Citation Nr: 0809647 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-17 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a thyroid disability. 4. Entitlement to service connection for a vision disability. 5. Entitlement to service connection for chronic paronychia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran served on active duty from September 1989 to February 1993. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2006. This matter was originally on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The Board notes that a claim for tinnitus is raised in the record. Specifically, the veteran underwent a VA audio examination in April 2007 in which the examiner, Dr. S.C.H., diagnosed tinnitus and related it to military noise exposure. Therefore, this matter is referred to the RO for appropriate action. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not have a respiratory disability that is related to active service. 2. The veteran does not have a thyroid disability that is related to active service. 3. The veteran does not have a vision disability that is related to active service. 4. The veteran does not have chronic paronychia that is related to active service. CONCLUSIONS OF LAW 1. A respiratory disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. A thyroid disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 3. A vision disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 4. Chronic paronychia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Pursuant to the Board's December 2006 Remand, the Appeals Management Center (AMC) scheduled the veteran for VA medical examinations, readjudicated the veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's December 2006 Remand. Stegall v. West, 11 Vet. App. 268 (1998). II. Veterans Claims Assistance Act of 2000 VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Letters dated in February 2003 and January 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The January 2007 letter told him to provide any relevant evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). That letter also advised the veteran of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the January 2007 letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the veteran in October 2007. The veteran's service medical records have been obtained. The Board notes that the veteran has not identified any VA medical treatment records or private medical records that he wished VA to obtain on his behalf. Thus, there is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The veteran was also accorded a VA examinations in April 2007. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). III. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). a. Respiratory The veteran's service medical records indicate that he was diagnosed with early sinusitis in December 1990 and an upper respiratory infection in January (the year is not indicated). There is no post-service medical evidence of record other than VA examinations conducted in April 2007. After physical examination of the veteran, the examiner stated, "At this time there is insufficient clinical evidence to diagnose any current or pulmonary in this veteran, specifically, he does not have asbestosis, exposure is questionable and speculative. Thus, the medical evidence fails to show that the veteran currently suffers from a respiratory disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a respiratory disability exists and that it caused by or aggravated by the veteran's military service, the criteria for establishing service connection for a respiratory disability have not been established. 38 C.F.R. § 3.303. b. Thyroid The veteran's service medical records indicate that he was overweight, had difficulty losing weight, and underwent thyroid tests for hypothyroidism. There is no post-service medical evidence of record other than VA examinations conducted in April 2007. At the VA examination, the veteran reportedly stated that he was not sure why this issue/condition was claimed, he had never been diagnosed or treated for thyroid disease. After physical examination of the veteran and review of the claims file, the examiner stated, "At this time there is insufficient clinical evidence to diagnose any thyroid disease in this veteran." An April 2007 addendum to the VA examination report noted that the veteran was never diagnosed or treated for thyroid disease in the service. An August 2007 addendum to the VA examination report clarified that on review of the systems, the veteran did not have any signs or symptoms of thyroid disease and lab testing (TSH) was normal. Thus, the medical evidence fails to show that the veteran currently suffers from a thyroid disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a thyroid disability exists and that it caused by or aggravated by the veteran's military service, the criteria for establishing service connection for a thyroid disability have not been established. 38 C.F.R. § 3.303. c. Vision For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The veteran's service records indicate that he was treated for a left corneal abrasion in January 1982. There is no post-service medical evidence of record other than VA examinations conducted in April 2007. At the VA examination, the veteran reported no ocular complaints and specifically denied any double vision. After examination of the veteran, the examiner stated that the veteran had no ocular pathology but did have early signs of presbyopia, a normal aging development. The examiner noted that there was no evidence of permanent ocular injury from his corneal abrasion dating back to 1992. However, as noted above, for VA purposes, in the absence of superimposed disease or injury, service connection may not be allowed for presbyopia. 38 C.F.R. §§ 3.303(c), 4.9. Thus, the medical evidence fails to show that the veteran currently suffers from a vision disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a vision disability exists and that it caused by or aggravated by the veteran's military service, the criteria for establishing service connection for a vision disability have not been established. 38 C.F.R. § 3.303. d. Paronychia The veteran's service records indicate that he was treated for paronychia of bilateral multiple fingers in October 1989. There is no post-service medical evidence of record other than VA examinations conducted in April 2007. After physical examination of the veteran and review of the claims file, the examiner stated, "At this time I find insufficient clinical evidence to diagnose current [] chronic paronchia of the middle and ring fingers of the left hand. Paronychia is an acute infection which resolves with treatment, is not usually a chronic condition but can be recurrent due to predisposing factors as listed below. More accurately, he currently has dryness and cracking of the nail beds of ALL fingers of BOTH hands currently related to current occupation working as a generator mechanic with exposure to fuel, oil, pain and frequent chronic hand washing and also nail biting. In any case, I would not expect to find any current/chronic condition related to possible PAST exposure to chemical contact prior to 1993, as he has not had exposure to those chemicals in 14 years." The examiner included an online reference to paronychia which noted that predisposing factors include overzealous manicuring, nail biting, diabetes mellitus, and occupations in which the hands are frequently immersed in water, that paronchia may be either acute or chronic, and that chronic paronychia is an eczematous process. Thus, the medical evidence fails to show that the veteran currently suffers from chronic paronychia. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that chronic paronychia exists and that it caused by or aggravated by the veteran's military service, the criteria for establishing service connection for paronychia have not been established. 38 C.F.R. § 3.303. e. Conclusion As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. 5107(b) (2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a chronic respiratory disability, to include as due to asbestos exposure, is denied. Entitlement to service connection for a thyroid disability is denied. Entitlement to service connection for a vision disability is denied. Entitlement to service connection for chronic paronychia is denied. REMAND For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. At the April 2007 VA audio examination, the veteran's speech recognition scores were 92 percent in the right ear and 84 percent in the left ear. The VA examiner noted that the speech recognition scores were excelling in the right and good in the left. The examiner also stated, "Hearing is within normal limits, th[e]refore hearing loss is not due to military noise exposure." However, as noted above, because the veteran's speech recognition scores were less than 94 percent, he is considered to have impaired hearing for VA purposes. Thus, the examiner's opinion is flawed. It is, therefore, the Board's opinion that a second medical opinion in conjunction with the review of the entire record is warranted to determine whether or not the veteran's current hearing impairment is related to his military service. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The April 2007 examination report (with the complete claims folder) should be returned to the examiner who conducted the exam. If that individual is unavailable, the records can be forwarded to a similarly situated audiologist, or someone qualified to render an opinion on the etiology of the veteran's impaired hearing. The examiner should be notified of 38 C.F.R. § 3.385 and asked to render an opinion as to whether it is at least as likely as not that the veteran's current hearing impairment is related to the veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. After ensuring that any actions needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 Supp. 2007). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs