Citation Nr: 21027966 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-44 894 DATE: May 7, 2021 ORDER The petition to reopen the previously denied claim for service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a gynecological disability, to include as a qualifying chronic disability, is remanded. Entitlement to service connection for dizziness and/or lightheadedness, to include as secondary to service-connected hypertension or headaches, and/or as a qualifying chronic disability, is remanded. FINDING OF FACT An unappealed April 2010 rating decision found there was no new and material evidence to reopen a claim of entitlement to service connection for a bilateral hearing loss disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The April 2010 rating decisions is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1998 to December 2002, with service in Kuwait. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. At the hearing, and in a written statement that same month, the Veteran requested to revoke her power of attorney. Thus, the Veteran proceeded, in the hearing and this appeal, pro semeaning for herself. Whether new and material evidence was submitted to reopen a claim for service connection for a bilateral hearing loss disability. The Board concludes that the April 2010 rating decision denying the petition to reopen the claim for service connection for a bilateral hearing loss disability is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. § §§ 3.102, 3.156(a), 20.1103 (2020). A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A December 2002 rating decision denied service connection for bilateral hearing loss because the evidence of record did not show complaints, treatment, diagnosis, or objective findings of hearing loss during service. In a January 2003 letter, VA notified the Veteran of the decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. As such, the December 2002 rating decision was final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A January 2010 rating decision denied the Veteran's petition to reopen a claim for service connection for a bilateral hearing loss disability because the evidence submitted was not new and material. A subsequent rating decision, dated in April 2010, continued the denial because the evidence of record did not show a nexus of hearing loss to service. VA notified the Veteran of the decision in an April 2010 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. As such, the April 2010 rating decision was final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence associated with the claims file since the prior final disallowance includes lay evidence that may cure a prior evidentiary defect. In this regard, at the 2021 Board hearing, the Veteran testified that a medical practitioner told her that her hearing loss was related to service. She also asserted that her tinnitus goes with her hearing loss. This information was not previously before adjudicators, and it relates to an unestablished fact necessary to reopen the claim nexus to service. Therefore, the Board concludes that new and material evidence has been submitted. Accordingly, the petition to reopen is granted. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran asserts that her hearing loss and tinnitus began during service and have existed since that time. In her August 2017 substantive appeal, the Veteran asserted that her hearing loss and tinnitus began during her deployment to Kuwait. At the February 2021 Board hearing, the Veteran stated she first noticed symptoms of hearing loss and tinnitus during service, while stationed at Fort Campbell. The Board finds that remand is warranted to attempt to obtain VA and private treatment records and obtain VA examinations and opinions. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). At the February 2021 Board hearing, the Veteran stated that that she sought treatment for hearing loss problems right after service discharge in 2002 at the Atlanta or Gainesville VA medical facilities. Although there are a few VA treatment records associated with the claims file that are dated in 2003, it is not clear what dates of treatment were requested. Further, the 2003 records are from Jacksonville, Florida and Salisbury, North Carolina, but not Atlanta or Gainesville. Accordingly, remand is necessary to attempt to obtain VA treatment records. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(2); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016).The Veteran is reminded that VA's duty to assist is not a one-way street, but rather he is expected cooperate in the development of his claim, which includes completing requested forms. See Wood v. Derwinski, 1 Vet. App. 406 (1991). VA's duty to assist also includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, private medical records indicate a diagnosis of right ear hearing loss. The Veteran has reported symptoms of left ear hearing loss and tinnitus. Although the Veteran's December 1997 service entrance examination noted normal hearing, she reported working in a factory without earplugs and being rejected from enlisting in the Army in 1994. In an undated Employee Safety and Health Record in the Veteran's STRs, noise was listed as a hazard associated with her current job, tasks, or work areas. It was noted that she was issued ear plugs and headphones. No service discharge examination is of record. At the February 2021 Board hearing, the Veteran asserted noise exposure during deployment to Kuwait and symptoms of hearing loss and tinnitus during service. In an August 2005 private medical record, less than three years after service discharge, the Veteran reported decreased right ear hearing acuity. The impression was otitis media. March 2006 private records note diagnoses of right ear hearing loss and left ear hearing within normal limits. A May 2008 private record diagnosed eustachian tube dysfunction. Because there is evidence of currently diagnosed disabilities or recurrent symptoms thereof, in-service noise exposure, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. Finally, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, to include making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In a September 2012 VA treatment record, it was noted that the Veteran had recently competed a hearing test in Jacksonville, Florida at a non-VA medical facility. No such hearing test is associated with the claims file. Accordingly, remand is necessary to attempt to obtain these records. 3. Entitlement to a gynecological disability, including irregular cycles, infertility, to include as a qualifying chronic disability, is remanded. At the 2021 Board hearing, the Veteran asserted that she has a gynecological disability, to include irregular menses and infertility, due to cryotherapy while on active duty. The Board finds that remand is warranted to obtain an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, a June 2017 VA examination reflects diagnoses for irregular menses and menometrorrhagia and the opinion that the diagnoses were not related to Gulf War exposures, as such is not supported by medical literature. The opinion is inadequate. First, it does not address whether the conditions found are related to any other event during active duty, to include cryotherapy in July 2000. The Veteran's STRs contain multiple references to gynecological treatment, to include colposcopy, infertility classes, irregular periods, Additionally, there are other potential diagnoses in VA and private treatment records. For example, polycystic ovary syndrome (PCOS) was noted in a March 2010 VA record and infertility was noted in 2015 records. A 2008 private medical record noted PCOS. Second, it relies on the absence of support in literature without discussing any specific facts vis-à-vis this Veteran. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (an opinion is inadequate when based solely on general articles without a meaningful discussion of the facts pertaining to a veteran's condition or individual circumstances); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (noting that an excerpt from a generic medical text that doesn't apply medical principles regarding causation or etiology to the facts of the individual veteran's case generally won't provide sufficient evidence, standing alone, to serve as the basis for an award of service connection). 4. Entitlement to service connection for dizziness and/or lightheadedness, to include as secondary to service-connected hypertension or headaches, and/or as qualifying chronic disability, is remanded. At the February 2021 Board hearing, the Veteran clarified that her claimed dizziness and lightheadedness is due to her service-connected hypertension and medications and is not a vestibular disorder. She asserted that her dizziness began during service. The Board concludes that remand is warranted for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Here, the Veteran has reported dizziness and lightheadedness during and since service. STRs indicate reports of dizziness and light headedness after a motor vehicle accident in June 1999. August 2005 private records note dizziness and lightheadedness. An August 2020 VA hypertension examination notes that uncontrolled hypertension "could be a contributing fact to patient history of... dizziness." At the February 2021 Board hearing, the Veteran stated that she began to have dizziness during service and that it is now related to hypertension and medication taken for that service-connected disability. Additionally, in an October 2013 VA record, the Veteran reported dizziness due to migraine coming on. In a November 2013 VA record, the Veteran reported headaches and dizziness after taking blood pressure medications. VA medical records dated in April 2014 note headaches with dizziness. In an October 2016 VA record, she reported headaches associated with dizziness. In a November 2018 VA record, she reported she took a blood pressure medication that caused dizziness. Because there is competent evidence of recurrent symptoms, in-service symptoms, and an indication that the current disability may be associated with a service-connected disability, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from 2002 to 2008 from the Jacksonville, Florida, Salisbury, North Carolina, Atlanta, Georgia, and Gainesville, Florida facilities. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms pertaining to hearing disorder, gynecological disorder, dizziness/lightheadedness, hypertension, and headaches, to include the provider who conducted a hearing test in August or September 2012 in Jacksonville, Florida. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for hearing loss and tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed hearing loss and tinnitus. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's right ear hearing loss, left ear hearing loss, if any, and tinnitus, at least as likely as not (1) had onset in service, (2) had onset within one year of service discharge, or (2) are otherwise related to an in-service injury, event, or disease. Consider whether in-service symptoms described by the Veteran at least as likely as not represent the onset of hearing loss and tinnitus in service and indicate whether such symptoms are more likely than not due to other causesexplain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 4. Schedule the Veteran for a VA examination for a gynecological disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with a gynecological disability. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Direct Service Connection First, are there gynecological disabilities? The examiner must address the following potential disabilities: PCOS; infertility; menometrorrhagia; and irregular menses. Second, for each diagnosed disability, is it at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service cryotherapy. Consider whether in-service symptoms described by the Veteran and documented in service treatment records at least as likely as not represent the onset of a gynecological disability in service and indicate whether such symptoms are more likely than not due to other causesexplain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. Persian Gulf Third, regarding whether a disability is related to service in the Persian Gulf, (a) identify if there are objective indications of a disability. Note: "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the Veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? Note: If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? Note: The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. 5. Schedule the Veteran for a VA examination for dizziness and lightheadedness. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed disability. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Direct Service Connection First, is there a dizziness or lightheadedness disability? Second, for each diagnosed disability, is it at least as likely as not that it (1) had its onset in service, or (2) is otherwise related to an in-service event, injury, or disease, to include an in-service motor vehicle accident or other symptoms. Consider whether in-service symptoms described by the Veteran, at least as likely as not represent the onset in service and indicate whether such symptoms are more likely than not due to other causesexplain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. Secondary Service Connection Third, for each diagnosed disability, is it at least as likely as not (1) proximately due to service-connected hypertension or medications therefor, or (2) aggravated beyond its natural progression by service-connected hypertension or medications therefor. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Fourth, for each diagnosed disability, is it at least as likely as not (1) proximately due to service-connected headaches, or (2) aggravated beyond its natural progression by service-connected headaches. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Persian Gulf Fifth, regarding whether a disability is related to service in the Persian Gulf, (a) identify if there are objective indications of a disability. Note: "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the Veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? Note: If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? Note: The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. 6. Ensure that the medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.