Citation Nr: 0813145 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-28 906A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sinusitis, claimed as secondary to service-connected hearing loss, tinnitus, and otitis media. 2. Entitlement to service connection for anxiety, claimed as secondary to service-connected hearing loss, tinnitus, and otitis media. 3. Entitlement to an initial compensable rating for otitis media, left. ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active military service from June 1980 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from three rating decisions by the San Juan, Puerto Rico Regional Office (RO) of the Department of Veterans Affairs (VA). First, a January 2002 decision granted the veteran's claims for service connection for chronic otitis media, left, and assigned a noncompensable rating, effective October 1, 2000. Second, an October 2004 decision denied entitlement to service connection for sinusitis, to include as secondary to the veteran's service-connected ear disabilities. Finally, a February 2005 decision denied the veteran's claim for service connection for anxiety, to include as secondary to the veteran's service-connected ear disabilities. In June 2006, the Board remanded to the RO the claims on appeal for further development. The RO completed all requested action and continued denial of the veteran's claims (as reflected in the September 2007 supplemental statement of the case (SSOC)) and returned the matters to the Board for further appellate consideration. FINDINGS OF FACT 1. Sinusitis has not been shown to have been incurred in or aggravated by service, nor secondary to a service-connected disability. 2. Anxiety disorder has not been shown to have been incurred in or aggravated by service, nor secondary to a service- connected disability. 3. From October 1, 2000, the effective date of the grant of service connection, to June 11, 2001, and since April 7, 2003, otitis media, left, has manifested with a dry ear canal, no suppuration, and no aural polyps. 4. From June 12, 2001, to April 6, 2003, otitis media, left, manifested with suppuration. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sinusitis, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007). 2. The criteria to establish service connection for anxiety disorder, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007). 3. The criteria for an initial compensable rating for otitis media, left, from October 1, 2000, to June 11, 2001, and since April 7, 2003, have not been met. 38 U.S.C.A. § 1155 (West Supp. 2007); 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Code 6200 (2007). 4. Affording the veteran the benefit of the doubt, the criteria for a 10 percent rating for otitis media, left, from June 12, 2001, to April 6, 2003, have been approximated. 38 U.S.C.A. § 1155 (West Supp. 2007); 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Code 6200 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in November 2004 and April 2005, after the original adjudication of the claims. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claims for service connection, secondary service connection, and a higher rating; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claims. A June 2006 letter advised the veteran of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the veteran received VCAA notice after the original adjudication of his claims, he is not shown to be prejudiced by the timing of VCAA-compliant notice, as the RO readjudicated his claims in a September 2007 SSOC. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that, at a minimum, adequate notice under the law requires that VA notify the claimant that, to substantiate a claim for an increased rating: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The November 2004 and April 2005 VCAA letters do not contain the level of specificity set forth in Vazquez-Flores. However, such procedural defect does not constitute prejudicial error in this case because (1) given the procedural history of the appeal with its attendant notice, a reasonable person would have been expected to be aware of what evidence would have substantiated the claim, and (2) the record suggests actual knowledge on the part of the veteran of what was needed to substantiate the claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The record includes statements from the veteran in the October 2003 substantive appeal, in which a description was made as to the effect of the service-connected otitis media, left, on his daily life. This statement indicates an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Vazquez-Flores, 22 Vet. App. at 48; see Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In addition, the June 2006 letter informed the veteran that a disability rating would be based in part on the impact of the veteran's condition and his symptoms on employment. Further, the letter stated that evidence that would be used to establish a disability rating included VA treatment records, Social Security determinations, statements from employers regarding job performance and lost time, and lay statements from others that have witnessed his condition. Hence, the showing of actual knowledge and notification to the veteran satisfies the first and fourth requirements of Vazquez-Flores. Finally, the January 2002 rating decision includes a discussion of the rating criteria used in the present case, and this criteria was set forth in further detail in the October 2003 SOC. After such notification in the rating decision and SOC, the RO readjudicated the veteran's claim in the September 2007 SSOC. The veteran was accordingly made well aware of the requirements for an increased rating pursuant to the applicable diagnostic criteria, and such action thus satisfies the second and third notification requirement of Vazquez-Flores. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records, VA outpatient treatment records, and VA examination reports are associated with the claims file. Regarding the claims for service connection, pursuant to the duty to assist, the veteran was afforded a VA medical examination. See Charles v. Principi, 16 Vet. App. 370 (2002) (observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on the [appellant's] claim," where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant] contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service, but does not contain sufficient medical evidence for the [VA] to make a decision on the claim). The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claims. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Merits of the Claims A. Service Connection The veteran contends that his sinusitis and anxiety disorder are related to his service-connected ear diseases. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claims, as the only competent medical evidence shows that the sinusitis and anxiety disorder are not related to his service-connected disabilities. Therefore, the appeal will be denied. The benefit of the doubt rule provides that the veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in his claims when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury . . . ." 38 C.F.R. § 3.310(a) (2007). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (en banc) (1995). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service- connected disability. Sinusitis The veteran's service medical records are devoid for any indication of complaints, treatment, or diagnosis of sinusitis. The June 2000 separation Report of Medical Examination shows that the veteran's sinuses were normal. Post-service, a January 2004 VA treatment record shows a diagnosis of sinusitis. Subsequent VA treatment records show diagnoses of right maxillary sinusitis and sinusitis. A February 2004 VA computed tomography (CT) of the brain revealed right maxillary sinusitis. A March 2004 VA magnetic resonance imaging (MRI) of the brain revealed sinus inflammatory changes. A June 2004 VA X-ray revealed bilateral maxillary and ethmoid sinus disease. Although the veteran has a current diagnosis of sinusitis, there is no competent medical evidence linking these diagnoses to any incident of military service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Because there is no competent evidence showing that the veteran's current sinusitis is related to his service, service connection for sinusitis as directly related to service is not warranted. Further, as the veteran has claimed that his sinusitis is related to his service-connected bilateral hearing loss, tinnitus, and otitis media, the Board will address the issue of secondary service connection. Libertine, supra. On October 2004 VA examination, the veteran stated that his sinus condition was due to his ear disease. After physical examination, the VA physician diagnosed the veteran with a normal nasal exam. The VA physician opined that even if the veteran's radiological findings indicated mucoperiosteal thickening of the maxillary antra and some ethmoids, there was no relation between the veteran's service-connected ear infection and his sinusitis. The VA physician further reasoned that sinusitis was not caused by ear infection and there was no direct anatomical relationship that could relate ear infection and sinusitis. He stated that only in the case of severe infections of the inner ear, which the veteran did not have, the possibility of a relationship would be considered, but this was not the case regarding the veteran. On March 2007 VA examination, the same October 2004 VA physician noted the nasal examination was normal. The VA physician again stated that there was no evidence of sinus disease, and if the veteran did have sinus disease, there was no anatomical or physiologic relationship between the sinuses and the veteran's ear disease. Although the record is not clear whether the veteran has a current diagnosis of sinusitis, even if the Board finds that the veteran has a current diagnosis of sinusitis, the only competent medical evidence addressing the issue of whether the veteran's sinusitis is caused or aggravated by his service-connected bilateral hearing loss, tinnitus, and otitis media weighs against his claim. Further, the veteran has not submitted any medical evidence supporting his assertions that his sinusitis is related to his service- connected disabilities. Moreover, although the veteran asserts that there is a nexus between his sinusitis and his service-connected disabilities, as a layperson, he is not competent to offer an opinion that requires specialized training, such as the diagnosis or etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, the only competent medical evidence weighs against the veteran's claim for service connection for sinusitis and there is no competent evidence showing the veteran's sinusitis is directly related to his service. Therefore, the preponderance of the evidence is against the claim, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert, supra. Anxiety Disorder The veteran's service medical records are devoid for any indication of complaints, treatment, or diagnosis of an anxiety disorder. The June 2000 separation Report of Medical Examination shows that the veteran's psychiatric condition was normal. Post-service, a November 2000 VA examination report shows that the veteran reported that he had palpitations, anxiety, hyperventilating, and difficulty in adjusting to the civilian life. After mental status examination, the diagnosis was anxiety disorder, not otherwise specified. Beginning in June 2001, VA treatment records show a diagnosis of anxiety disorder. Although the veteran has a current diagnosis of anxiety disorder, there is no competent medical evidence linking this diagnosis to any incident of military service. See 38 C.F.R. § 3.159(a). Because there is no competent evidence showing that the veteran's current anxiety disorder is related to his service, service connection for anxiety disorder as directly related to service is not warranted. Further, as the veteran has claimed that his anxiety disorder is related to his service-connected bilateral hearing loss, tinnitus, and otitis media, the Board will address the issue of secondary service connection. Libertine, supra. On September 2004 VA examination, the veteran was diagnosed with anxiety disorder, not otherwise specified. The examiner opined that based on the veteran's history, records, and evaluations, his anxiety disorder was not caused by, the result of, secondary to, or related to his service-connected tinnitus and bilateral hearing loss. On May 2007 VA examination, the veteran was diagnosed with anxiety disorder, not otherwise specified. The VA examiner opined that based on the veteran's history, records, and evaluations, his anxiety disorder was not caused by, the result of, secondary to, and not related to his service- connected tinnitus or bilateral hearing loss, not related to any facial nerve paralysis, and not related to any other service-connected conditions. The examiner reasoned that the veteran's anxiety disorder was a separate and independent diagnostic entity that was not related to any service- connected disability. Based on the above medical opinions, the only competent medical evidence addressing the issue of whether the veteran's anxiety disorder is caused or aggravated by his service-connected bilateral hearing loss, tinnitus, and otitis media weighs against his claim. Further, the veteran has not submitted any medical evidence supporting his assertions that his anxiety disorder is related to his service-connected disabilities. Moreover, although the veteran asserts that there is a nexus between his anxiety disorder and his service-connected disabilities, as a layperson, he is not competent to offer an opinion that requires specialized training, such as the diagnosis or etiology of a medical disorder. Espiritu, 2 Vet. App. at 494. Therefore, the only competent medical evidence weighs against the veteran's claim for service connection for anxiety disorder and there is no competent evidence showing the veteran's anxiety disorder is directly related to his service. Hence, the preponderance of the evidence is against the claim, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert, supra. B. Claim for Initial Higher Rating for Otitis Media, Left The veteran contends that his otitis media, left, is more severe than the current evaluation reflects. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the symptoms of otitis media, as applied to the applicable rating provisions, do not warrant a compensable rating from October 1, 2000, the effective date of the grant of service connection, to June 11, 2001, and since April 7, 2003, but meet the criteria for a 10 percent rating from June 12, 2001, to April 6, 2003. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran's otitis media, left, has been rated as noncompensable (0 percent) pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6200. This Code provides that a maximum evaluation of 10 percent is assignable for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps. 38 C.F.R. § 4.87, Diagnostic Code 6200. While Diagnostic Code 6200 also provides that hearing impairment and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, may be rated separately, the veteran is in receipt of service connection for tinnitus, bilateral hearing loss, and vertigo. It is not alleged nor has it been shown that the veteran should be service-connected for bone loss of skull. Facial nerve paralysis will be discussed in further detail in this decision. During the period beginning on the effective date of service connection, the veteran's otitis disorder did not manifest symptoms supportive of a 10 percent rating. The record shows that on November 2000 VA examination, there was no discharge and no active disease of the left tympanic membrane. A May 2001 VA treatment record shows that the veteran complained of chronic yellowish discharge from the left ear for two weeks. Examination revealed that the veteran's auditory canal appeared reddish and moist in the left ear and he had a perforated eardrum. While the mucosa was pink, no discharges were observed. Discharges and secretions were medically observed beginning in June 2002. A VA treatment record shows that the veteran had a perforated but clear tympanic membrane with scant green secretions at the floor of the canal. Similarly, a March 2002 VA treatment record shows that the veteran's tympanic membrane was perforated and was with "bubble." The tympanic membrane was clear and was not red. The diagnosis was status post left ear surgery still with secretions. A May 2002 VA treatment record shows that the veteran's left ear had a perforated tympanic membrane. While the veteran then was noted to have no suppuration, approximately one month later, a June 2002 VA treatment record indicates that the veteran's left ear tympanic membrane was perforated with yellow suppuration. In August 2002, the veteran's left ear was almost completely healed except at the area of the handle of the malleus. Beginning in April 2003, the medical evidence indicates that the disorder had improved, and that suppuration had ceased. An April 2003 VA treatment record shows that the veteran's left tympanic membrane was dry. The remaining VA treatment records indicate that the veteran's left ear canal was dry with no suppuration and no aural polyps. In August 2003, the veteran underwent a left tympanoplasty. On October 2003 VA examination, the veteran reported that he had no ear discharge after his August 2003 surgery. Examination revealed no discharge from the left ear, no suppuration and no aural polyps. A September 2004 VA treatment record shows that there was liquid in the left auditory canal, but it was clear with no erythema. The lack of suppuration and the absence of polyps consistent with a zero percent evaluation thereafter continued. On December 2004 VA examination, the veteran's tympanum was noted to have no perforation. There was no evidence of discharge, no active ear disease, no suppuration, and no aural polyps present. On March 2007 VA examination, there was no discharge, suppuration, infections of the middle or inner ear, and no polyps noted. Thus, the medical evidence shows that in June 2001, the veteran was noted to have scant green secretions in his ear canal. Subsequent to this June 12, 2001 VA treatment record and until the April 7, 2003 VA treatment record, the veteran was found to have secretions and yellow suppuration of the left tympanic membrane. Therefore, the Board finds that for the period June 12, 2001, to April 6, 2003, a 10 percent rating is warranted for the veteran's otitis media, left, as he is found to have suppuration during this time period. 38 C.F.R. § 4.87, Diagnostic Code 6200. However, from October 1, 2000, the effective date of the grant of service connection, to June 11, 2001, and from April 7, 2003, to the present, a compensable rating for otitis media, left, is not warranted, as there is no evidence of suppuration or aural polyps, which is required for a 10 percent rating. Id. Regarding whether the veteran is entitled to a separate rating for hearing impairment, labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, the veteran currently is service-connected for bilateral hearing loss, vertigo, and tinnitus. He has not claimed any bone loss of the skull, nor does the evidence suggest that he has this disability. Regarding any facial nerve paralysis, a January 2003 VA treatment record shows that the veteran complained of episodes of numbness on the left side of the face and neck. A February 2007 VA electromyography of the face revealed the veteran to have normal insertional activity. On May 2007 VA examination for the cranial nerves, the diagnosis was objective numbness of the left side of the face, not a facial paralysis. The examiner opined that as the veteran did not have facial paralysis, there was no facial paralysis that was the result of the veteran's service- connected chronic left otitis media. Based on the May 2007 VA examiner's opinion, the medical evidence does not support the finding of entitlement to a separate rating for facial paralysis as secondary to the veteran's otitis media, left. Further, the February 2007 VA electromyography results were normal. Therefore, a separate rating for facial paralysis is not warranted. The Board thus concludes that the veteran's otitis media, left, warrants a 10 percent rating from June 12, 2001, to April 6, 2003, but does not warrant a compensable rating from October 1, 2000, the effective date of the grant of service connection, to June 11, 2001, and since April 7, 2003. ORDER Service connection for sinusitis, claimed as secondary to service-connected hearing loss, tinnitus, and otitis media, is denied. Service connection for anxiety, claimed as secondary to service-connected hearing loss, tinnitus, and otitis media, is denied. An initial compensable rating for otitis media, left, from October 1, 2000, to June 11, 2001, and since April 7, 2003, is denied. A rating of 10 percent for otitis media, left, from June 12, 2001, to April 6, 2003, is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs