Citation Nr: 0814540 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-21 398A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for chronic bilateral hearing loss disability. 2. Entitlement to service connection for chronic tinnitus. 3. Entitlement to service connection for a chronic temporomandibular joint disorder. 4. Entitlement to service connection for a chronic dental disorder. 5. Entitlement to service connection for a chronic respiratory disorder. 6. Entitlement to an increased disability evaluation for the veteran's chronic bilateral maxillary sinusitis, currently evaluated as 30 percent disabling. 7. Entitlement to an effective date prior to November 20, 2001, for the award of a 30 percent disability evaluation for the veteran's chronic bilateral maxillary sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from December 1967 to December 1970. The veteran served in the Republic of Vietnam and was awarded the Combat Infantry Badge. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Chicago, Illinois, Regional Office (RO) which determined that new and material evidence had not been received to reopen the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD) and denied an effective date prior to November 20, 2001, for the award of a 30 percent disability evaluation for the veteran's chronic bilateral maxillary sinusitis. In December 2004, the veteran submitted a notice of disagreement (NOD). In April 2005, the RO denied service connection for chronic bilateral hearing loss disability, chronic tinnitus, a chronic temporomandibular joint (TMJ) disorder, a chronic dental disorder, and a chronic respiratory disorder. In July 2005, the RO issued a statement of the case (SOC) to the veteran and his accredited representative which addressed the issues of whether new and material evidence had been received to reopen the veteran's claim of entitlement to service connection for PTSD and an earlier effective date for the award of a 30 percent evaluation for his bilateral maxillary sinusitis. In July 2005, the veteran submitted a substantive appeal from the July 2004 rating decision. In October 2005, the veteran was afforded a hearing before a Department of Veterans Affairs (VA) hearing officer. The hearing transcript can be reasonable construed as a NOD with the denial of service connection for chronic bilateral hearing loss disability, chronic tinnitus, a chronic TMJ disorder, a chronic dental disorder, and a chronic respiratory disorder. In April 2006, the RO, in pertinent part, denied an increased evaluation for the veteran's chronic bilateral maxillary sinusitis. In May 2006, the veteran submitted a NOD with the denial of an increased evaluation for his chronic bilateral maxillary sinusitis. In July 2007, the RO, in pertinent part, granted service connection for PTSD; assigned a 100 percent schedular evaluation for that disability; and effectuated the award as of June 21, 2006. In October 2007, the RO issued a SOC to the veteran and his accredited representative which addressed the issues of service connection for chronic bilateral hearing loss disability, chronic tinnitus, a chronic TMJ disorder, a chronic dental disorder, and a chronic respiratory disorder. In October 2007, the veteran submitted an Appeal to the Board (VA Form 9) from the April 2005 rating decision. The issues of the veteran's entitlement to service connection for a chronic TMJ disorder, a chronic dental disorder, and a chronic respiratory disorder and an increased evaluation for his bilateral maxillary sinusitis are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. Service connection is currently in effect for PTSD, chronic bilateral maxillary sinusitis, right maxilla fracture residuals with septal deviation, and left abdominal and chest shell fragment wound scar residuals. 2. Chronic bilateral hearing loss disability was not objectively manifested during active service or for many years thereafter. The veteran's chronic bilateral hearing loss disability has not been shown to have originated during active service. 3. The veteran's chronic bilateral hearing loss disability has not been shown to be etiologically related to his service-connected disabilities. 4. Chronic tinnitus was not manifested during active service or at the most recent VA examination for compensation purposes of record. 5. In May 2002, the RO increased the evaluation for the veteran's bilateral maxillary sinusitis from 10 to 30 percent and effectuated the award as of November 20, 2001. The veteran was informed in writing of the award and his appellate rights in May 2002. He did not submit a NOD with the decision 6. In March 2004, the veteran submitted a claim for an earlier effective date for the award of a 30 percent evaluation for his chronic bilateral maxillary sinusitis. CONCLUSIONS OF LAW 1. Chronic bilateral hearing loss disability was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2007). 2. Chronic bilateral hearing loss disability was not proximately due to or the result of the veteran's service-connected disabilities. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2007). 3. Chronic tinnitus was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2007). 4. Chronic tinnitus was not proximately due to or the result of the veteran's service-connected disabilities. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2007). 5. The veteran's claim for an effective date prior to November 20, 2001, for the award of a 30 percent evaluation for his bilateral maxillary sinusitis fails to advance an allegation of fact or law upon which relief may be granted. 38 U.S.C.A. § 7105 (d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. In reviewing the veteran's claims for service connection for chronic bilateral hearing loss disability and chronic tinnitus, the Board observes that the RO issued VCAA notices to the veteran in January 2005, February 2006, March 2006, and August 2006 which informed the veteran of the evidence generally needed to support a claim of entitlement to service connection and the assignment of an evaluation and effective date of an initial award of service connection; what actions he needed to undertake; and how the VA would assist him in developing his claims. Such notice effectively informed him of the need to submit any relevant evidence in his possession. The January 2005 VCAA notice was issued prior to April 2005 rating decision from which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran has been afforded multiple VA examinations for compensation purposes. The examination reports are of record. The veteran was afforded a hearing before a VA hearing officer. The hearing transcript is of record. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In addressing the issue of an earlier effective date for the award of a 30 percent evaluation for the veteran's chronic bilateral maxillary sinusitis, the Board observes that the statutory and regulatory provisions pertaining to the VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case, the facts are not in dispute. Resolution of the veteran's appeal is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. Therefore, because no reasonable possibility exists that would aid in substantiating the veteran's claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). II. Service Connection A. Chronic Bilateral Hearing Loss Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The Court has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where a veteran served continuously for ninety days or more during a period of war and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2007). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for PTSD, chronic bilateral maxillary sinusitis, right maxilla fracture residuals with septal deviation, and left abdominal and chest shell fragment wound scar residuals. The veteran's service personnel records indicate that he served with the Army in the Republic of Vietnam. He was awarded the Combat Infantry Badge. The veteran's service medical records do not refer to bilateral hearing loss disability. The documentation does reflect that the veteran sustained a right maxilla fracture when he fell from a raft while in the Republic of Vietnam. He was also wounded in a grenade explosion. In the veteran's December 2004 claim for service connection, the accredited representative advanced that service connection was warranted for bilateral hearing loss disability as the claimed disorder was precipitated by the veteran's combat experiences in the Republic of Vietnam or, in the alternative, secondary to his service-connected right maxilla fracture residuals. At the October 2005 hearing before a VA hearing officer, the veteran testified that he had experienced impaired hearing ever since serving in the Republic of Vietnam. At a March 2006 VA examination for compensation purposes, the veteran complained of hearing loss. He presented a history of having served as a Green Beret in the Republic of Vietnam. While attempting to dismantle a grenade during active service, the grenade exploded near him and rendered him unable to hear for several days. On audiological evaluation, the veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 35 40 LEFT 25 30 20 25 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. The veteran was diagnosed with bilateral sensorineural hearing loss disability. The VA examiner commented that: Given the mildness of the responses including responses within normal limits in the higher frequencies and the excellent word recognition ability at approximately average conversational speech level, it is unlikely that this hearing loss is service-connected. This is very average hearing loss for someone the veteran's age. The Board has reviewed the probative evidence of record including the veteran's testimony and written statements on appeal. Chronic bilateral hearing loss disability was first clinically manifested in March 2006, some 36 years after service separation. No competent medical professional has attributed the veteran's chronic bilateral hearing loss disability to his period of wartime service. The VA examiner at the March 2006 VA examination for compensation purposes expressly stated that the veteran's chronic bilateral hearing loss disability was not likely related to active service and represented "very average hearing loss for someone the veteran's age." The veteran asserts that he sustained chronic bilateral hearing loss disability as the result of his combat experiences or, in the alternative, secondary to his service-connected disabilities. Given his combat-related commendations, the Board finds the veteran's statements as to his alleged inservice combat-related trauma to be consistent with the circumstances, conditions, and hardships of his service during the Vietnam War. The provisions of 38 U.S.C.A. § 1154(b) (West 2002) are therefore for application. However, the statute does not eliminate the need for medical nexus evidence. It merely reduces the evidentiary burden on combat veterans as to the submission of evidence of incurrence or aggravation of an injury or disease in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Libertine v. Brown, 9 Vet.App. 521, 523-24 (1996). The veteran's contentions as to the etiology of his chronic bilateral hearing loss disability are supported solely by the accredited representative's written statements and his own testimony and written statements. The Court has held that a lay witness is generally not capable of offering evidence involving medical knowledge such as the causation of a particular condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The lay testimony and written statements are thus insufficient to establish an etiological relationship between the claimed disorder and the veteran's wartime service. Therefore, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for chronic bilateral hearing loss disability. B. Chronic Tinnitus The veteran's service medical records do not refer to chronic tinnitus. In the veteran's December 2004 claim for service connection, the accredited representative advanced that service connection was warranted for tinnitus as the claimed disorder was precipitated by the veteran's combat experiences in the Republic of Vietnam or, in the alternative, secondary to his service-connected right maxilla fracture residuals. At the October 2005 hearing on appeal, the veteran testified that he experienced ringing in his ears. At the March 2006 VA examination for compensation purposes, the veteran complained of tinnitus which occurred "perhaps every other day." He reported that he had initially experienced tinnitus during active service. The examiner commented that "his tinnitus occurs less often than to be considered pathologic and therefore is not service-connected." The clinical documentation of record does not reflect that the veteran has been diagnosed with chronic tinnitus. His tinnitus was deemed to occur "less often than to be considered pathologic." In the absence of evidence of current chronic disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). If, for sake of argument, the veteran's tinnitus is considered to represent a chronic disability, the Board finds that no competent medical professional has attributed such a disability to his period of wartime service. The VA examiner at the March 2006 VA examination for compensation purposes expressly stated that the veteran's tinnitus was not etiologically related to active service. Given the veteran's combat-related commendations, the Board finds the veteran's statements as to his alleged combat-related trauma to be consistent with the circumstances, conditions, and hardships of his service during the Vietnam War. The provisions of 38 U.S.C.A. § 1154(b) (West 2002) are therefore for application. The veteran's contentions as to the etiology of his claimed chronic tinnitus are supported solely by the accredited representative's written statements and his own testimony and written statements. Such lay evidence is insufficient to establish an etiological relationship between the claimed disorder and the veteran's wartime service. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for chronic tinnitus. III. Earlier Effective Date In May 2002, the RO increased the evaluation for the veteran's chronic bilateral maxillary sinusitis from 10 to 30 percent and effectuated the award as of November 20, 2001. The veteran was informed in writing of the award and his appellate rights in May 2002. He did not submit a NOD with the decision In March 2004, the veteran submitted a claim for an earlier effective date for the award of a 30 percent evaluation for his chronic bilateral maxillary sinusitis. The Court has held that there is no such claim as a "claim for an earlier effective date." Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006). As the veteran's request may not be reasonably construed as either an application to reopen a prior final claim or a claim of clear and unmistakable error in such a final claim, the Board finds no allegation of fact or law upon which relief may be granted. Accordingly, the veteran's claim must be dismissed. 38 U.S.C.A. § 7105 (d)(5) (West 2002). ORDER Service connection for chronic bilateral hearing loss disability is denied. Service connection for chronic tinnitus is denied. The issue of entitlement to an effective date prior to November 20, 2001, for the award of a 30 percent evaluation for the veteran's chronic bilateral maxillary sinusitis is dismissed. REMAND In reviewing the report of a February 2002 VA examination for compensation purposes, the Board observes that the veteran was noted to exhibit TMJ popping and clicking and a dull ache in his upper teeth caused by his service-connected maxillary sinusitis. At the March 2006 VA examination for compensation purposes, the veteran complained of jaw popping and limitation of motion; very sensitive teeth; and difficulty breathing. On examination, the veteran exhibited pain when opening his jaw more than 35 millimeters and wheezes throughout both lungs. The examiner commented that: There is documentation that this patient was injured while he was in the military in Vietnam. He appears to be in pain from the residuals of his injuries, and I agree with his claim. No specific TMJ, dental, or respiratory disorders were diagnosed. It is unclear whether the reported TMJ, dental, and respiratory symptoms represent manifestation of a chronic disability or disabilities. The VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The veteran has submitted a timely NOD with the denial of an increased evaluation for his chronic bilateral maxillary sinusitis. A SOC which addresses the veteran's NOD has not been issued to the veteran and his accredited representative. The Court has directed that where a veteran has submitted a timely NOD with an adverse decision and the VA has not subsequently issued a SOC addressing the issue, the Board should remand the issue for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, this case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2006); and the Court's holdings in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) are fully met, to include notice which encompasses consideration of claims based upon secondary service connection under 38 C.F.R. § 3.310 (2007). 2. Contact the veteran and request that he provide information as to all treatment of his claimed chronic TMJ, dental, and respiratory disorders including the names and addresses of all health care providers. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the record. 3. Then schedule the veteran for a VA examination for compensation purposes in order to determine the nature and etiology of his claimed chronic TMJ, dental, and respiratory disorders. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner or examiners should advance opinions as to: a. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic TMJ disorder had its onset during active service; is etiologically related to the veteran's active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. b. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic dental disorder had its onset during active service; is etiologically related to the veteran's active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. c. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic respiratory disorder had its onset during active service; is etiologically related to the veteran's active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. Send the claims folder to the examiner or examiners for review of pertinent documents therein. The examination report should reflect that such a review was conducted. 4. Then issue a SOC to the veteran and his accredited representative which addresses the issue of an increased evaluation for the veteran's chronic bilateral maxillary sinusitis. The veteran and his accredited representative should be given the appropriate opportunity to respond to the SOC. The veteran is advised that he must complete his appeal of these issues by filing a timely substantive appeal following the issuance of the SOC. 5. Then readjudicate the veteran's entitlement to service connection for a chronic TMJ disorder, a chronic dental disorder, and a chronic respiratory disorder with express consideration of the provisions of 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. § 3.310(a) (2007); and the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995). If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the SOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs