Citation Nr: 1300367 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-16 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of a left cheekbone fracture. 4. Entitlement to service connection for deviated nasal septum. 5. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to January 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, residuals of a left cheekbone fracture, a deviated nasal septum, and chronic sinusitis. In August 2011, the Board remanded the claims for additional development. In June 2011, the Veteran was afforded a videoconference hearing before the undersigned, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have hearing loss, tinnitus, residuals of a left cheekbone fracture, a deviated nasal septum, or chronic sinusitis, that was caused by or otherwise related to his service. CONCLUSION OF LAW Bilateral hearing loss, tinnitus, residuals of a left cheekbone fracture, a deviated nasal septum, and chronic sinusitis, were not incurred as a result of active military service, nor may in-service occurrence of sensorineural hearing loss be presumed. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran claims entitlement to service connection for hearing loss, tinnitus, residuals of a left cheekbone fracture, a deviated nasal septum, and chronic sinusitis. In March 2009, the Veteran filed his claims. In June 2009, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). When a medical professional determines that a current condition is related to an inservice event, then it necessarily follows that the current condition was incurred during service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (if a medical relationship exists between current hearing loss and inservice acoustical trauma, it follows that an injury was incurred during service); Hensley v. Brown, 5 Vet. App. 155 (1993) (notwithstanding that hearing loss was not noted upon separation, a medial relationship between current hearing loss and noise exposure during service demonstrates that the veteran incurred an injury during service). A. Hearing Loss and Tinnitus The Veteran's oral testimony presented before the Board at a June 2011 videoconference hearing shows that the Veteran testified that his service duties required him to attend the debriefings of pilots returning from flight missions. To facilitate this task, his office was located adjacent to the flightline, where he was regularly exposed to the noise of aircraft engines. He also testified that his duties included having to stand guard over the aircraft on the flightline, further exposing him to aircraft engine noise from planes taxiing, taking off, and landing, without hearing protection. He testified that within one year following his discharge from active duty in January 1958, he first noticed that he experienced tinnitus symptoms and diminished hearing acuity while straining to listen to classroom lectures shortly after entering college in September 1958. He reported that very early on, at around this time, he sought treatment for his hearing loss and tinnitus from private physicians, who reportedly advised him that he needed electronic hearing aids for his hearing loss and that no treatment existed to relieve his tinnitus. However, the Veteran could not afford hearing aids at the time, because he had limited funds as a college student and then later on as a new father, and so he never followed through on the recommendations of his physicians. The Veteran also testified that records of these private treatments were not obtainable because they relate to treatment that occurred over five decades earlier and he could not remember the names of the private healthcare providers involved. The Veteran now contends that his hearing loss and tinnitus are the result of this unprotected in-service exposure to aircraft engine noise while in the United States Air Force. The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case conducted upon separation from service in December 1957 (discussed infra) must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. The Veteran's service treatment records do not show complaints, findings, or diagnoses of either hearing loss or tinnitus. The Veteran's separation examination report, dated in December 1957, shows that his ears and drums were clinically evaluated as normal. Audiometric test results did not show that the Veteran had hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. Whispered and spoken voice test results were 15/15, bilaterally. In an associated "report of medical history," signed by the Veteran, he denied having running ears, or severe tooth or gum trouble. He place a question mark next to "sinusitis." The physician's summary portion of the report notes "ENT (ear, nose and throat) - occasional nose bleeds," and that he denied further medical or surgical history. The Veteran stated, "I consider myself in good health." The Veteran's service personnel records show that he served in aviation units in clerical positions, described as "Apr clerk," clerk typist, and administrative clerk. The only relevant post-service medical evidence is a VA examination report, dated in September 2011. This report shows that the examiner stated that the Veteran's claims file had been reviewed. The report shows that the Veteran reported a history of working in an intelligence unit close to a flight line, and guarding planes intermittently with no ear protection. His vocational noise exposure was described as minimal, working as an electrician in a residential and office setting. Recreational noise exposure was described as hunting and shooting with hearing protection worn in recent years. The Veteran reported the following, both his mother and father had used hearing aids (which the examiner described as "a strong familial involvement"); there was no history of ear infections, surgeries, aural fullness, skull fracture, ototoxic drug administration, or vertigo; he had had constant bilateral tinnitus for approximately 20 years, with gradual onset. On examination, there was mild to moderately severe sensorineural loss bilaterally. The Veteran had bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. The examiner indicated that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that the Veteran had a normal whisper test upon enlistment and a normal audiogram with no threshold worse than 10db HL at separation, and that since there was no hearing loss at separation, and no documentation of hearing loss within one year of separation, and since there was a strong familial history of hearing loss, that the Veteran's hearing loss was not a result of military service. With regard to tinnitus, the examiner indicated that the Veteran's tinnitus was not at least as likely as not caused by or a result of an event in military service. The examiner explained that since there was no mention of tinnitus during service, and tinnitus was not first noticed until 30 years after military service, it is not likely that his tinnitus is a result of military service. The Board has determined that the claims must be denied. There is no evidence to show any relevant treatment during service, nor has the Veteran claimed that he was treated for hearing loss or tinnitus during service. In addition, the earliest medical evidence of either hearing loss, or tinnitus, is dated in 2011. This is approximately 52 years after separation from service. In this regard, the Veteran has reported a history of recreational noise exposure while hunting and shooting, with hearing protection worn in recent years, and the VA examiner noted "a strong familial involvement" of hearing loss (i.e., both parents). Furthermore, there is no competent evidence to show that the Veteran has hearing loss, or tinnitus, that is related to his service. The only competent opinions are found in the 2011 VA examination report, and these opinions weigh against the claims. Finally, there is no competent evidence to show that sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. B. Residuals, Left Cheekbone Fracture, Deviated Nasal Septum, Chronic Sinusitis With regard to the claims for service connection for residuals of a left cheekbone fracture, a deviated nasal septum, and sinusitis, the Veteran contends that he had three of his teeth surgically removed while in active duty, during which he sustained a left cheekbone fracture from the physical trauma associated with their extraction. He stated that he subsequently had several bone fragments removed through his nasopharyngeal passages that related to this incident, most recently approximately 20 years ago. He contends that the left cheekbone fracture also resulted in a deviated septum and chronic sinusitis. The Veteran has testified that he received medical treatment for the aforementioned disabilities from private sources in the years since separation from service, but that records relating to such treatment were no longer available due to their remoteness from the present time, and because he could not remember the names of all his treating physicians. The Veteran's service dental records show that in August 1954, he underwent "complicated surgical removal" of three abscessed teeth (teeth #12, #13, and #15 in his left upper mandible), and that a treatment note from this procedure stated that the extraction was "complicated. . . [by] a partial exposure into the left maxillary sinus in the molar area." An August 1954 clinical record cover sheet states that the diagnosis was abscess, periapical, chronic, #12, #13, #15, and that this disorder EPTS (existed prior to service). The Veteran was discharged to duty after one week. The Veteran's separation examination report, dated in December 1957, shows that his "head, face, neck, and scalp," nose, sinuses, and mouth and throat, were clinically evaluated as normal. He was noted to have occasional nose bleeds, and missing teeth, with a recommendation for dentures. In an associated "report of medical history," signed by the Veteran, he indicated that he had a history of "ear, nose or throat trouble," and he placed a question mark next to "sinusitis." He stated, "I consider myself in good health." The "physician's summary" portion of the report notes occasional nose bleeds. The only relevant post-service medical evidence consists of VA nose, and bone, examination reports, dated in September 2011 (these examinations were provided by the same physician). These reports show that the examiner stated that the Veteran's claims file had been reviewed. These reports show that the Veteran reported a history of sustaining a left maxillary fracture/broken left cheekbone during service in 1954 while undergoing dental work, and that he was told that he would have sinus problems all his life. He reported recurrent left sinus problems "off and on" since that time, with treatment with antibiotics two to three years ago. He also reported a history of a stuffy nose with use of Tramadol, but that he was not currently taking any medication. He reported a history of having bone fragments removed from the top of his mouth twice by a dentist. In this regard, one of the reports indicates that the Veteran provided the examiner with a report from Dr. C in which he linked hearing loss, tinnitus, and sinus problems to his service; however, there is nothing to show he ever submitted such a report for inclusion in the claims file. On examination, he was wearing a full upper denture and had many missing teeth. His sinuses were normal, with no tenderness. X-rays of the nasal bones were unremarkable, and the nasal septum was midline. The paranasal air sinuses were clear. An X-ray of the sinuses was negative. The diagnosis was old well-healed fracture of the left maxilla with no deformity, with no effects on daily activities. The examiner concluded, "After reviewing his C-file and medical records including the STR's (service treatment reports) and obtaining the history from the Veteran and performing the physical examination, it is the opinion of this examiner that there is NO RESIDUALS due to the surgical extraction of his teeth." (emphasis in original). The Board has determined that the claims must be denied. Although the Veteran clearly underwent extraction of three teeth during service, there is no evidence to show any findings or diagnoses of any of the claimed disabilities during service. In addition, there is no medical evidence to show that the Veteran currently has either a deviated nasal septum, or sinusitis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In this regard, X-rays of the nasal bones and sinuses were unremarkable, and the nasal septum was midline. Although the VA examiner appears to have accepted that the Veteran sustained a fracture of the left maxilla during service, the Veteran's X-rays were negative, and the examiner stated that this was old and well-healed, with no deformity, with no effects on daily activities, and that there were no residuals due to the surgical extraction of his teeth. Therefore, it is not visible upon X-ray and appears to be completely asymptomatic, and the evidence is insufficient to show that he has a left cheek disability. Id.; see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (service connection requires a diagnosed or identifiable underlying malady or condition to constitute a disability for which service connection may be granted); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). There is no competent evidence of record to show that the Veteran has a deviated nasal septum, or sinusitis, that is related to his service. The only competent opinions are found in the 2011 VA examination report, and these opinions weigh against the claims. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. C. Conclusion For all claims, the Board has considered the doctrine of reasonable doubt; however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issues on appeal are based on the contentions that hearing loss, tinnitus, residuals of a left cheekbone fracture, a deviated nasal septum, and chronic sinusitis, were caused by service that ended in 1958. However, with regard to the claim for tinnitus, the Veteran has given conflicting statements as to the onset of his tinnitus. Specifically, he reported an onset within one year of service separation at his June 2011 hearing, and an approximate 20-year history of tinnitus during his September 2011 VA examination. Furthermore, the earliest post-service medical evidence of either hearing loss or tinnitus is found in the September 2011 VA examination report, and this is about 52 years after separation from service. In addition, when the Veteran's service treatment records (which do not show any relevant complaints, treatment, findings, or diagnoses), and his post-service medical records are considered (which do not show hearing loss, or tinnitus, prior to 2011, which contain etiological opinions against all of the claims, which do not show that he has sinusitis or a deviated septum, and which do not contain competent evidence of a nexus between any of the claimed disabilities and the Veteran's service) (as previously stated, the Veteran's healed fracture of the left maxilla is not shown to be productive of a disability), the Board finds that the service treatment reports, and the medical evidence, outweigh the lay statements to the effect that the Veteran has the claimed conditions that are related to his service. II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in April 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. In August 2011, the Board remanded these claims. During his June 2011 hearing, the Veteran stated that he had received recent treatment for his sinuses from a physician he identified as "Dr. A.C." of "Broken Arrow Palm." He further stated that Dr. C's records may incorporate copies of the Veteran's treatment records from Dr. C's predecessor ("Dr. R"), who had previously treated the Veteran for his sinus complaints and ultimately referred him to Dr. C. At the hearing, it was agreed that the record would be held open for 30 days to allow the Veteran to submit any available private treatment reports. However, there is nothing to show that he ever did so. In the Board's remand, it directed that Dr. C's records should be obtained and associated with the claims folder, along with any other records identified as relevant to the current appeal that have not as of yet been made a part of the evidence. That same month, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand, which included a request that the Veteran complete and return an "authorization and consent to release information" for Dr. C (VA Form 21-4142). There is no record of a response. In its remand, the Board further directed that for all claims, the Veteran should be scheduled for VA examinations, and that etiological opinions be obtained. In September 2011, the Veteran was afforded examinations for all of the claimed disabilities. The VA examination reports show that the examiners discussed the Veteran's service and post-service treatment reports, and that his history was taken and recorded. They show that an audiometric examination was performed. The audiometric examination report includes these test results. Both of the examiners stated that the Veteran's C-file had been reviewed. Etiological opinions were obtained, and these opinions are accompanied by a sufficient rationale. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the foregoing, there is no basis to find that these reports are inadequate, or that a remand for a new examination is required. See 38 C.F.R. § 3.159(d) (2012). In summary, it appears that all known and available service and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. Given the foregoing, the Board finds that there has been substantial compliance with its August 2011 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs