Citation Nr: 1136838 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-04 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a neurologic disorder of the left side of the face (claimed as pain and numbness of the left side of the face and cheek). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a neurologic condition of the left side of the face and cheek area. The Veteran timely appealed that denial. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in November 2008; a transcript of that hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records are fire-related and unavailable for review. 2. The Veteran competently and credibly stated that he suffered a left ear injury in a sand storm in service and that such injury was treated throughout his period of service; he also competently and credibly stated that he has had left-sided facial pain, discomfort and an aching sensation since that incident in service. 3. The competent clinical evidence of record does not demonstrate any currently-diagnosed medical condition associated with the Veteran's claimed left-sided facial symptomatology. CONCLUSION OF LAW The criteria establishing service connection for a neurologic condition of the left side of his face (claimed as pain and numbness of the left side of the face and cheek) have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in October 2006 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a November 2008 hearing before the DRO. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2010). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2010). In order 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 competent 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 Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). On appeal, the Veteran asserts that he has pain and numbness in the left side of his face and cheek that is more intense with hot and cold weather. He stated that such symptoms began in service, at the time he developed an ear infection due to sand blowing into his ear during basic training. He further asserts that his symptoms have been chronic and continuous since that time. He indicated that he had to have his ear flushed out every other day during military service and that currently he has to flush out his ears every few days, to relieve his pain. In an unappealed June 2010 Board decision, a claim of service connection for left otitis media was denied. Accordingly, the Board will only address complaints of left-sided facial pain and numbness, or an associated neurologic claim at this time. Initially, the Board notes that the Veteran's service treatment records are not in the claims file and appear to be fire-related. He was notified of this back in an RO letter dated in November 2005. In cases where service medical records are unavailable, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's private and VA treatment records from February 1990 through August 2010 do not demonstrate any treatment for, complaints of or diagnosis of any neurologic condition of the left side of his face or cheek. His private treatment records reflect a history of left ear injury secondary to sand in the external auditory canal, with secondary infection, in 1945. Another private report indicated treatment for left ear otitis externa, which was recurrent since 1943. Again, the cause of injury was noted to be sand in the external auditory canal. Additionally, an August 2002 hospital discharge summary noted a history of left ear injury with left ear otitis externa and ultimate development of hearing loss. That report reflected complaints of an intermittent aching sensation on the left side of his face that the Veteran attributed to a wartime injury. He was diagnosed with "left-sided facial pain" at that time. The Veteran underwent a VA examination in June 2011. He again reported his in-service ear injury due to a sand storm during basic training. He reported pain and numbness in the front of his left ear and into his jaw area during the examination. He described the pain as sharp with heat, and that hot and cold weather would worsen his pain. He indicated that flushing his ears helped the discomfort and that he took over-the-counter pain medications to relieve the pain. He further asserted that such flushing and treatment for his left ear and facial pain occurred throughout service, though he could not recall the diagnosis he was given at that time. Following discharge from service, he has continued to have the facial pain and that he has had these symptoms since the sand storm in service. The Veteran noted that he currently has his ears checked every three to four months and has cerumen removed. At home he flushes out his ears. The Veteran reported during the examination that he has never been diagnosed with any particular injury to his ear by any private physician that he currently sees. On examination, the Veteran denied any problems with facial weakness, difficulty chewing, sensation, or closing his eyes. He reported the pain to be 5-6 out of 10 for 30 minutes to an hour before the medication that he takes effect. On examination, he was alert and awake, and cranial nerves II through XII were intact. Examination of the ears demonstrated occlusive cerumen in the right ear and mild to moderate cerumen in the left ear with normal tympanic membranes. The examiner diagnosed the Veteran with intermittent left pre-auricular facial discomfort likely related to cerumen build up. She noted that there was no evidence of a chronic left ear disability or injury characterized by pain and numbness to the left side of the face and cheek area related to service and noted that current treatment records are absent for any complaints of left facial pain. She further noted that the Veteran's cranial nerve examination was normal, including sensory and muscle innervations to the pre-auricular area of concern. She opined that, based on the history provided by the Veteran and resolution of symptoms from flushing, with worsening of symptomatology between cleanings that improves with the removal of cerumen, the symptoms are "more likely related to cerumen accumulation." In light of the foregoing evidence, the Board finds that service connection for a neurologic condition of the left side of the Veteran's face must be denied. In so finding, it is acknowledged that the Veteran has competently and credibly stated that an in-service incident involving a sand storm blowing sand into his ear during service caused some discomfort and facial pain. He further competently and credibly stated that he has had that symptomatology since discharge from service in December 1945, and that he has essentially self-medicated himself since that time. Thus, while the Veteran's service treatment records were lost in a fire and are not available for review, the Board finds that the Veteran has specified an in-service injury. However, the current treatment records since 1990 do not demonstrate any diagnosed medical disorder; though the Board notes that in April 2008 the Veteran complained of an aching sensation and pain from his left ear to his jaw area and was diagnosed with "left-sided facial pain" at that time. Also, the Veteran's VA examination noted that the Veteran had some pre-auricular area discomfort associated with cerumen accumulation, and the examiner specifically noted that the symptomatology described was more likely than not associated with cerumen accumulation. However, the cerumen build-up has not been attributed to any diagnosis and has not been identified as a chronic disability. While the Veteran is adamant that he has a left-sided facial condition that involves a neurologic component and includes symptoms such as pain, numbness and an aching sensation, the Board notes that pain and discomfort alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part, vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001). Moreover, the Veteran is not competent to self-diagnose any medical condition for which that symptomatology may be associated with. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Court in Jandreau did indicate that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." However, such conditions have not been satisfied here. The Board notes that the competent clinical evidence of record from 1990 onward does not contain any diagnosed medical condition on which a grant of service connection can be predicated in this case. Accordingly, the Board finds that service connection cannot be awarded in this case as there is no currently-diagnosed medical condition for the Veteran's claimed symptomatology. See 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a neurologic disorder of the left side of his face (claimed as pain and numbness of the left side of the face and cheek) is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs