Citation Nr: 18156575 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 18-23 716 DATE: December 10, 2018 ORDER Whether new and material evidence has been received to reopen a claim for tinnitus is granted. Whether new and material evidence has been received to reopen a claim for deviated septum is granted. Whether new and material evidence has been received to reopen a claim for barotrauma is granted. Whether new and material evidence has been received to reopen a claim for left ear hearing loss is granted. Whether new and material evidence has been received to reopen a claim for service connection for sinusitis is granted. Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for deviated septum is remanded. Entitlement to service connection for left ear barotrauma is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. In a February 2013 rating decision, the AOJ denied service connection for tinnitus; the Veteran did not appeal the decision. 2. The evidence received since the February 2013 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus, and raises a reasonable possibility of so substantiating the claim. 3. In a February 2013 rating decision, the AOJ denied service connection for a deviated septum; the Veteran did not appeal the decision. 4. The evidence received since the February 2013 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for deviated septum, and raises a reasonable possibility of so substantiating the claim. 5. In a February 2013 rating decision, the AOJ denied service connection for barotrauma of the left ear; the Veteran did not appeal the decision. 6. The evidence received since the February 2013 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for barotrauma, and raises a reasonable possibility of so substantiating the claim. 7. In a February 2013 rating decision, the AOJ denied service connection for left ear hearing loss; the Veteran did not appeal the decision. 8. The evidence received since the February 2013 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for left ear hearing loss, and raises a reasonable possibility of so substantiating the claim. 9. Resolving all doubt in the Veteran’s favor, the Veteran’s currently diagnosed fibromyalgia that is related to his military service. 10. The Veteran has not had chronic fatigue syndrome at any time since filing his claim for compensation. 11. The Veteran experienced acoustic trauma in service; the Veteran reported constant tinnitus following service, and the credible evidence is in approximate balance as to whether it may be reasonably associated with his in-service noise exposure. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for deviated septum. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for barotrauma. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 5. Resolving all doubt in the Veteran’s favor, the criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 6. Chronic fatigue syndrome was not incurred or aggravated in service. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2017). 7. Resolving doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1985 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Petition to Reopen Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). Service connection for a tinnitus, deviated septum, barotrauma of the left ear, sinusitis, and left ear hearing loss was denied in a February 2013 rating decision. The AOJ determined that there was no indication of current disabilities. Since the February 2013 rating decision, evidence added to the record includes treatment for tinnitus in July 2014, articles showing that a deviated septum can be self-diagnosed, article showing that a barotrauma can be self-diagnosed, a February 2018 diagnosis for chronic sinusitis, and treatment for left ear hearing loss in July 2014. As there is evidence suggesting current disabilities, the Board concludes that a previously identified defect has been cured, and that the claim for entitlement to service connection for tinnitus, deviated septum, barotrauma of the left ear, sinusitis and left ear hearing loss may be reopened. The reopened claim for tinnitus is addressed below. The reopened claims for deviated septum, barotrauma of the left ear, sinusitis and left ear hearing loss are addressed in the remand which follows. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for fibromyalgia Service connection may be established for a chronic disability manifested by certain signs or symptoms which 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, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a)(1) (2017); 71 FR No. 242, pp. 75669-75671 (December 18, 2006). Consideration of a Veteran’s claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a) (2015). The term “Persian Gulf Veteran” means a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d) (2018). The Veteran contends that his fibromyalgia should be presumptively service-connected based on his active service during the Gulf War. His service personnel records note that he performed flight engineer duties over northern Iraq. See personnel records. The Veteran received a Fibromyalgia DBQ in February 2015. The examiner noted that the Veteran’s disability pattern due to multiple joint arthralgia with normal x-rays, myalgia, fatigue with post exertion fatigue meets the criteria for a diagnosable, chronic multi-symptom illness with a partially explained etiology that was less likely than not caused by or related to Gulf War environmental exposure as current medical studies have established ans association between fibromyalgia and phasic alpha sleep activity. See February 2015 Compensation and Pension Examination Report. The examiner also noted that fibromyalgia could no longer co-exist with a second condition, if that second condition could explain the individuals pain. Therefore, examiner determined that multiple joint arthralgia’s for which the Veteran is already service-connected for are part and parcel of fibromyalgia. The Veteran submitted Fibromyalgia DBQ from his treatment nurse practitioner dated in December 2014. The examiner diagnosed the Veteran with fibromyalgia and chronic fatigue syndrome. The nurse practitioner also submitted a letter detailing the Veteran’s current diagnoses, which included fibromyalgia. After review of the foregoing evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of fibromyalgia and given the Veteran’s service in the Southwest Asia theater of operations during the applicable period, service connection for fibromyalgia on a presumptive basis is warranted. 2. Entitlement to service connection for chronic fatigue syndrome (CFS) Laws and regulations pertaining to multisymptom illnesses and service in Southwest Asia theater of operation are included above and will not be repeated here. The Veteran contends that his chronic fatigue syndrome (CFS) should be presumptively service-connected based on his active service during the Gulf War. His service personnel records note that he performed flight engineer duties over northern Iraq. See personnel records. The question becomes whether the Veteran has a diagnosis of CFS that was diagnosed not later than December 31, 2016. In February 2015, the Veteran submitted a CFS DBQ. The Veteran’s private nurse practitioner, T.C., signed the DBQ. T.C. diagnosed the Veteran with CFS and Fibromyalgia. VA received an undated letter from the Veteran’s private treating nurse practitioner, T.C., and a physician. Although the letter was not dated, it was received by VA in May 2016. The nurse practitioner explained that she had treated the Veteran since June 2014, and he was treated by her office since 2013. She listed the Veteran’s diagnoses that she found in his record and listed the diagnoses that he was treated for at her medical office. She noted no diagnosis of CFS. The Veteran received a CFS DBQ in February 2015. The examiner concluded that there was insufficient evidence to warrant or confirm a diagnosis for acute or chronic fatigue syndrome or its residuals. The examiner opined that the Veteran did not meet the diagnostic criteria as defined by the Centers for Disease Control and Prevention, Department of Defense or VA. The examiner noted that the Veteran’s symptomatology can be explained by the conceded diagnosis of Fibromyalgia. The examiner cited to a study that found that a diagnosis of CFS and Fibromyalgia were clinically indistinguishable as they have the same symptoms. VA records do not show treatment for CFS. The evidence shows contradictory findings of a diagnosis for CFS. The nurse practitioner noted a diagnosis of CFS in a February 2015 DBQ but did not include a diagnosis of CFS in a thorough list that encompassed all of the Veteran’s diagnoses. In addition, the VA examiner found insufficient evidence to warrant a diagnosis and noted that the symptoms were duplicative of symptoms for fibromyalgia. Entitlement to service connection for fibromyalgia is already being granted per this decision. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As to the specific issue in this case, the diagnosis of chronic fatigue syndrome, the question involved is medically complex, and accordingly the Board assigns greater weight to the VA examiners’ opinions than to the Veteran’s own lay opinion. The Veteran has not been shown to possess the training, credentials, or other expertise to render an opinion that is of comparable probative value to those of the VA examiners. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4. (Fed. Cir. 2007). As the Board finds no current diagnosis of CFS, other theories of entitlement, including direct service connection or secondary service connection, are also denied. For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for CFS, and the claim must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. A current diagnosis of recurrent tinnitus is shown in the record. See July 2014 Audiology treatment; see also July 2014 VA treatment record. The Veteran served in the United States Air Force. He reported that he was exposed to acoustic trauma from F-15 jet aircraft and 60 turbine generators. He reported no other employment outside of the 27 and a half years of military service. See January 2016 Veteran’s statement. The Veteran’s DD 214 confirms that he served as a flight engineer and an aerospace ground equipment journeyman during service. See DD 214; see also VA memorandum on Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus dated in September 2010 (noting highly probable noise exposure for flight engineers). Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane”). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Having reviewed the record pertaining to this claim, the Board has determined that service connection for tinnitus is warranted. A July 2014 VA treatment record noted the Veteran’s reports of constant ringing in his ears. The Veteran reported exposure to high levels of noise from aircrafts and generators. See July 2014 VA treatment record; see also January 2016 Veteran’s statement. The Veteran reported that his hearing loss and tinnitus are due to his military service. The Veteran has not received an examination during the period on appeal. The August 2012 Hearing Loss and Tinnitus Disability Benefits Questionnaire found no diagnosis for tinnitus. During the appeal period, the evidence shows that the Veteran has a current diagnosis of tinnitus as he has consistently reported tinnitus. The Veteran believes his tinnitus is due to the high levels of noise that he exposed to during service explaining that he had no other employment outside of his military service. The Board finds the Veteran’s statements to be highly probative. As noted, tinnitus is a condition which is capable of lay observation. See Charles. Therefore, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether tinnitus is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. REASONS FOR REMAND As noted above, the Board is reopening the claims for service connection for deviated septum, barotrauma of the left ear, left ear hearing loss, and sinusitis that were previously denied in a February 2013 decision. The Veteran and his attorney have submitted evidence showing current left ear hearing loss that is considered a disability under 38 C.F.R. § 3.385. See July 2014 Audiology Consultant treatment record. As the Veteran served as a flight engineer during service with highly probable noise exposure, the Board finds that this evidence of record triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c); see also VA memorandum (noting probable noise exposure) dated in September 2010. The Veteran’s attorney argues that barotrauma can be self-diagnosed. See Barotrauma article dated in October 2012. Veterans are competent to testify as to some matters. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran’s personnel records show that he participated in at least one aerial flight. The Veteran believes his barotrauma residuals are due to his military service. The Board finds that this evidence of record triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). The Veteran’s attorney argues that a deviated septum is capable of lay observation. Veterans are competent to testify as to some matters. See Deviated Septum article dated in August 2018; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran argues that his deviated septum is related to his military service. Service treatment records show that he injured his nose in June 1987. The Board finds that this triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). The Veteran and his attorney have submitted a current diagnosis of sinusitis. See February 2018 diagnosis. The Veteran believes his current sinusitis is related to his military service. Service treatment records show a diagnosis of chronic sinusitis in service. See January 1994 surgical record. The Board finds that this triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ear hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including highly probable noise exposure while working as a flight engineer. Note that the lack of documented treatment or diagnosis of hearing loss in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s military occupational specialty and lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed hearing loss. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of barotrauma of the left ear. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including participating in flight emergencies. See January 2016 statement. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a deviated septum. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including injury to his nose during service in June 1987. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current sinusitis (diagnosed at any time during the appeal period). The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the chronic sinusitis diagnosis made during service. See January 1994 surgical report. (Continued on the next page)   5. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel