Citation Nr: 1311531 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-21 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for residuals of a fractured nose with a deviated septum. 2. Entitlement to service connection for left ear hearing loss disability. 3. Entitlement to service connection for right ear hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1973. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in October 2012. A transcript of the hearing is of record. The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals of a fractured nose, was raised during the October 2012 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for tinnitus and right ear hearing loss disability are addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Residuals of a fractured nose are manifested by mild deviated septum blockage. 2. A hearing loss disability of the left ear has not been present at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for residuals of a fractured nose with a deviated septum are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.31, 4.97, Diagnostic Code 6205 (2012). 2. A hearing loss disability of the left ear was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in an RO letter sent in June 2009, prior to the initial adjudication of the claims in September 2009. The record also reflects that service treatment records and VA treatment records have been obtained. The Veteran submitted multiple written statements discussing his contentions. A VA audio examination was provided in September 2009. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report in this case is adequate for adjudication purposes. The examiner considered all of the pertinent evidence of record and the statements of the Veteran, and provided a rationale for the opinion stated, relying on and citing to the records reviewed. The Veteran was also provided with a VA examination for his service-connected nasal disability in September 2009. The Board finds the September 2009 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected nasal fracture residuals under the applicable rating criteria. The Veteran has not alleged and there is no other indication in the record that the disability has increased in severity since that examination. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate these claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Entitlement to a Compensable Evaluation - Residuals of a Nasal Fracture Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). A 10 percent rating is warranted for traumatic deviation of the nasal septum if there is 50-percent obstruction of the nasal passage on both sides, or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, in a January 1976 rating decision, the RO granted entitlement to service connection for residuals of a fractured nose and assigned a noncompensable rating. The Veteran filed a claim seeking a compensable evaluation in May 2009. In the September 2009 rating decision currently on appeal, the RO continued the previously assigned noncompensable rating. According to a September 2009 VA examination report, the Veteran complained of frequent difficulty breathing through his nose when sleeping. He reported having no nasal surgery and no current treatment for his disability. There was no history of hospitalization, neoplasm, nasal allergy, osteomyelitis, sinusitis, current rhinitis symptoms, speech impairment, nasal polyps, or rhinoscleroma. The examiner indicated that the Veteran had a 10 percent left nasal obstruction and a 20 percent right nasal obstruction and a history of septal deviation due to trauma. It was reported that there were no permanent hypertrophy of the turbinates from bacterial rhinitis and no tissue loss, scarring, or deformity of the nose. The examiner listed a diagnosis of nose fracture with deviated septum blockage, mild. It was also noted that there were no significant effects on usual occupation or daily activities. During his October 2012 hearing, the Veteran asserted that he suffered from difficulty breathing, had two sinus headaches a year, and treated his symptoms with over the counter medications. In light of the objective findings on clinical examination showing that the Veteran does not have complete obstruction of the nasal passage on one side or at least 50 percent blockage on both sides, the disability does not meet the criteria for a compensable rating under Diagnostic Code 6502. The Board has considered whether there is any other schedular basis for granting a compensable rating but has found none. In this regard, the Board notes that the evidence does not show that the service-connected disability is manifested by scars or loss of part of the nose as to warrant a rating under Diagnostic Codes 6504. In fact, the evidence shows that the disability is only manifested by deviation of the septum with obstruction of the nasal passages, manifestations that are properly rated under Diagnostic Code 6504. The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted for the reasons discussed above. The Board has also considered the benefit of the doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the manifestations of this disability are contemplated by the schedular criteria. Consequently, referral for extra-schedular consideration is not warranted. Entitlement to Service Connection for Left Ear Hearing Loss Disability Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. However, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Court held in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In multiple written statements of record and during his October 2012 hearing, the Veteran has contended that he suffers from left ear hearing loss caused by his exposure to noise while working with explosives during his active duty service. The Veteran asserted that he first noticed decreased hearing in the late 1970s. The Veteran's DD Form 214 reveals that his military occupational specialty (MOS) was 12A10 (Combat Engineer) with a related civilian occupation of Blaster. Service treatment records are negative for a diagnosis of or treatment for a left ear hearing loss disability as defined by VA. A November 1972 audiogram included in the service enlistment examination report listed pure tone thresholds, in decibels, for the left ear as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 25 5 25 15 A November 1973 audiogram included in the service separation examination report listed findings within normal limits (WNL). Post-service VA treatment records dated from 2007 to 2009 show treatment for hearing loss. In September 2009, the Veteran was afforded VA audio examination. He complained of right ear hearing loss. Pure tone thresholds, in decibels, for the left ear were reported as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 10 25 15 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. After reviewing the Veteran's claims file and examining the Veteran, the examiner noted that left ear hearing was clinically normal. After a thorough review of the evidence of record, the Board concludes that service connection for left ear hearing loss disability is not warranted. In this case, post-service VA audiology examination results dated in September 2009 show that the Veteran does not have a left ear hearing disability for VA compensation purposes. In addition, there is no other evidence showing that the Veteran has had sufficient hearing impairment during the period of this claim to qualify as a disability. The Board acknowledges that the Veteran is able to observe decreased hearing; however, the Board notes that he does not possess the expertise required to determine whether his decreased hearing amounts to a left ear hearing loss disability by VA standards. In any event, even assuming that the Veteran's statements are competent evidence of the presence of hearing loss disability, his statements are clearly of less probative value than the medical evidence indicating that a left ear hearing loss disability has not been present during the period of this claim. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's left ear hearing loss. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to a compensable evaluation for residuals of a fractured nose with a deviated septum is denied. Entitlement to service connection for left ear hearing loss disability is denied. REMAND The Board's review of the record reveals that further development on the matters of entitlement to service connection for right ear hearing loss disability and tinnitus is warranted. In multiple written statements of record, the Veteran has contended that his currently diagnosed right ear hearing loss and tinnitus were caused by his exposure to noise while working with explosives during his active duty service. The Veteran asserted that he first noticed decreased hearing in the late 1970s and tinnitus after undergoing right ear surgeries. As noted above, the Veteran's DD Form 214 reveals that his MOS was Combat Engineer. Service treatment records are negative for a diagnosis of or treatment for a right ear hearing loss disability as defined by VA. A November 1972 audiogram included in the service enlistment examination report listed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 5 25 15 A November 1973 audiogram included in the service separation examination report listed findings within normal limits (WNL). The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments. 38 U.S.C.A. § 1154(a) (West 2012). The Veteran's reported duties comport with the nature of his MOS and his duty station. In addition, there is no evidence of record demonstrating that the Veteran was not exposed to noise from heavy equipment and explosives during active service as asserted. As such, the Board finds the Veteran's report of in-service noise exposure competent and credible evidence. Post-service VA treatment records dated from 2007 to 2009 reveal that the Veteran underwent two right ear surgeries for tympanic membrane repair in 2007 and note findings of unspecified hearing loss, tympanic membrane perforation, occasional right ear tinnitus, and chronic otitis serous or intermittent drainage of the right ear. According to a September 2009 VA audio examination report, the Veteran complained of right ear hearing loss and reported a history of military noise exposure from heavy equipment and demolitions with no hearing protection. The examiner noted that the service treatment records showed mild hearing loss in the Veteran's right ear on enlistment and hearing within normal limits on separation. He further reported post-service occupational noise exposure including working around construction, using forklifts, power tools and jackhammers for thirty years with hearing protection utilized intermittently. The Veteran indicated that he had surgery on his right ear several years ago for a perforated ear drum. He also complained of right ear tinnitus that started several weeks after his right ear surgery. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 30 50 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. Tympanogram in the right ear revealed reduced eardrum compliance in the presence of normal middle ear pressure. After reviewing the Veteran's claims file and examining the Veteran, the examiner diagnosed right ear mild mixed hearing loss, opining that right ear hearing loss and tinnitus were not caused by or a result of unprotected military noise exposure. The rationale provided was that the Veteran had normal hearing bilaterally upon separation from military service to calibrated audiometric testing. He further indicated that there was no military service-related noise-induced hearing pathology for which tinnitus can by medically linked. During his October 2012 hearing, the Veteran reported that he first noticed hearing loss in the late 1970s, was exposed to loud noise in service as Combat Engineer using explosives, and was not exposed to loud noise in his post-service construction jobs. He further asserted that he suffered from constant right ear tinnitus and that it started after his right ear surgeries. He contended that the hole in his right eardrum was associated with events during his military service. Evidence of record also reflects that the Veteran has received VA medical treatment for his claimed right ear hearing loss and tinnitus disorders from the VA Medical Center in Bay Pines, Florida. However, as the claims file only includes an assortment of treatment records from that provider dated from March 1998 to September 2009 and clearly does not include operative reports from two right ear surgeries performed at that facility in 2007. During his October 2012 hearing, the Veteran specifically asserted that his claimed tinnitus onset after his right ear surgeries. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, further development to obtain the outstanding VA records is warranted. During his October 2012 hearing and in post-service VA treatment records dated in March 2007, the Veteran has discussed undergoing right ear surgery at a private medical facility between 15 to 25 years ago. On remand, the originating agency should assist the Veteran in obtaining relevant private treatment records. In addition, if additional pertinent evidence is received, addendum opinions with supporting rationale concerning the etiology of the Veteran's tinnitus and right ear hearing loss should be obtained. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include records from the Bay Pines VAMC pertaining to two right ear surgeries performed in 2007 as well as all other pertinent records for the period from September 2009 to the present. Also of particular interest are any records pertaining to a right ear surgery performed at a private facility many years ago. 2. If any pertinent evidence is received as a result of the above development, the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be returned to the examiner who performed the September 2009 VA audio examination of the Veteran. The examiner should be requested to review the additional evidence added to the record and to provide an opinion with respect to any right ear hearing loss disability and any tinnitus present during the pendency of the claims as to whether there is a 50 percent or better probability that the disability is etiologically related to the Veteran's active service, to include presumed in-service noise exposure. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The rationale for all opinions expressed must also be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the September 2009 VA examiner is not available, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to and reviewed by another examiner with appropriate expertise who should review the record and provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims files if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs