Citation Nr: 1307748 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-40 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for low back pain. 4. Entitlement to service connection for residuals, fractured right great toe. 5. Entitlement to service connection for nose bleeds and a "runny nose." 6. Entitlement to service connection for a knot on the outer part of the left foot. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from August 1995 to August 1999. These claims come before the Board of Veterans' Appeals (Board) on appeal of September 2007 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified during a video conference hearing before the undersigned Veterans Law Judge in November 2012. A review of the Virtual VA paperless claims processing system reveals no additional pertinent documents for consideration in support of these claims. FINDINGS OF FACT 1. On November 9, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran's representative to withdraw the Veteran's claim of entitlement to service connection for bilateral hearing loss. 2. Tinnitus was not incurred in or aggravated by the Veteran's active service. 3. Low back pain was not incurred in or aggravated by the Veteran's active service. 4. Residuals of a fractured right great toe were not incurred in or aggravated by the Veteran's active service and may not be presumed to have been so incurred. 5. A nasal disorder (characterized as nose bleeds and a "runny nose") were not incurred in or aggravated by the Veteran's active service. 6. A knot on the outer part of the left foot was not incurred in or aggravated by the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the claim of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria to establish service connection for tinnitus are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria to establish service connection for low back pain are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria to establish service connection for residuals of a fractured right great toe are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 5. The criteria to establish service connection for a nasal disorder are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 6. The criteria to establish service connection for a knot on the outer part of the left foot are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hearing Loss Claim Under 38 U.S.C.A. § 7105 (West 2012), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Either an appellant or his or her authorized representative may request withdrawal. 38 C.F.R. § 20.204 (2012). On November 9, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran's representative to withdraw the Veteran's claim of entitlement to service connection for bilateral hearing loss. With regard to that claim, there thus remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed. II. All Other Claims In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO provided the Veteran VCAA notice on the claims being decided by letters dated June 2007, December 2009, February 2010, April 2010, August 2011 and October 2011. The June 2007 and February 2010 notice letters were sent before the RO decided the Veteran's claims, and satisfy the timing requirements noted above. They also satisfy the content requirements. They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so. They include all necessary information on disability ratings and effective dates. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicate that the RO would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source(s), but that it was the Veteran's responsibility to ensure VA's receipt of this and any other pertinent evidence. The RO also satisfied its duty to assist the Veteran in the development of these claims by securing and associating with the claims file all documents the Veteran identified as being pertinent to his claims, including service treatment records and post-service private treatment records. The RO did not afford the Veteran VA examinations in support of his claims, but such action is not mandated. Under 38 U.S.C.A. § 5103(d) (West 2002), VA's duty to assist a claimant in the development of a claim for service connection includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, as explained below, there is no competent evidence of record suggestive of an association between the claimed disabilities and the Veteran's service. VA's duty to provide the Veteran an examination in support of these claims is thus not triggered. Analyses Tinnitus, Back Pain & a Nasal Disorder According to his written statements and hearing testimony, the Veteran alleges that he first noticed tinnitus(ringing in the ears) at Camp LeJeune when he was training with artillery and mortars as part of an artillery unit. He alleges that he sustained exposure to an excessive amount of noise during these activities. He contends that as a radio operator/forward observer, he was in close proximity to bombing sites. He alleges that he reported the tinnitus during service, but no examiner confirmed that condition or noted any hearing problems. He asserts that, following discharge, he continued to experience periodic tinnitus. He admitted that he had temporary employment in construction jobs, which exposed him to the noise of a hammer, although he later alleged that these jobs actually required clean-up of construction sites and not actual construction. He also alleged that his employer issued him ear plugs to combat the noise of grinding metal. The Veteran claims that his back pain initially manifested during active service when participating in physical training. He does not claim that he had a particular back injury during service, only that he experienced back pains after marches. He alleges that he complained about the pain to the doctors on site or unit medics and they issued him Motrin. He does not believe that any of these medical professionals documented his complaints. He asserts that he has continued to have back problems since service, which have necessitated going on medical leave at work; engaging in exercises and seeing a chiropractor. He contends that his private physician, Thomas Boeck, M.D., from Newberry, North Carolina, has related his back problems to the jobs he had in the military. The Veteran contends that he received treatment for nose bleeds and a runny nose during service, which manifested when he engaged in protective mask training. He claims that after using the masks his nose began to bleed when he sneezed. He asserts that he was told that he was sneezing so much, it was irritating his nose and causing constant bleeding. He contends that this has been a continuous problem since its onset, but that does not seek treatment for the problem. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). Walker v. Shinseki, __ F.3d __ , No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain medical conditions, including arthritis, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. § 3.307, 3.309(a) (2012). Post-service medical documents, including a September 2009 letter from Dr. Boeck and private treatment records dated from approximately 10 years after service (2009 to 2010), confirm that the Veteran currently has tinnitus and degenerative disc disease of the lumbar spine. These records also show that the Veteran has a septal spur/deformity, which is causing chronic nasal congestion, but not that he has been diagnosed with a disability manifested by nosebleeds and a runny nose. According to service treatment records, during service, the Veteran received treatment for nosebleeds, but did not report tinnitus, noise exposure or back pain. In May 1999, he reported blood when he blew his nose. An examiner indicated that the nosebleeds occurred during winter months after blowing and were minimal and most likely due to dry mucous membranes. On discharge examination conducted in May 1999, the Veteran specifically reported that he had not had ear trouble, hearing problems, recurrent back pain or any back injury or swollen joints. The examiner noted normal clinical evaluations of the ears, hearing, spine and nose. The Veteran first sought treatment for tinnitus and back pain in 2008, after he filed his claim for compensation for those conditions. Since then, he has continued to receive treatment for back complaints. In 2009, he sought treatment for nasal congestion. During the course of this appeal he has not sought treatment for nose bleeds or a "runny nose." Two medical professionals, Drs. Moore and Boeck, have discussed the Veteran's tinnitus and back disability, but have not etiologically linked the Veteran's tinnitus and back disability to his active service. In an October 2009 private treatment record, Dr. Moore indicates that it was significant that the Veteran served in the Army as part of an artillery unit with exposure to cannon fire. He also indicates that the Veteran had frequent otitis media as a child, which was not a problem as an adult, and that he had been issued and used hearing protection in service. However, Dr. Moore did not comment on whether he believed that, given the reported in-service noise exposure, the Veteran's tinnitus and exposure are related. He did, however, indicate that high-pitched tinnitus can occur in some individuals who have hearing capability beyond 8000 Hertz. He explained that the inner ear hair cells (neurons) in these individuals can sustain trauma not demonstrated on a routine audiogram, which would cause tinnitus in that range, and that these individuals have a lower threshold for experiencing tinnitus. While Dr. Moore found this example to be compatible with the Veteran's case, it is evidence that Dr. Moore was not aware of the other aspect of the Veteran's documented military history: that the Veteran specifically denied then having, or ever having had, hearing trouble when he left active service. The physician's comment is insufficient to represent a nexus opinion as there is no evidence of record confirming any in-service symptoms as alleged by the Veteran; in-service noise exposure and/or acoustic trauma. In addition there is evidence of record of post-service noise exposure (work as construction clean up, during which an employer issued ear protection). According to the September 2009 letter from Dr. Boeck, the Veteran's back pain began 10 years prior to his office visit (approximately 1999), when he was in the military. Dr. Boeck indicates that in April 2008, the Veteran was seen by another chiropractor. Dr. Boeck's comments regarding the onset of the Veteran's back pain appear to be a reiteration of the Veteran's reported medical history, which Dr. Boeck does not objectively confirm or discuss further in the context of the medical evidence. Dr. Boeck's letter does not include an opinion linking the Veteran's degenerative disc disease of the lumbar spine to his active service, including the alleged onset of the back pain. Moreover, to the extent that the Veteran has reported having had these disorders and symptoms since discharge, he is not credible. As noted, shortly before he left active service, he specifically denied having such symptoms. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's assertions thus represent the only evidence of record specifically linking his tinnitus and back disability to service and diagnosing a nasal disability. The Veteran is competent to state that he experienced ringing in his ears, back pain, nose bleeds and a runny nose during and since service, as those conditions are capable of lay observation. He does not, however, possess a recognized degree of medical knowledge to diagnose a medical condition or offer an opinion on medical causation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is not competent to offer an opinion regarding a medical question when that question may not be resolved through lay observation). Moreover, the Veteran is not credible. Even though the Veteran's reports of tinnitus since service are competent and even assuming Dr. Moore's and Dr. Boeck's recording of the Veteran's reported medical history could be construed as medical evidence of a nexus between the Veteran's tinnitus and back disability and service, the Board finds such evidence not probative. The Veteran had ample opportunity to report noise exposure and back pain during active service, including when he underwent his discharge evaluation. He did not. In fact, he specifically denied ear and back problems. In addition, during the course of this appeal, he untruthfully told podiatrist Thomas Curd, M.D. that the military had lost his records when in fact, his claims file is available and contains records of treatment of various medical conditions. Further suggesting a lack of credibility, he offered conflicting evidence as to the onset of his back pain, first indicating to VA that it began during physical training, and subsequently indicating to Dr. Moore that it began at the end of his military career. In the absence of competent and credible evidence relating tinnitus and degenerative disc disease of the lumbar spine to the Veteran's active service and diagnosing a disability manifested by nose bleeds and a runny nose, the Board concludes that such conditions were not incurred in or aggravated by such service. . A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the benefit-of-the-doubt rule is not for application as the preponderance of the evidence is against each claim. Right Great Toe and Knot on Left Foot The Veteran also seeks grants of service connection for residuals of a fractured right great toe and a knot on the outer part of the left foot. He alleges that he fractured this toe prior to service and, during service, aggravated his condition when he participated in physical training and forced marches and carried extra equipment, including a 40 pound radio, as a field radio operator. He further asserts that his toe began to hurt more and he developed the knot on his left foot after completing a "hump" (15-mile walk with a 70-pound military pack on his back). Allegedly, due to the knot, his staff sergeant sent him to the military hospital where staff gave him 800 mg. of Motrin. The Veteran testified that Dr. Curd, whose records of the Veteran's foot treatment are in the claims file, told him that his right great toe disability was aggravated by active service and that his left foot disorder was incurred in service. Post-service medical documents, including treatment records and a report of a private podiatry visit dated in October 2009 and an October 2009 letter from Dr. Curd, confirm that the Veteran has a disability of the right great toe diagnosed as osteoarthritis and hallux limitus with dorsal exostosis, and a disability of the left foot diagnosed as exostosis of the fourth metatarsocuneiform with the possibility of a previous stress fracture. According to the Veteran's service treatment records, these disabilities neither preexisted service, nor developed during service. The Veteran did not report or receive treatment for any toe or foot complaint other than a corn on the fifth digit of his right foot. On enlistment examination conducted in June 1995, he specifically indicated that he had not had any foot trouble and an examiner, who commented on multiple medical conditions in his summary, refrained from noting any toe or foot abnormalities. Similarly, on discharge examination conducted in May 1999, the examiner noted a scar on the dorsum of the Veteran's right foot from a childhood accident, but no previous fracture of the right great toe and no abnormalities of that toe or the Veteran's left foot. According to the Veteran's post-service treatment records, he first sought treatment for these conditions during the course of this appeal, after the RO denied his right great toe claim and the Veteran filed his claim for a knot on the left foot, and has not returned for further treatment. In a Patient Information Sheet dated October 2009, the Veteran identified the knot on his left foot as being midway down and on the very left outer part of that foot. He also indicated that the military had lost his records and that he needed evidence showing that in-service marches caused his toe to be painful. According to a report of the podiatrist, Dr. Curd, x-rays taken during the visit indicated a possible fracture of the left foot, not right foot. On that date, the Veteran reported that, during service, he developed the knot on his left foot and received treatment for his right great toe. He further reported that, during service, he wore combat boots and Dr. Scholl inserts. In his report of the visit and a letter dated in October 2009, Dr. Curd confirmed osteoarthritis of the right great toe and exostosis of the left fourth metatarsocuneiform, but did not relate either of these conditions to the Veteran's active service, or otherwise confirm objectively the Veteran's reported medical history. Even assuming Dr. Curd's recording of the Veteran's reported medical history could be construed as medical evidence of a nexus, given the questionable credibility of the Veteran, the evidence is not probative. The Veteran had ample opportunity to report a preexisting fracture of the right great toe when he sought treatment for his right fifth toe during active service and was shown to have a scar on the dorsum of his right foot. He did not. In addition and as previously indicated, he then untruthfully indicated to Dr. Curd that the military had lost his records when in fact, his claims file is available and contains many records of treatment of various medical conditions. He did not seek treatment for either of the conditions at issue in this decision until he learned what evidence was needed to substantiate his claims. He then specifically requested Dr. Curd to provide evidence showing that his service had caused his right great toe to be painful. Even with this request, Dr. Curd was unable to do so. The Veteran's assertions thus represent the only evidence of record linking right great toe and left foot disabilities to his active service. These assertions are not competent, however, as the Veteran does not possess a recognized degree of medical knowledge to offer an opinion on medical causation. Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007). In the absence of competent and credible evidence relating the right great toe and left foot disabilities to the Veteran's active service, the Board finds that such conditions were not incurred in or aggravated by such service. In the absence of evidence establishing that the osteoarthritis of the right great toe manifested prior to 2009, within a year of the Veteran's discharge from active service, the Board also finds that the osteoarthritis may not be presumed to have been so incurred. The Board concludes that the criteria to establish service connection for the claimed disabilities are not met. The benefit-of-the-doubt rule is not for application as the preponderance of the evidence is against each claim. CONTINUED ON NEXT PAGE ORDER The appeal on the claim of entitlement to service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is denied. Service connection for low back pain is denied. Service connection for residuals, fractured right great toe, is denied. Service connection for nose bleeds and a runny nose is denied. Service connection for a knot on the outer part of the left foot is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs