Citation Nr: 1326364 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-10 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a nasal disorder, to inferior turbinate hypertrophy, allergic rhinitis and anosmia. 2. Entitlement to an initial compensable rating decision for left ear hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from February and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran appeared and testified at a personal hearing in November 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. This appeal was previously before the Board in June 2012. The Board remanded the claim so that the Veteran could be scheduled for appropriate VA examinations. The case has been returned to the Board for further appellate consideration. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss has been raised by the record, 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 issue of entitlement to an initial compensable rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Finding the Veteran's statements credible and resolving reasonable doubt in his favor, his nasal symptoms began in service and have been continuous since his service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, his nasal disorders were incurred in-service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim to for service connection for nasal disorders, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). 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. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background and Analysis On his claim for service connection, the Veteran indicated that his nasal disorder began in 1976 and he has suffered continuous symptoms. Service treatment records include an induction examination where the Veteran reported a history of ear, nose and throat trouble. In explanation, he reported a history of bronchitis and pharyngitis (although the handwriting is difficult to read). The records do not include a separation examination, and there is a referral for administrative separation due to unsuitability due to sleepwalking. The earliest treatment records are from March and April 2000, and show that the Veteran suffered from congestion and obstruction, which was not improved by nasal sprays. VA treatment records include a March 2011 record where the Veteran reported a 30-year history of problems with rhinorrhea and decreased nasal airflow bilaterally. A CT scan revealed minimal maxillary and ethmoid sinus mucosal thickening and bilateral inferior turbinate hypertrophy. There are two opinions from the Veteran's private physician, T.T., contained in the record. In May 2011, Dr. T.T. indicated that he could not relate the Veteran's frontoethmoid recess mucosal thickening to his naval service and history of working near welding fumes. Dr. T.T. stated he could "not equate [the Veteran's] recent, relatively up to date sinus findings on CT scan with his past military work history." In June 2011, Dr. T.T. noted that he could "find no definite association [between the Veteran's] military work history and [his] mild chronic sinus disease." In November 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The Veteran reported that during service he worked with welders as a fire suppressor. He would work in constrained, limited spaces with welders, breathing in the fumes from cutting bulkheads with a heliarc. He stated that the paint covering the bulkhead were the biggest problem, because the paint "made it so bad because it would burn your eyes and your breathing." (Hearing transcript, p. 6). He stated that he began to have breathing problems in service, and that he continues to have them today. He also noted that the reason there was a ten-year gap in his treatment (referring to his March 2011 statement of 30-years history of nasal problems) was because he did not have insurance when he was first discharged from service, so he self-medicated for ten years before seeking treatment. He further testified that he has had no other exposure to environmental toxins, and he has not suffered any injuries to his nose since service. Notably the Veteran believed that he was discharged from service, and not provided a separation physical, because he was not an American citizen. The service records indicate that he was discharged due to persistent sleepwalking. In October 2012, the Veteran was afforded a VA nasal examiner. The examiner noted the Veteran reported a history of decreased nasal airflow for "approximately 20 years," and that his symptoms began in 1969 during service. A CT scan taken in conjunction with the examination revealed mild frontal and sphenoid sinus disease. A nasal endoscopy revealed bilateral mildly erythematous inferior turbinates. The examiner noted the Veteran had a long history of nasal obstruction and rhinitis complaints, as well as a history of exposure to welding fumes in poorly ventilated areas. The examiner noted the Veteran does not suffer from nasal scarring. He opined that the Veteran's nasal disorders were not related to service because the first documented complaint of obstruction was from 1976. In November 2012, a different VA evaluator provided an addendum opinion regarding the Veteran's nasal disorders. The evaluator noted the Veteran's statements that he "had '30 years' of nasal issues," and his ongoing treatment for allergic rhinitis. The evaluator opined that it was unlikely the Veteran's nasal disorders began in service because there is no documentation of treatment in or shortly after service. The evaluator noted that asbestos does not cause nasal symptoms. He noted that while toxic chemicals can inflame nasal passageways, the Veteran indicated a "30-year" history of symptoms. The evaluator also noted that after so many years "one would have expected much more severe findings" than his CT evidence of mild sinus disease. The evaluator noted that it would be mere "speculation to state if military service was specifically responsible for his nasal symptoms and previously reported nasal obstruction." In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the undersigned, having considered the evidence of record and particularly the testimony given by the Veteran during his Board hearings, finds the Veteran's statements about continuity of symptoms from service to the present to be credible. The Board notes that the Veteran indicated on his claim that his nasal disability began in 1976, and that he reported a 30-year history of nasal "problems" in 2011. He has also testified that his nasal symptoms began in service and continued after service, but that he was unable to receive treatment for his symptoms for numerous years due to a lack of insurance. Again in 2012, the Veteran stated that he suffered from nasal symptoms for 20 years and that his symptoms began in service. It appears the Veteran has difficulty assigning the correct number of years between the present day and his service, but he does continue to repeat that his symptoms began in service. The Board finds the Veteran's explanation for the lack of documented medical treatment is reasonable given the circumstances. The Veteran's history has been reasonably consistent throughout the appeal. The Veteran has also argued that his inhalation of fumes during service caused his nasal problems. His private physician indicated that they cannot provide a positive link between his in-service exposure to fumes and his current nasal symptoms. Nevertheless, the standard for VA opinion, however, is not a definite link, but whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. The 2013 evaluator noted it would be mere speculation to assign a link between his in-service exposures and his current symptoms suggesting that there is a possibility of a relationship. In light of the medical possibility of an etiologically relationship combined with the Veteran's credible report of history of continuous symptomatology, the Board finds that the evidence is in relative equipoise, and that reasonable doubt will be resolved in the Veteran's favor. As such, entitlement to service connection for the Veteran's nasal disorders, to include inferior turbinate hypertrophy, allergic rhinitis and anosmia, is warranted. ORDER Entitlement to service connection for a nasal disorder, to inferior turbinate hypertrophy, allergic rhinitis and anosmia is granted. REMAND Unfortunately, a remand is required in regards to the Veteran's increased rating claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The claims file contains July 2011 audiogram results in an uninterpreted graph form. On remand, a VA audiologist should interpret the graph into auditory threshold decibel results. Additionally, it does not appear that the July 2011 results were considered by the 2012 VA examiner. It appears that the Veteran's hearing loss has increased between January 2010 and December 2010, and again between December 2010 and October 2012. Additionally, during the October 2012 VA examination, the Veteran's right ear hearing loss met the standard for hearing loss under 38 C.F.R. § 3.385. As the hearing loss regulations include a chart which provides a hearing loss rating based upon bilateral hearing loss, and the Veteran has indicated a desire for service connection for right ear hearing loss, the claim should be remained for an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. The AMC should have a VA audiologist interpret the July 2011 private audiogram results. The audiologist should interpret graphical data and word recognition scores. The audiologist should comment on whether speech testing was performed with the Maryland CNC, if possible. 2. The Veteran should be scheduled for an additional VA audio examination. All indicated tests and studies are to be performed. The examination must include puretone thresholds and the Maryland CNC speech discrimination test. Prior to the examination, the claims folder and electronic medical records must be made available for review. The examiner should comment on the Veteran's July 2011 private hearing test results, as well as the changes in his hearing spanning from his 2010 to his 2012 tests. If the examiner determines that the speech recognition scores are not appropriate, then the examiner should provide an explanation. 3. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. As a claim to reopen a claim of entitlement for right ear hearing loss may affect the Veteran's overall hearing loss rating, that issue should also be determined prior to any issue returning before the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs