Citation Nr: 21008045 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-16 341 DATE: February 11, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for motion sickness with loss of consciousness (claimed as loss of consciousness) is granted. Entitlement to service connection for syncope is granted. FINDINGS OF FACT 1. In an unappealed September 1995 rating decision, the RO denied a claim for entitlement to service connection for motion sickness with loss of consciousness (claimed as loss of consciousness). 2. Evidence received since the September 1995 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim for loss of consciousness. 3. The Veteran’s syncope had its onset during his active service. CONCLUSIONS OF LAW 1. The September 1995 rating decision, which denied a claim for entitlement to service connection for motion sickness with loss of consciousness (claimed as loss of consciousness), is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for loss of consciousness have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for syncope have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1978 to August 1994 and from November 2009 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. Additional VA treatment records were received after the most recent statement of the case in February 2017. However, in light of the favorable decisions below granting the full benefits sought on appeal, the Board finds no prejudice to the Veteran in proceeding with a decision at this time. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for motion sickness with loss of consciousness (claimed as loss of consciousness). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for motion sickness with loss of consciousness (claimed as loss of consciousness) was denied in a September 1995 rating decision on the basis that there was no disability for VA purposes. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the September 1995 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). While additional service treatment records (STRs) were added to the record in November 2011 and January 2012, as the records did not exist at the time of the September 1995 rating decision, 38 C.F.R. § 3.156(c) is inapplicable. In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim “based upon distinctly diagnosed diseases or injuries” from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). The matter presently on appeal concerns the same symptoms that were reported in connection with the previous claim for service connection for loss of consciousness. Thus, the claim presently on appeal is a continuation of the Veteran’s previous claim, and new and material evidence is required. At the time of the September 1995 rating decision, the pertinent evidence of record included STRs, military personnel records, and a June 1995 VA examination report. Since the most recent final denial in September 1995, VA treatment records, private treatment records, hearing testimony, and STRs were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. The VA treatment records and private treatment records show a current diagnosis of syncope. As this evidence relates to whether the Veteran has a current disability for VA purposes, an unestablished fact necessary to substantiate the claim, it is material. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. 2. Entitlement to service connection for syncope. The Veteran contends that his syncope is related to his active military service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations (Southwest Asia) during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). While the Veteran’s DD Form 214 shows that he received the Global War on Terrorism Service Medal and he contends that he served in Kuwait, the current evidence of record does not confirm that the Veteran served in Southwest Asia. Accordingly, at this time, the Board does not concede that the Veteran is a Persian Gulf veteran. Turning to the evidence of record, VA and private treatment records show a current diagnosis of syncope/vasovagal syncope. Accordingly, the first element of service connection has been established. To the extent that syncope is considered a symptom and not a disability for VA purposes, at the July 2020 hearing, the Veteran testified that his syncope prevented him from continuing his job. Thus, as the Veteran’s syncope results in functional impairment of earning capacity, the Board finds that even if it is considered a symptom, it rises to the level of a disability under Saunders v. Wilkie. 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020). The Veteran contends that his syncope began while he was on active duty and that he has continued to experience syncopal episodes annually since. See February 1995 Veterans Application for Compensation and Pension; April 2017 private treatment record. A review of the Veteran’s STRs show that in May 1987, the Veteran experienced a dizzy episode. He reported a history of feeling dizzy when working out vigorously. He reported that during the episode, he was guided to the ground by someone else. He denied a history of loss of consciousness. A dizzy episode without loss of consciousness, head trauma, and syncope was noted. An August 1991 STR shows that the Veteran experienced an episode of motion sickness with loss of consciousness. The treating provider noted that recent exacerbation of his motion sickness after several years of not flying led to vasovagal syncope and a head laceration. Vasovagal syncope secondary to motion sickness was noted. An April 1992 Report of Medical Examination noted a single episode of vasovagal syncope in October 1991 secondary to air sickness. At an August 1995 VA examination, the Veteran reported that his most recent syncopal episode occurred in December 1994 for two minutes. The examiner noted blackouts of uncertain etiology. A May 2016 VA treatment record shows that the Veteran reported experiencing syncopal episodes twice a year but that the frequency had increased. In June 2016, a provisional diagnosis of syncope was rendered. The treating physician noted that the Veteran has had many episodes of loss of consciousness suggestive of syncope for many years. A February 2017 VA treatment record notes a history of vasovagal syncope that occurs sporadically. An April 2017 private treatment record notes a long-standing history of syncope of unknown etiology. A subsequent April 2017 private treatment record notes that the Veteran “has vasovagal syncope without a doubt.” An August 2017 private treatment record shows that the Veteran reported a history of having multiple syncope events starting in the 1980’s while on active duty. A VA opinion has not yet been obtained that addresses whether the Veteran’s syncope is related to his active service. However, rather than remand for an opinion, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection is warranted. The Veteran has a current diagnosis of vasovagal syncope, and STRs show that the Veteran experienced and was treated for the same condition while in active service. He has competently and credibly reported that he has continued to experience episodes of syncope annually since the initial onset in service. Therefore, the Board will resolve all reasonable doubt in favor of the Veteran and grant service connection for the Veteran’s syncope.   Accordingly, the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.