Citation Nr: 1316857 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 06-16 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ears or other infection or abscess of the face, head, or neck. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1991 with service in Southwest Asia from January 1991 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for an upper respiratory infection and joint pain; continued a 10 percent evaluation for an infected cyst of the left ear with tinnitus; and declined to reopen claims for service connection for chest pain, peritonsillar abscesses/tonsillitis, a tonsillectomy; ear canal abscesses of the right ear, hearing loss, and sinus problems/allergies. In September 2004, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in April 2006. In July 2010, the Board denied service connection for an upper respiratory disorder and a disorder manifested by joint pains, both to include as due to undiagnosed illness, and remanded the Veteran's petitions to reopen claims for service connection for a disorder manifested by chest pains, to include as due to an undiagnosed illness, a peritonsillar abscess, tonsillitis, hearing loss, and a sinus disorder to the Appeals Management Center (AMC) for additional notice. The Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In an April 2012 rating decision, the AMC granted service connection for allergic rhinitis, assigning a noncompensable evaluation effective March 10, 2003. This grant of service connection is considered a full grant of the benefits on appeal for the remanded petition to reopen a claim for service connection for a sinus disorder. As such, the petition to reopen a previously denied claim for service connection for a sinus disorder is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In January 2013, the Board reopened the Veteran's claims for service connection for chest pains, peritonsillar abscesses/tonsillitis, and hearing loss, denied service connection for chest pains, and remanded the claims for service connection for a peritonsillar abscess/tonsillitis and hearing loss to the AMC for further evidentiary development, including obtaining outstanding treatment records and providing the Veteran with appropriate VA examinations for his disabilities. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the Veteran was given additional notice in an August 2010 letter from the AMC in response to the July 2010 Board remand directives. Additionally, a February 2013 letter from the AMC asked the Veteran to identify any outstanding treatment records in compliance with the January 2013 Board remand directives. The AMC also obtained updated VA treatment records and provided the Veteran with VA examinations in February 2013. Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board. The issue of entitlement to service connection for a peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ears or other infection or abscess of the face, head, or neck, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The competent evidence of record does not establish that the Veteran currently has a hearing loss disability for VA purposes, as defined by applicable VA regulations. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to the initial adjudication of the Veteran's claim, a letter dated in June 2003 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, a letter dated in August 2010 informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has not identified any private or other treatment records that he wished for VA to obtain and that he felt were relevant to his claim. With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent a VA audiological examination to evaluate his claimed hearing loss in February 2013. The report from that examination has been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has claimed he has bilateral hearing loss as a result of military service. He reports that he has difficulty hearing and that he believes that this is related to in-service noise exposure. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). A review of the medical evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. Specifically, the medical evidence only includes a single audiogram from the February 2013 VA examination. At that time, audiometric testing results did not show an auditory threshold of 40 dB or higher at any of the above-referenced frequencies or auditory thresholds of 26 dB or greater for at least three of the above-referenced frequencies. Additionally, the reported Maryland CNC Test score of 100 percent for both ears did not meet the VA definition of a hearing loss disability. These values simply do not meet the VA definition of a hearing loss disability. As the Veteran has not submitted any other private or VA audiograms, the evidence is negative for any audiometric testing to show hearing loss for VA purposes. Without such evidence, service connection for bilateral hearing loss cannot be granted. See Hickson, supra. The Board has also considered the Veteran's contentions that he has hearing loss that rises to the level of a disability for VA purposes. However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the measured level of his reported hearing loss. Although it is error to categorically reject a non-expert medical opinion, not all medical questions are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a non-expert (a layperson) is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit stated that: "[l]ay 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." See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together leads the Board to the conclusion that whether a non-expert diagnosis is competent evidence to establish a claimed disorder or link that disorder to service depends on the complexity of the particular question and whether or not a diagnosis could be rendered based on personal observation. In this case, the Board finds that a diagnosis cannot be rendered based solely on personal observation. While the Veteran is certainly competent to report that he has experienced a decrease in hearing acuity, he is not competent to determine whether the decreased acuity he has experienced is such as to meet the regulatory definition of a hearing loss disability. His assertions are therefore not competent evidence of a diagnosis of hearing loss for VA purposes. Given the competent medical opinion evidence provided by the February 2013 VA examiner in this case, as already discussed, the Board finds that the preponderance of evidence is against a finding that the Veteran has manifested a hearing loss disability for VA purposes during the appeal period. Accordingly, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to its adjudication of his claim of entitlement to service connection for a peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ears. The Veteran was afforded VA ear conditions and nose/throat/larynx/pharynx conditions examinations to address his peritonsillar abscess complaints in February 2013. Both examiners concluded that the Veteran had no current peritonsillar abscess or residuals thereof. However, a review of the claims files, and the prior Board decisions and remands, reflects that the Veteran submitted his claim for service connection for a peritonsillar abscess in 2003. The clinical records reflect that the Veteran was treated in 2007 for a peritonsillar abscess, including excision. Therefore, the development of the medical evidence and opinion must address whether the Veteran's excision of a peritonsillar abscess in 2007 was related to his service. As set forth in the Board's 2010 Decision and Remand, the Veteran was treated for ear infections or abscesses several times in service. The Veteran has been treated for abscesses or cysts of the head and neck on several occasions since he submitted the 2003 claim underlying this appeal. His VA treatment records include complaints of multiple other facial and oral abscesses throughout the appeals period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim..."). The Veteran has raised a specific contention that these infections or abscesses are residuals of the treated, excised peritonsillar abscess. The examiners did not discuss the specific history in this case, or address the specific contention that multiple facial and oral abscesses were residuals of the peritonsillar abscess which required excision and that the infections and abscesses were residuals of infections and abscesses in service. The Board has recharacterized the issue on appeal to more specifically state the Veteran's contentions and the clinical opinions required to address those contentions. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for a peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ears or other infections or abscesses must be remanded for a new VA examination. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran another opportunity to submit or identify any evidence, of any type, which may be relevant to his claim that a peritonsillar abscess, tonsillitis, chronic cysts of the ears, or other infection or abscess of the face, head, or neck treated since 2003 is related to his service or has been chronic since his service. 2. Thereafter, the Veteran must be scheduled for a VA examination to determine the nature and etiology of his claimed peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ear or other infections or abscesses. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination, including the Veteran's 2003 claim and VA clinical records throughout the pendency of the claim, form 2003 to the present, in addition to review of the service treatment records and any post-service records relevant to the claim on appeal. That such a review was conducted must be noted in the examination report. The examiner should develop the pertinent history, conduct physical examination, and conduct any required laboratory or diagnostic examinations. The examiner must state whether the Veteran's diagnosed peritonsillar abscess (August 2007 VA treatment records), or any other claimed disorder, to include cyst or infection of the ears or of the head and neck, manifested during the period from 2003 to the present, was caused by or etiologically related to or aggravated (permanently increased in severity beyond the natural progress of the disorder) by or during the Veteran's military service. The examiner must specifically comment on the Veteran's contention that he currently has residuals of the multiple facial and oral abscesses during the appeals period and indicate whether any of these are related to his military service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent, or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for peritonsillar abscess and tonsillitis, to include as manifested by chronic cysts of the ear, or other infection or abscess of the face, head, or neck, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by 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 2002 & Supp. 2012). ______________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs