most recent VA treatment record in the claims file dates from August 2011. Notably, the June 2016 SOC evidence list includes Gainesville VA Medical Center (VAMC) treatment records for the period from February 2000 through February 2015. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Remand is found necessary to ensure all outstanding relevant VA treatment records are associated with the claims file. As the Board is remanding these claims for further development, the RO should contact the Veteran and give him an opportunity to submit updated relevant records of private treatment and/or provide the RO with sufficient information and authorizations to allow VA to request these private treatment records on his behalf. 1. Entitlement to service connection for bilateral hearing loss. The Veteran was provided with a VA audiological examination in October 2012, where the examiner was unable to obtain reliable audiometric results. Her opinion partially relied upon a February 2012 VA treatment record which she indicated showed normal hearing bilaterally. As this treatment record is not in the claims file, the Board is unable to ascertain the accuracy of the VA examiner’s statement. 2. Entitlement to service connection for tinnitus. Because a decision on the remanded issue of entitlement to service connection for bilateral hearing loss could significantly impact a decision on the issue of entitlement to service connection for tinnitus, the issues are inextricably intertwined. A remand of both claims is therefore required. 3. Entitlement to service connection for disability manifesting in memory loss, sleep problems, and night sweats, and headaches, to include as related to environmental exposures during his deployment in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran asserts that he suffers from a number of symptoms due to his Gulf War service, to include sleep problems such as waking with cold sweats, poor memory, and intense headaches. The Veteran was provided with a VA Gulf War general medical examination in September 2013. The examiner’s opinion, in total, read as follows: “There are no undiagnosed illnesses. There is no objective evidence on history or physical exam of chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome. There are no conditions presumptive of Gulf War Environmental Hazards.” The examination report contains no mention of the Veteran’s reported memory problems, and the opinion provided is conclusory and devoid of any supportive rationale. Therefore, the examination report is found inadequate for adjudicatory purposes, and remand is needed to obtain an adequate examination and opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). 4. Entitlement to service connection for headaches. Because a decision on the remanded issue of entitlement to service connection for disability manifesting in memory loss, sleep problems, and night sweats, and headaches, to include as related to environmental exposures during deployment in Southwest Asia could significantly impact a decision on the issue of entitlement to service connection for headaches/migraine headaches, the issues are inextricably intertwined. A remand of both claims is needed. 5. Entitlement to a disability rating in excess of 30 percent for service-connected asthma. The Veteran was most recently provided with a VA examination concerning the severity of his asthma in April 2007. Since that time, the Veteran has reported that his asthma has increased in severity such that he needs to make upgrades to his house and car to help with his breathing. Given this indication of worsening symptoms, as well as the passage of more than 10 years since the most recent examination, the Veteran should be provided with an additional VA examination to determine the current severity and manifestations of the Veteran’s service-connected asthma. 6. Entitlement to a disability rating in excess of 10 percent for service-connected chronic recurring low back strain. The Veteran was most recently provided with a VA examination concerning his low back in April 2007. Since that time, the Veteran has reported that he lost his job because of his back pain. Given this indication of worsening symptoms, as well as the passage of more than 10 years since the most recent examination, the Veteran should be provided with an additional VA examination to determine the current severity and manifestations of his service-connected low back strain. The examiner should also be asked to opine as to whether the Veteran’s other diagnosed back disabilities are at least as likely as not related to service or are related to his service-connected chronic recurring low back strain. 7. Entitlement to a TDIU. Because a decision on the remanded issues of entitlement to increased disability ratings for service-connected asthma and chronic recurring low back strain could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is therefore also needed. 8. Eligibility for a special home adaptation grant is remanded. Because a decision on the remanded issues of entitlement to an increased disability rating for service connected asthma and entitlement to a TDIU could significantly impact a decision on the issue of eligibility for a special home adaptation grant, the issues are inextricably intertwined. A remand of the claim for eligibility for a special home adaptation grant is also needed. 9. Eligibility for assistance in acquiring specially adapted housing. Because a decision on the remanded issues of entitlement to an increased disability rating for service-connected low back strain and entitlement to a TDIU could significantly impact a decision on the issue of eligibility for assistance in acquiring specially adapted housing, the issues are inextricably intertwined. A remand of the claim for eligibility for assistance in acquiring specially adapted housing is therefore needed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2011 to present, as well as any earlier outstanding VA treatment records, and associate them with the claims file. 2. Ask the Veteran to submit or complete a new or updated VA Form 21-4142 for any relevant updated and/or outstanding private treatment records (i.e., those not presently associated with the claims file). Thereafter, make two requests for the identified and authorized records unless it is clear after the first request that a second request would be futile. 3. After associating all responsive records with the claims file, schedule the Veteran for an appropriate VA examination or examinations to determine the nature and etiology of his symptoms of memory problems, sleep difficulties including awakening with night sweats, and headaches, to include their potential relationship to environmental exposures during his Gulf War service. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether each claimed symptom is attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology or undiagnosed illness, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is at least as likely as not related to any presumed environmental exposures experienced by the Veteran during his service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated (made worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, identify what facts and information, whether found in the record or outside the record, support your opinion, and explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. 4. After associating all responsive records from Remand Directives 1 & 2 with the claims file, schedule the Veteran for an appropriate pulmonary disorders examination to determine the current severity and manifestations of his service-connected asthma. The electronic claims file must be made available to an appropriate examiner, and the examiner must indicate that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any testing that is deemed necessary for an accurate assessment must be conducted. The examiner must administer a complete PFT study and indicate which test result most accurately reflects the level of disability resulting from the service-connected condition. The examiner should also address the type and frequency of medications used to treat the Veteran’s asthma, as well as the frequency with which he visits physicians for required care of exacerbations and/or experiences asthma attacks with episodes of respiratory failure. The examiner should comment on the functional impact of the Veteran’s service-connected asthma on his activities of daily living to include his ability to perform occupational activities (regardless of whether he is employed at present). To the extent possible, provide an opinion as to the resulting limitations on both physical and sedentary occupational tasks. 5. After associating all responsive records from Parts 1 & 2 with the claims file, schedule the Veteran for an examination to ascertain the current severity and manifestations of his service-connected chronic recurring low back strain. The examiner is first asked to provide a diagnosis for any additional co-existing low back disabilities. For any other low back diagnosis, please provide an opinion as to whether it is at least as likely as not that the disability: (1) is a progression of the Veteran’s service-connected low back strain; (2) is caused by the Veteran’s service-connected chronic recurring strain; (3) is aggravated beyond its natural progression by the service-connected chronic recurring low back strain; and/or (4) arose during or is otherwise etiologically related to the Veteran’s active military service. If the examiner answers all of the above in the negative, is it possible to distinguish manifestations and impairment from the separate low back disabilities on a more likely than not basis? The examiner should state an opinion as to whether the Veteran has any neurological abnormalities present, including but not limited to radiculopathy, and indicate whether it is at least as likely as not that any such neurological abnormality is associated with the Veteran’s service-connected low back disability, or any other low back disability found by the examiner to be at least as likely as not related to the Veteran’s service-connected chronic recurring low back strain or to his military service. All appropriate testing of the severity of any such neurological abnormality should be conducted. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected low back disability alone and discuss their effect on his occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Thereafter, review the requested medical opinions to ensure full compliance and responsiveness with the remand instructions. 7. After completing all the above, conduct any further development deemed necessary in light of the expanded record and readjudicate the issues remaining on appeal. If any benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel