Citation Nr: 1301186 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-20 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left sided facial pain condition claimed as left ear pain. 2. Entitlement to service connection for hypertension to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from September 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefits sought. The Veteran testified in November 2012 before the undersigned Veterans Law Judge at a Videoconference hearing. The issues have been recharacterized to be consistent with the facts of the case. The issue of entitlement to service connection for hypertension to include as secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT The preponderance of the competent evidence is against a finding that a left sided facial pain condition claimed as left ear pain was incurred or aggravated in service, is related to service, or is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW A left sided facial pain condition claimed as left ear pain was not incurred in or aggravated during military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated between April 2008 and July 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations have been conducted in November 2008 and July 2009. The Veteran has not argued, and the record does not reflect, that current the examination and opinion were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744-52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). II. Factual Background The Veteran's service treatment records do not reflect any complaints of, diagnoses of, or treatment left facial pain, or left ear problems including pain. At the July 1967 examination at release from active duty (RAD), the evaluation for the ears and ear drums was normal. In the summary of defects and diagnoses no defects or diagnoses were listed. Private and VA medical treatment records and statements on file are dated from 2002 to November 2012. In a November 2008 statement, a private medical doctor stated that the Veteran had recurrent left ear pain that was severe and diagnosed by an ENT doctor. The medical doctor opined that this was probably due to nerve damage suffered in the service. This assessment was based solely on the Veteran's report of his medical history that is unsupported by the record, and is of no probative value. A January 2009 private Ear Nose and Throat physical examination report shows complaints of gradual hearing loss, tinnitus, and left TMJ (temporomandibular joint) pain. On examination, there are no abnormal findings regarding the ears. The report contains diagnoses of sensorineural hearing loss; tinnitus; and AR (acoustic reflex)/severe. A February 2009 private MRI examination shows that the Veteran underwent magnetic resonance imaging for a history of atypical face pain. After examination, the report contains an impression of (1) slight prominence of the sulci and ventricles is noted, (2) 2 CM retention cyst, inferior aspect of the left maxillary sinus, and (3) special attention is given to the region of the left trigeminal glossopharyngeal nerves, no abnormalities are shown. The report of a July 2009 VA examination shows that the Veteran reported a history of recurrent throbbing pains in the left ear, which were sporadic and going on for the last 45 years. The Veteran reported complaints that it lasts for hours to days, and does not include dizziness or changing in balance. The Veteran reported that he had had tinnitus, but this had resolved. He reported he had not had any ear surgery or head trauma, but he did have significant noise exposure as a seaman on riverboats in combat in Vietnam. On examination of the ears, the examiner made no findings of any abnormal conditions or active ear disease. After examination the report contains a diagnosis of bilateral high frequency sensorineural hearing loss; and that there was no pathology to render a diagnosis of a left ear condition. III. Analysis The record does not show any service treatment record evidence of any left sided facial pain condition or ear condition manifested by pain. A private medical doctor stated in November 2008 that the Veteran had recurrent left ear pain that was probably due to nerve damage suffered in service. However, that physician gave no basis for that opinion so as to link to service any nerve damage or left ear pain. Moreover, the claims file contains no record of complaints or treatment dated before November 2008 to support a finding of a continuity of symptoms since service. This extended period of over 41 years following service without treatment weighs against the claim; especially in view of the absence of any evidence of the condition during active service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Significantly, despite records of receiving private treatment since 2002, the Veteran did not report the condition until 2008, and an early problem list in the early 2000s does not contain any indication of the claimed left ear pain condition. Further, subsequent private treatment records and the report of a July 2009 VA examination shows no competent evidence to link any current neurological or ear condition, manifested by pain, to service. The July 2009 VA examination report shows that the examiner found no pathology to render a diagnosis of a left ear condition. On review of the remainder of the private and VA treatment records dated through 2012, the Board finds no evidence to link to service any diagnosis associated with left sided facial pain claimed as left ear pain. The Veteran's account of the continuity of left ear pain symptoms since service is not consistent with the contemporaneous medical treatment records in service or thereafter, as the first indication of treatment is not until 2008. Thus the Board finds the Veteran's account to lack essential credibility necessary on this matter as it conflicts with contemporaneous treatment records during and since service, prior to 2008. The Veteran does not claim, and the evidence does not suggest, that any diagnosed left sided facial pain condition is proximately due to or aggravated by any service-connected disability. Notably, at the November 2008 VA examination, the examiner opined that the Veteran's service-connected diabetes did not cause secondary complications related to the neurological system. The issue of the diagnosis and etiology of the Veteran's claimed disability is beyond the competency of the Veteran as a lay person because it requires medical knowledge and training. The medical evidence as discussed above does not include probative evidence to link any diagnosed left ear disorder to service or to a service-connected disability. As a lay person, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. The preponderance of the evidence is against the claim for service connection for a left sided facial pain condition claimed as left ear pain; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for a left sided facial pain condition claimed as left ear pain is denied. REMAND The report of a November 2008 VA examination shows that the examiner opined that the Veteran had essential hypertension that was not aggravated by diabetes. The examiner indicated that the diabetes did not cause secondary complications related to the heart, skin, peripheral arteries, a renal impotence, or the neurological system. The examiner opined that the Veteran did not have any other non-diabetic condition that was worsened or increased by the diabetes. Additional medical evidence was submitted subsequent to the November 2008 VA examination that conflicts with the opinion in the VA examination report. In an April 2009 statement, a private medical doctor stated that the Veteran had diabetes with a diagnosis of metabolic syndrome including hypertension and dyslipidemia, which manifested with diagnosis of diabetes mellitus II in 2002. In a November 2012 private statement, a medical doctor opined that having diabetes increased the Veteran's risk of developing high blood pressure and other vascular problems because diabetes adversely affected arteries predisposing them to atherosclerosis. Given the additional medical evidence that suggests the Veteran's hypertension may be linked to the service-connected diabetes mellitus, a remand is necessary in order for the Veteran to be examined by VA and an opinion obtained that takes into consideration all of the evidence on file including that discussed above. The Veteran must be given an opportunity to submit statements regarding the onset and continuity of relevant symptoms; and any additional pertinent treatment records not on file should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records pertinent to the hypertension service connection claim. 2. Notify the Veteran that he may submit statements from himself and others who have observed the Veteran; describing their impressions regarding the onset and chronicity of symptoms of hypertension, since service or since onset of the Veteran's diabetes mellitus. Provide the Veteran with an appropriate period of time for the receipt of such evidence. 3. After completion of the above, schedule the Veteran for VA examination to determine the nature extent, onset and likely etiology of any hypertension disability found to be present. The claims file must be made available to and reviewed by the examiner. All indicated studies are to be performed and all findings reported in detail. In offering opinions, the examiner must acknowledge and discuss the Veteran's report of a continuity of relevant symptoms since service or since onset of diabetes mellitus. The examiner is to elicit from the Veteran a history of hypertension since service or since onset of diabetes mellitus. Thereafter, the examiner must opine as to whether it is at least as likely as not that any diagnosed hypertension: (1) is related to or had its onset in service, or was aggravated in service; or (2) is proximately due to or the result of a service-connected disability to include diabetes mellitus In this regard, the examiner must comment on the opinions contained in the private statements dated in April 2009 and November 2012. All opinions must be supported by a thorough rationale. 4. Then, following any additional development deemed appropriate, readjudicate the Veteran's claim. If the benefit sought is not granted, an appropriate supplemental statement of the case must be issued. The Veteran and the representative must be afforded an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs