Citation Nr: 1330861	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-16 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder.

2.  Entitlement to service connection for a bilateral foot disorder.

3.  Entitlement to service connection for a low back disorder.

4.  Entitlement to service connection for bilateral otitis externa.

5.  Entitlement to service connection for head, nose and facial pain, claimed residuals of a broken nose.

6.  Entitlement to service connection for a deviated nasal septum, claimed residual of a broken nose.

7.  Entitlement to service connection for headaches, claimed residual of a broken nose.
8.  Entitlement to service connection for dizziness, claimed residual of a broken nose.

9.  Entitlement to service connection for tinnitus, claimed residual of a broken nose.

10.  Entitlement to service connection for sinusitis, claimed residual of a broken nose.

11.  Entitlement to service connection for sleep apnea, claimed residual of a broken nose.

12.  Entitlement to service connection for hypertension, claimed as secondary to sinusitis and sleep apnea.

13.  Entitlement to service connection for bilateral hearing loss, claimed as secondary to upper respiratory infections.  


REPRESENTATION

Appellant represented by:	Penelope E. Gronbeck, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel



INTRODUCTION

The Veteran had active military service from September 1960 to September 1961.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Roanoke, Virginia.  

In October 2012, the case was remanded to afford the Veteran his requested hearing.  In March 2013, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the claims file. 

The Veteran has submitted new evidence in the form of medical records, which relates to the issues on appeal.  The Veteran specifically waived his right to have the RO consider this evidence in the first instance.  38 C.F.R. § 20.1304(c) (2012).  

The issues of service connection for a psychiatric, bilateral foot and low back disorders and a deviated septum being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  By an unappealed January 1988 rating decision, the RO denied service connection for a nervous condition.  

2.  Evidence received after the January 1988 denial relates to unestablished facts necessary to substantiate the claim of service connection for a nervous condition and raises a reasonable possibility of substantiating the underlying claim.

3.  Bilateral otitis externa was not present during service and currently diagnosed bilateral otitis externa did not develop as a result of any incident during service.
4.  The Veteran has not had a disorder (other than sinusitis and headaches) manifested by head, nose and facial pain at any time since filing his claim for compensation.

5.  Headaches were not present during service and a currently diagnosed headache disorder did not develop as a result of any incident during service.

6.  A disorder manifested by dizziness was not present during service and currently diagnosed subjective vertigo did not develop as a result of any incident during service.

7.  Tinnitus was not present during service and currently diagnosed tinnitus did not develop as a result of any incident during service.

8.  Sinusitis not present during service and currently diagnosed sinusitis did not develop as a result of any incident during service.

9.  Sleep apnea not present during service and currently diagnosed sleep apnea did not develop as a result of any incident during service.

10.  Hypertension not present during service, was not manifest within one year of discharge from service, and currently diagnosed hypertension did not develop as a result of any incident during service.

11.  Bilateral hearing loss not present during service, was not manifest within one year of discharge from service, and currently diagnosed bilateral hearing loss did not develop as a result of any incident during service.


CONCLUSIONS OF LAW

1.  The RO's January 1988 denial of service connection for a nervous condition is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104 (2013); 38 C.F.R. § 20.200, 20.302, 20.1103 (2012).  

2.  Evidence received since the final January 1988 rating decision is new and material.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013).  

3.  Bilateral otitis externa was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

4.  A disorder other than sinusitis and headaches manifested by head, nose and facial pain was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

5.  Headaches were not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

6.  Dizziness was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

7.  Tinnitus was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

8.  Sinusitis was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

9.  Sleep apnea was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

10.  Hypertension was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).

113.  Bilateral hearing loss was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice 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.  Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran was notified in letters dated in March 2008, July 2009, February 2010, December 2010 and January 2011 regarding the type of evidence necessary to establish his claims.  He was instructed how to establish service connection on both direct and secondary bases.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  All of the letters also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records, and also secured examinations in furtherance of his claims.  Pertinent VA examinations were obtained in May 2010 (residuals of broken nose), July 2010 (residuals of broken nose) and October 2010 (tinnitus and bilateral hearing loss).  38 C.F.R. § 3.159(c)(4).  The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues of residuals of a broken nose, tinnitus and bilateral hearing loss adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

The Board finds that a medical opinion on the question of service connection for hypertension is not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, as described in detail below, there is no evidence indicating that the Veteran suffered an event, injury or disease in service or during any pertinent presumptive period or that hypertension may be related to his military service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).  Furthermore, as the Board is denying service connection for sinusitis and sleep apnea, to the extent that the Veteran claims hypertension is secondary to those disorders, a medical opinion is not necessary as to secondary service connection.  Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet.

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  

The Veteran was also provided with a hearing related to his present claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran fully described why he believed service connection was warranted for his claimed disabilities.  Furthermore, the record was held open for the Veteran to submit additional evidence, which he did.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

II.  Analysis

	A.  New and Material Evidence

Service connection for a nervous condition was denied in January 1988 because the evidence showed that the Veteran had a congenital developmental abnormality that preexisted his service and was not aggravated by his service.  In other words, evidence of record did not reflect a nexus between a nervous condition and his active service.  After receiving notice of the January 1988 decision, the Veteran did complete an appeal of the denial of this issue.  Later, in February 2008, however, he applied to have his claim reopened.

A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC).  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012); 38 C.F.R. §§ 19.129, 19.192 (2012).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to agency decision makers.  "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Here, relevant evidence of record at the time of the January 1988 rating decision consisted of the Veteran's STRs, personnel records, lay statements dated from July 1975 to October 1975 and the Veteran's contentions, including his testimony at an October 1975 hearing.  The Veteran's STRs showed that he had a clinically normal psychiatric system on enlistment examination in September 1960.  In his report of medical examination, the Veteran denied symptoms such as depression or excessive worry and nervous trouble of any sort.  In June 1961, he wanted an appointment to mental hygiene; he refused to discuss the reason and was belligerent.  His June 1961 separation examination revealed an abnormal psychiatric system; he was shown to have immaturity reaction and passive aggressive personality.  In his report of medical examination, he answered yes to frequent nightmares (worried about getting out of service) and depression or excessive worry (same); he denied nervous trouble of any sort.  The Veteran had a psychiatric examination in July 1961; he was diagnosed with immaturity reaction and passive aggressive personality.  A record in August 1961 showed that he was diagnosed with emotional instability reaction, manifested by manipulative behavior, impaired judgment and immaturity.  It was opined to have existed prior to service.  He was recommended for an undesirable discharge in August 1961.  The Veteran was diagnosed with a chronic severe passive aggressive reaction manifested by rebellion to authority, poor interpersonal relationships and passive methods of obstructionism in September 1961.  

The Veteran's testimony shows that he had legal trouble before service for stealing something.  October 1975 Hearing Transcript (H.T.) at 2.  He testified about having problems as a child of growing up and trying to adjust.  Id. at 4.  He disputed talking to any psychiatrists in service.  Id. at 6.  

Neither the Veteran's STRs, hearing testimony nor lay statements indicated that he had a psychiatric disorder that was not a congenital developmental abnormality or that a preexisting psychiatric disorder was aggravated by his military service.  

Accordingly, at the time of the denial of the claim for service connection for a nervous condition in January 1988, the claims folder contained no competent evidence of a nexus to the Veteran's military service.  Thus, the RO, in January 1988, denied service connection for a nervous condition.  The Veteran did not appeal the RO's decision, and that denial became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103.  

In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011).  In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362 (2011).  Here, no additional evidence pertinent to the issue of service connection for a nervous condition was received prior to the expiration of the appeal period.  The January 1988 rating decision is thus final.  

The relevant evidence received since the denial consists of VA treatment records dated from July 1980 through July 2010, a private psychiatric evaluation in April 2013 and the Veteran's contentions, including his testimony at the March 2013 hearing.  VA treatment records dated form July 1980 to April 1987 show psychiatric treatment.  A July 1980 treatment record shows that the Veteran was diagnosed with sexual deviation.  He reported making obscene phone calls since he was a teenager that continued to the present.  He complained of nervousness at that time.  A December 1984 psychiatric evaluation showed that the Veteran was diagnosed with dysthymic disorder, atypical psychosexual dysfunction; and atypical paraphilia (telephone scatologia).  He was diagnosed with depression in April 1987.  More recent treatment records show diagnoses of anxiety in September 2004 and depression in June 2005.  None of these records indicate that a psychiatric disorder was related to the Veteran's military service.  

At his March 2013 hearing, he testified that depression started as soon as he arrived in service.  March 2013 Hearing Transcript (T.) at 31.  A private psychiatric evaluation dated in April 2013 shows that it was the examiner's opinion that the Veteran's current psychological conditions neither began nor were originally caused by events during military service.  Thus, his current conditions were not service related.  Preexisting problems were likely exacerbated by the stresses of military service, for which he was unprepared.  The examiner noted that the Veteran served for ten years in a reserve unit and was able to have a full career as a minister until age-appropriate retirement.  The examiner also opined that while the Veteran continued to suffer from psychological problems that became apparent during military service, those appeared to have been in place prior to joining the service.  

The evidence of record obtained since the January 1988 rating decision shows that the Veteran has been diagnosed with anxiety and depression in addition to his reports of the onset of his depression being in service.  Furthermore, a private examiner indicated that the Veteran's military service likely exacerbated his preexisting problems.  Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for a psychiatric disorder; namely a current diagnosis that is not a congenital developmental abnormality and that any preexisting disability may have been aggravated by the Veteran's military service.  Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim.  Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim.  The underlying service connection issue is addressed in the remand below.  

	B.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1131.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Hypertension and bilateral hearing loss are included in 38 C.F.R. § 3.309.  Additionally, chronic diseases may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013).

The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131.  In the absence of proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

	1.  Bilateral Otitis Externa

The Veteran contends that he has bilateral otitis externa that is related to his military service.  Specifically, he contends that his ears have itched for many years and that it is caused by many sinus and upper respiratory infections.  See, e.g., January 2011 statement.  

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current bilateral otitis externa became manifest or otherwise originated during his period of service or is otherwise related to his military service.

There is no finding that bilateral otitis externa was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed clinically normal ears.  In his September 1960 report of medical examination, he denied symptoms such as ear trouble and running ears.  His June 1961 separation examination again revealed clinically normal ears.  In his June 1961 report of medical examination, he again denied symptoms such as ear trouble and running ears.

There is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his ears.  There is also no indication that bilateral otitis externa had its onset in service.  There is no indication in any of his STRs that he was treated for symptoms associated with any currently diagnosed bilateral otitis externa.  Although the Veteran was treated for sinusitis in July 1961 and he contends that bilateral otitis externa is due to sinusitis, no bilateral otitis externa was noted in July 1961.  There is also no indication of a diagnosis of bilateral otitis externa in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of bilateral otitis externa occurred during service.  

The totality of the evidence fails to show that the onset of any current bilateral otitis externa occurred during the Veteran's service.  No medical professional has reported that the onset of any current bilateral otitis externa began during the Veteran's military service.  

The Veteran's pertinent post-service treatment records during this appeal show an active prescription for ear drops to treat bilateral otitis externa.  However, none of his records contain any medical opinion regarding the etiology of his bilateral otitis externa.  Furthermore, none of the Veteran's treatment records show that he reported having bilateral otitis externa in service or that he incurred an event, injury or disease to his ears in service.  At a VA examination in July 2010, the examiner noted that there was no injury to the ears during an in-service assault.  The Veteran's medical history showed that there was no history of trauma to the ear.  The onset date of his ear discharge was not known.  The examiner opined that there was no active ear disease.  The only diagnosis was a subjective vertigo with associated dizziness, which the examiner opined was not due to service.  The examiner's opinion regarding dizziness is discussed in detail below.  

The probative medical evidence simply fails to adequately establish any nexus between any current bilateral otitis externa and the Veteran's military service.  No medical professional has provided any opinion relating current bilateral otitis externa to the Veteran's military service.  To the extent that the Veteran contends that his bilateral otitis externa is related to sinusitis, as discussed herein, the Board is denying service connection for sinusitis.  Therefore, Board will not address whether a causal relationship exists between bilateral otitis externa and sinusitis.  

Furthermore, to the extent that the Veteran's contentions indicate a continuity of bilateral otitis externa symptomatology since service, the Board is cognizant of the Federal Circuit's recent holding in Walker v. Shinseki, 708 F.3d 1331.  In that decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Bilateral otitis externa is not a chronic condition as per 38 C.F.R. § 3.309(a).  Additionally, treatment records dated in the 1980s do not show bilateral otitis externa, outweighing the Veteran's assertions of having bilateral otitis externa since his military service.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's bilateral otitis externa is not related to his military service.  Without competent evidence of an association between current bilateral otitis externa and his active duty, service connection for bilateral otitis externa is not warranted.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral otitis externa falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer).  The Veteran's own assertions as to etiology have no probative value.

Without evidence of the onset of bilateral otitis externa in service or competent evidence of an association between current bilateral otitis externa and the Veteran's active duty, service connection for bilateral otitis externa is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral otitis externa.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral otitis externa is denied.  See 38 U.S.C.A §5107 (West 2002 & Supp. 2012).

	2.  Head, Nose and Facial Pain

The Veteran contends that he has head, nose and facial pain that was incurred in service.  Specifically, he contends that his pain resulted from being assaulted in service.  See, e.g., T. at 9.  As the Veteran also has claims of service connection for a deviated septum, headaches and sinusitis addressed below, the Board will focus on pain not associated with those claimed disorders here.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has a current disabling disorder manifested by head, nose and facial pain.  In this case, no competent medical evidence has been presented to show that the Veteran has a current disability manifested by head, nose and facial pain that is the result of an in-service injury.  

The Veteran's September 1960 enlistment examination showed clinically normal head, face, neck and nose.  His September 1960 report of medical examination showed that he denied symptoms such as swollen or painful joints; frequent or severe headaches; nose trouble; arthritis or rheumatism; and bone, joint or other deformity.  The June 1961 separation examination also revealed clinically normal head, face, neck and nose.  His June 1961 report of medical examination showed that he again denied symptoms such as swollen or painful joints; frequent or severe headaches; nose trouble; arthritis or rheumatism; and bone, joint or other deformity.  In July 1961, he was hit while in the stockade.  His nose was swollen and bent slightly.  The Veteran was diagnosed with nose bleed and broken nose; he was to have no duty for one day.  There is no indication in his STRs that he was diagnosed with a disorder manifested by head, nose and facial pain following the in-service assault.   

Post-service treatment records show no diagnosis of a disability manifested by head, nose and facial pain since he filed his claim for compensation.  A September 2009 active problem list shows that the Veteran has osteoarthritis in his right knee; arthritis in other joints was not indicated.  The Veteran was afforded a VA examination in July 2010 to determine what residuals, if any, he had as a result of the in-service assault.  Pertinent diagnoses included subjective vertigo; sinus pressure headaches; no evidence of acute or chronic sinusitis; and upper respiratory infections by history.  No disorder manifested by head, nose and facial pain other than sinus pressure headaches was diagnosed.  

The Veteran testified at his March 2013 hearing regarding having pain.  T. at 9.  However, his current treatment records fail to show a disorder manifested by head, nose and facial pain.  An August 2013 addendum to the April 2013 psychiatric evaluation shows that the Veteran had been diagnosed with a pain disorder and that it was the result of an assault in-service.  However, pain itself is not a disability for which service connection can be granted.  As such, the Board concludes that the evidence of record does not show the presence of a current disability manifested by head, nose and facial pain.  To the extent that the Veteran's complaints are associated with headaches and claimed sinusitis, the Board will address those claims below.  

Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.)

The Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim.  The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame.

Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the diagnosis of a disorder manifested by head, nose and facial pain falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  The Veteran's own assertions as to diagnosis have no probative value.
Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of a head, nose and facial pain disability.  See 38 U.S.C.A. §§ 1110, 1131; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for head, nose and facial pain.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for head, nose and facial pain is denied.  See 38 U.S.C.A §5107.

	3.  Headaches

The Veteran contends that he has headaches that are related to his military service.  Specifically, he contends that his headaches are due to an in-service assault.  See, e.g., T. at 9.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current headaches became manifest or otherwise originated during his period of service or are otherwise related to his military service.

There is no finding that a chronic headache disorder was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed a clinically normal neurologic system.  In his September 1960 report of medical history, he denied symptoms such as frequent or severe headache.  The Veteran complained of headaches in November 1960; the diagnosis was common cold.  He complained of dizziness and severe headaches in December 1960.  There was no diagnosis of a headache disorder.  His June 1961 separation examination again revealed a clinically normal neurologic system.  In his June 1961 report of medical history, he answered yes to having symptoms such as frequent or severe headache.  Mild headaches and dizziness, n/s was noted.  The Veteran complained of blackouts in July 1961; there were no headaches preceding attacks.  

As noted above, the evidence shows that the Veteran was hit while in the stockade in July 1961.  The record shows his nose was swollen and slightly bent and that he had a headache.  It also shows that he was well oriented on neurological examination.  The record reflects that he had a slight nose bleed.  It was noted that there was some malingering and/or ignorance on sensory examination.  The record states that there were no objective neurological signs; gait and reflexes were normal; and no pathologic reflexes.  The record shows that the Veteran's pupils were round, regular and equal and reacted to light.  The record also shows that the Veteran had consensual reflex movement; and fine movements were normal.  The Veteran was diagnosed with nose bleed and broken nose.  He was to have no duty for one day.  

The Veteran submitted his own copy of the July 1961 record showing the broken nose.  On the bottom of that copy, there is a "note" with the Veteran's claims file number.  This notation indicates that the Veteran's "nose was broken, misaligned, bloody, yet took them three hours to let me go to the dispensary while I was fainting and passing out."  As this copy of the record includes the Veteran's claims file number, which he would not have yet had while in service, the Board concludes that the notation added to this copy is not indicative of what actually happened in service.  Rather, this appears to the Veteran's own report of the assault.  

The Veteran's accounts for the assault vary greatly from what is actually documented in his STRs.  At an October 1975 hearing, the Veteran testified that he was placed in the stockade and told that "we're gonna make you get that hair cut."  October 1975 Hearing Transcript (H.T.) at 5.  He testified that he was placed in the stockade and that they "wrestled me all around."  Id.  He testified that he was stripped of all his cloths, handcuffed, thrown down in the back of a chair, and his hair was cut off, throwing him in the cell.  Id.  The Veteran did not mention losing consciousness or incurring a head injury such as a traumatic brain injury.  He did not testify regarding any other assaults in the stockade.  Specifically, the Veteran did not indicate being assaulted in the latrine.  In this regard, when the Veteran initially filed a claim for service connection for a psychiatric disorder, he did not mention an in-service assault as claimed during the current appeal.  Moreover, statements made with regard to obtaining an upgraded discharge in the 1970s do not contain reports of an assault as now claimed by the Veteran.  

During this current appeal, the Veteran's assertions indicate that he was severely assaulted.  At his March 2013 hearing, the Veteran testified that he was in the latrine when somebody entered and when the Veteran turned around to see what was happening and "all of a sudden, he hit me right in the nose."  T. at 6.  He testified that "he knocked me out, and the next thing they was putting these things under my nose to make me come back."  Id.  He testified that his nose was bleeding and he was "just beat up."  Id.  The Veteran testified that he could not keep conscious.  Id.  The attack occurred when the Veteran had either just come out of the evening meal or was getting ready to go.  Id.  He could not remember, "but it was along in the evening and it was way up into the night before they actually took me to the hospital or dispensary."  The Veteran thought he had a concussion.  Id. at 7.  The Veteran did not mention being taken away by ambulance at his March 2013 hearing.  However, in August 2009 statements, the Veteran reported that was transported by ambulance to the hospital at Fort Bliss.  

The Board doubts the Veteran's credibility in reporting the in-service assault.  Credibility is an adjudicative, not a medical determination.  The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  Here, the Veteran's inconsistencies in reporting the incident as well as the contemporaneous service records outweigh his credibility. 

As discussed above, the Veteran has not been consistent with his reports.  No mention was made of this reported injury at his hearing in 1975.  His reports during this appeal have shown that he was taken by ambulance to a hospital, yet he was just taken to a dispensary after several hours in other reports.  Furthermore, the service records do not support the Veteran's assertion of what happened.  There is no indication in his STRs that he lost consciousness as claimed.  Considering the normal neurologic findings shown in the records, the Board is unable to conclude that the Veteran incurred an injury as severe as injury as what he claims.

The Board finds that the objective evidence of record at the time of the Veteran's service outweighs the credibility of his currently reported in-service injury.  Such records are more reliable, in the Board's view, than the Veteran's unsupported assertion of events now over four decades past.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran].  In this case, the Veteran's service records fail to show that the assault resulted in more than a broken nose and nose bleed.  Therefore, the Board concludes that the evidence outweighs a finding that the in-service assault was as serious as reported by the Veteran.  

There is no indication in the Veteran's STRs that he incurred a head injury beyond a broken nose.  As already discussed above, neurologic examination at the time of the assault was normal.  Severe head trauma as claimed by the Veteran is not supported by the evidence of record.  There is also no indication that a headache disorder had its onset in service.  Although the Veteran's STRs document two instances of headaches, one instance showed no diagnosis of a chronic disability and the other record shows that he had a common cold.  There is no indication in any of his STRs that he was treated after December 1960 for a headache disorder.  While the Veteran answered yes to headaches in his June 1961 report of medical history, the Board reiterates that he had a clinically normal neurologic system at that time.  There is no indication of a diagnosis of chronic headache disorder in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of a chronic headache disorder occurred during service.  

The totality of the evidence fails to show that the onset of any current headache disorder occurred during the Veteran's service.  No medical professional has reported that the onset of any current headache disorder began during the Veteran's military service.  

The Veteran's pertinent post-service treatment records during this appeal have not shown any opinion relating headaches to his military service.  At a VA examination in July 2010, the Veteran reported headaches due to deviated septum.  He reported that he was knocked out in service.  The Veteran reported having sinus pressure headaches when he had sinusitis.  He was diagnosed with sinus pressure headaches, not due to a neurologic problem.  The examiner opined that the Veteran's headaches were not caused by or a result of the broken nose while in service.  The examiner noted that the Veteran had headaches documented in 1960, prior to the assault.  The examiner also noted that there was no documented continuity of care from discharge in 1961 to 1999.  The current evaluation and X-rays/CT scan of head did not validate a deviated septum of degree that would cause the Veteran's reported problems.  

The probative medical evidence simply fails to adequately establish any nexus between any current headaches and the Veteran's military service.  No medical professional has provided any opinion relating current headaches to the Veteran's military service, to include the in-service assault.  The VA examiner provided a negative nexus opinion regarding the headaches and the in-service assault.  Furthermore, for the reasons set forth above, the Veteran's STRs contradict his assertions of the severity of the assault and the Board finds the Veteran's reports therefore lack probative value.  No medical professional has opined that the documented headaches in 1960 were the onset of a currently diagnosed headache disorder.  The VA examiner even noted the Veteran's headaches in 1960, yet did not opine that the Veteran's current headaches were related to those shown in-service.  

Furthermore, to the extent that the Veteran's contentions indicate a continuity of headache symptomatology since service, the Board is cognizant of the Federal Circuit recent holding in Walker v, 708 F.3d 1331.  Headaches are not a chronic condition as per 38 C.F.R. § 3.309(a).  Additionally, treatment records dated in the 1980s do not show headaches, outweighing the Veteran's assertions of having headaches since the in-service broken nose.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's headaches are not related to his military service.  Without competent evidence of an association between current headaches and his active duty, service connection for headaches is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of headaches falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of a chronic headache disorder in service or competent evidence of an association between current headaches and the Veteran's active duty, service connection for headaches is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for headaches.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for headaches is denied.  See 38 U.S.C.A §5107.

	4.  Dizziness

The Veteran contends that he has dizziness that is related to his military service.  Specifically, he contends that dizziness is due to sinusitis.  See, e.g., T. at 15.  As discussed in detail below, the Veteran claims that sinusitis is due to the in-service assault.    

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current dizziness became manifest or otherwise originated during his period of service or is otherwise related to his military service.

There is no finding that a disorder manifested by dizziness was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed a clinically normal neurologic system.  In his September 1960 report of medical examination, he denied symptoms such as dizziness or fainting spells.  The Veteran complained of dizziness and severe headaches in December 1960.  There was no diagnosis of a vertigo or other disorder manifested by dizziness.  His June 1961 separation examination again revealed a clinically normal neurologic system.  In his June 1961 report of medical examination, he answered yes to symptoms such as dizziness or fainting spells.  Mild headaches and dizziness, n/s was noted.  
The evidence shows that the Veteran was hit while in the stockade.  For the reasons set forth above, the Board concludes that the Veteran's assertions of the severity of this assault are not credible.  Also as noted above, neurological examination showed that he was well oriented at the time of the assault.  It was noted that there was some malingering and/or ignorance on sensory examination.  There were no objective neurological signs.  His gait and reflexes were normal.  There were no pathologic reflexes.  Pupils were round, regular and equal and reacted to light.  Consensual reflex movement.  Fine movements were normal.  The Veteran was diagnosed with nose bleed and broken nose.  He was to have no duty for one day.  There is no indication in the record pertaining to this assault that the Veteran had dizziness, vertigo or any other disorder manifested by dizziness.  

There is no indication in the Veteran's STRs that he incurred a head injury beyond a broken nose.  As already discussed above, neurologic examination at the time of the assault was normal.  Severe head trauma as claimed by the Veteran is not supported by the evidence of record.  There is also no indication that a disorder manifested by dizziness had its onset in service.  Although the Veteran's STRs document one complaint of dizziness, no diagnosis of a chronic disorder was made.  There is no indication in any of his STRs that he was treated after December 1960 for dizziness.  While he reported dizziness in June 1961 report of medical examination, there is no indication of a diagnosis of chronic disorder manifested by dizziness in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of a chronic disorder manifested by dizziness occurred during service.  

The totality of the evidence fails to show that the onset of any current disorder manifested by dizziness occurred during the Veteran's service.  No medical professional has reported that the onset of any current disorder manifested by dizziness began during the Veteran's military service.  

The Veteran's pertinent post-service treatment records during this appeal reflect complaints of dizziness.  In April 2009, he reported occasional dizziness mainly when trying to take a bath.  He again reported dizziness in June 2009; at that time, he reported that he thought it was due to sinus congestion.  The Veteran again reported frequent dizziness from his sinuses in July 2009.  None of his treatment records relate dizziness to his military service.   At a VA examination in July 2010, the Veteran was diagnosed with subjective vertigo.  The examiner opined that the Veteran's dizziness was not caused by or a result of the broken nose while in service.  The examiner noted that the Veteran had dizziness documented in 1960, prior to the assault.  The examiner reported that other documentation in all notes reviewed reveal that the Veteran was morbidly obese prior to 1995 with weight over 300 pounds, he had diabetes and hypertension poorly controlled and was on CPAP due to sleep apnea related to morbid obesity.  His history contributed significantly to his complaints of repeated infections and was the likely cause of any dizziness.  The examiner also noted that there was no documented continuity of care from discharge in 1961 to 1999.  The current evaluation and X-rays/CT scan of head did not validate a deviated septum of degree that would cause the Veteran's reported problems.  

The probative medical evidence simply fails to adequately establish any nexus between any current dizziness and the Veteran's military service.  No medical professional has provided any opinion relating current dizziness to the Veteran's military service, to include the in-service assault.  The VA examiner provided a negative nexus opinion regarding the dizziness and the in-service assault.  Furthermore, for the reasons set forth above, the Veteran's STRs contradict his assertions of the severity of the assault and the Board finds the Veteran's reports therefore lack probative value.  No medical professional has opined that the documented dizziness in 1960 was the onset of a currently diagnosed disorder manifested by dizziness.  The VA examiner even noted the Veteran's dizziness in 1960, yet did not opine that the Veteran's current subjective vertigo was related to the dizziness shown in-service.  While the Veteran's treatment records show that he related dizziness to sinusitis, for the reasons set forth below, the Board is denying service connection for sinusitis.  

Furthermore, to the extent that the Veteran's contentions indicate a continuity of dizziness symptomatology since service, the Board is cognizant of the Federal Circuit recent holding in Walker v, 708 F.3d 1331.  Dizziness and vertigo are not chronic conditions as per 38 C.F.R. § 3.309(a).  Additionally, treatment records dated in the 1980s do not show dizziness, outweighing the Veteran's assertions of having dizziness since the in-service injury.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's dizziness is not related to his military service.  Without competent evidence of an association between current dizziness and his active duty, service connection for dizziness is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of dizziness falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of dizziness in service or competent evidence of an association between current dizziness and the Veteran's active duty, service connection for dizziness is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for dizziness.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for dizziness is denied.  See 38 U.S.C.A §5107.

	5.  Tinnitus

The Veteran contends that he has tinnitus that is the result of runway noise or being physically assaulted in service.  See, e.g., February 2010 statement.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current tinnitus became manifest or otherwise originated during his period of service or is otherwise related to his military service.
The Veteran's September 1960 enlistment examination revealed clinically normal ears.  In his September 1960 report of medical examination, he denied symptoms such as ear trouble.  His June 1961 separation examination again revealed clinically normal ears.  In his June 1961 report of medical examination, he again denied symptoms such as ear trouble.  However, the reported assault occurred after his June 1961 discharge examination.

For the reasons set forth above, while the Veteran's STRs show an assault in service, the Board finds the Veteran's reports of the assault lack probative value.  His nose was swollen and slightly bent.  Neurological examination showed that he was well oriented.  It was noted that there was some malingering and or ignorance on sensory examination.  There were no objective neurological signs.  His gait and reflexes were normal.  There were no pathologic reflexes.  Pupils were round, regular and equal and reacted to light.  Consensual reflex movement.  Fine movements were normal.  The Veteran was diagnosed with nose bleed and broken nose.  He was to have no duty for one day.  The STR showing treatment for the assault does not confirm that the Veteran injured his ears or incurred any head injury beyond a nose injury.

There is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his ears in service.  In this regard, the Veteran has also contended acoustic trauma from runway noise.  His DD 214 shows that his military occupational specialty was that of a draftsman mechanic.  At an October 2010 VA examination, the Veteran reported that he worked as an airborne plotter and was stationed with the Air Force.  He reported that in that capacity, he was exposed to noise from planes.  As a civilian, he worked in construction and as a minister for 45 years.  He did not report a history of hunting and/or use of firearms on a recreational basis.  The examiner commented that the Veteran spent one year on active duty service primarily working inside a building that was near a flight line.  It was the examiner's opinion that that would not typically be a noise hazardous environment.  The examiner's opinion that the Veteran's active duty would not typically be a noise hazardous environment is uncontradicted.  The examiner also opined that the Veteran's tinnitus was less likely as not due to any active duty noise exposure.  Based on the examiner's opinion, the evidence fails to show in-service acoustic trauma.  

As for the Veteran's contention that the in-service assault resulted in an injury causing tinnitus, for the reasons set forth above, the Veteran is not credible as to the extent of the in-service injury.  Furthermore, the October 2010 VA examiner also opined that the tinnitus was less likely as not related to the Veteran's broken nose.  The examiner noted that there was no evidence in the STRs that the Veteran reported tinnitus or was treated for tinnitus while on active duty.  There is also no indication that his current tinnitus had its onset in service.  There is no indication in any of his STRs of a chronic tinnitus disability.  The Veteran's contemporaneous service records fail to show that the onset of any current tinnitus occurred during service.  

In reaching this conclusion, the Board acknowledges the Veteran's reports of having tinnitus in service.  He is competent to report experiencing ringing in his ears during service.  However, the Veteran's contemporaneous service records weigh against a finding that tinnitus had its onset in service.  For the reasons set forth above, the Board has determined that the Veteran did not incur in-service acoustic trauma, nor did the July 1961 assault result in an ear injury.  While the Veteran answered yes to several symptoms on his June 1961 report of medical examination, he specifically denied having any ear problems.  Moreover, while VA treatment records beginning in 1980 are of record, those records fail to show complaints of tinnitus.  The fact that the Veteran sought medical treatment in the 1980s, yet did not complain of tinnitus, weighs against a finding that he had tinnitus since service.  

The probative medical evidence simply fails to adequately establish any nexus between any current tinnitus and the Veteran's military service.  No medical professional has provided any opinion relating current tinnitus to the Veteran's military service, to include the in-service assault.  The VA examiner provided a negative nexus opinion regarding tinnitus and the Veteran's military service, to include the in-service assault.  

In sum, the probative medical evidence of record shows that the Veteran's tinnitus is not related to his military service.  Without competent evidence of an association between current tinnitus and his active duty, service connection for tinnitus is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of tinnitus falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of tinnitus in service or competent evidence of an association between current tinnitus and the Veteran's active duty, service connection for tinnitus is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for tinnitus is denied.  See 38 U.S.C.A §5107.

	6.  Sinusitis

The Veteran contends that he has sinusitis that is the result of being physically assaulted in service.  See, e.g., T. at 9.  To the extent that the Veteran is arguing that sinusitis is due to a deviated septum, the Board is remanding the issue of service connection for a deviated septum.  However, as discussed in detail below, a VA examiner has indicated that sinusitis is not due to deviated septum.  Therefore, as the outcome of the issue of service connection for a deviated septum would not affect this issue, the Board will proceed to adjudicate service connection for sinusitis.  In other words, even if service connection for a deviated septum is granted, as the evidence shows that sinusitis is not due to a deviated septum, these issues are not inextricably intertwined and can be decided independent of each other.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current sinusitis became manifest or otherwise originated during his period of service or is otherwise related to his military service.

The Veteran's September 1960 enlistment examination revealed clinically normal sinuses.  In his September 1960 report of medical examination, he denied symptoms such as sinusitis.  His June 1961 separation examination again revealed clinically normal sinuses.  In his June 1961 report of medical examination, he again denied symptoms such as sinusitis.  However, the reported assault occurred after his June 1961 discharge examination.

As already discussed in detail above, the evidence shows that the Veteran was hit while in the stockade.  The pertinent facts pertaining to this assault will not be repeated.  There is no indication in the STRs that the Veteran incurred an injury to his sinuses in the assault.  In fact, there is no indication in the Veteran's STRs that he incurred any event, injury or disease to his sinuses.  The Veteran was treated for sinusitis in July 1961, after the assault.  However, although he was treated once for sinusitis in service, there is no indication in his STRs of a chronic sinusitis disability.  The Veteran's contemporaneous service records fail to show that the onset of any current sinusitis occurred during service.  

The totality of the evidence fails to show that the onset of any current sinusitis occurred during the Veteran's service.  No medical professional has reported that the onset of any current sinusitis began during the Veteran's military service.  

The pertinent medical evidence that has been presented shows that the Veteran has been treated for chronic sinusitis since at least April 1999.  There is no medical evidence of record suggesting that the Veteran's sinusitis is related to his military service.  The Veteran was afforded a VA examination in July 2010.  He was diagnosed with no evidence of acute or chronic sinusitis on exam or X-rays.  The examiner opined that sinusitis was not caused by or the result of broken nose in service.  The examiner noted that the hit in the nose was documented in July 1961 with nose bleed and broken nose; no X-ray confirmation.  The examiner noted that there was one episode diagnosed as sinusitis in July 1961 after the hit and the Veteran was treated with nose drops.  The examiner also noted that here was no documented chronicity of care from discharge in 1961 to 1999.  The examiner opined that the current evaluation and X-rays/CT scan of the had did not validate a deviated septum of degree that would cause the current problems and there was no evidence of current or chronic sinusitis.  No medical professional has opined that sinusitis is related to the Veteran's military service, to include the in-service assault.  The probative medical evidence simply fails to adequately establish any nexus between any current sinusitis and the Veteran's military service.  

Furthermore, to the extent that the Veteran's contentions indicate a continuity of dizziness symptomatology since service, the Board is cognizant of the Federal Circuit recent holding in Walker v, 708 F.3d 1331.  Sinusitis is not a chronic condition as per 38 C.F.R. § 3.309(a).  Additionally, treatment records dated in the 1980s do not show sinusitis, outweighing the Veteran's assertions of having sinusitis since the in-service injury.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's sinusitis is not related to his military service.  Without competent evidence of an association between current sinusitis and his active duty, service connection for sinusitis is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of sinusitis falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of sinusitis in service or competent evidence of an association between current sinusitis and the Veteran's active duty, service connection for sinusitis is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for sinusitis.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for sinusitis is denied.  See 38 U.S.C.A §5107.

	7.  Sleep Apnea

The Veteran contends that he has sleep apnea that is the result of being physically assaulted in service.  See, e.g., T. at 13.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current sleep apnea became manifest or otherwise originated during his period of service or is otherwise related to his military service.

There is no finding that sleep apnea was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed all clinically normal systems.  In his September 1960 report of medical examination, he denied symptoms associated with sleep apnea such as frequent trouble sleeping.  His June 1961 separation examination again revealed all clinically normal systems.  In his June 1961 report of medical examination, he again denied symptoms associated with sleep apnea such as frequent trouble sleeping.  However, the reported assault occurred after his June 1961 discharge examination.

As the Board has already discussed the reported assault in detail above and has found the Veteran to lack credibility with regards to his reporting of the assault, the Board will not readdress that here.  

At his March 2013 hearing, the Veteran testified that after the assault, he started snoring and had trouble sleeping.  Id. at 13.  However, there is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his respiratory and pulmonary systems.  There is also no indication that sleep apnea had its onset in service.  There is no indication in any of his STRs that he was treated for symptoms associated with any currently diagnosed sleep apnea.  There is also no indication of a diagnosis of sleep apnea in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of sleep apnea occurred during service.  

The totality of the evidence fails to show that the onset of any current sleep apnea occurred during the Veteran's service.  No medical professional has reported that the onset of any current sleep apnea began during the Veteran's military service.  

The pertinent medical evidence that has been presented shows that the Veteran has been diagnosed with sleep apnea since at least April 1999.  None of his treatment records contain any opinion regarding the etiology of his sleep apnea.  The July 2010 examiner reported that the Veteran had sleep apnea related to morbid obesity.  The examiner opined that the Veteran's body habitus caused some obstruction in the airways.  There is no medical evidence of record suggesting that the Veteran's sleep apnea is related to his military service.  The probative medical evidence simply fails to adequately establish any nexus between any current sleep apnea and the Veteran's military service.  

To the extent that the Veteran's contentions indicate a continuity of symptomatology, the Board is cognizant of the Federal Circuit recent holding in Walker, 708 F.3d 1331.  Sleep apnea is not a chronic condition as per 38 C.F.R. § 3.309(a).  Additionally, treatment records dated in the 1980s do not show sleep apnea, outweighing the Veteran's assertions of having sleep apnea since the in-service injury.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's sleep apnea is not related to his military service.  Without competent evidence of an association between current sleep apnea and his active duty, service connection for sleep apnea is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of sleep apnea falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of sleep apnea in service or competent evidence of an association between current sleep apnea and the Veteran's active duty, service connection for sleep apnea is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for sleep apnea is denied.  See 38 U.S.C.A §5107.

	8.  Hypertension

The Veteran contends that he has hypertension that is related to his military service, to include being secondary to sinusitis and sleep apnea.  See, e.g., April 2008 and December 2010 statements.  For the reasons set forth above, the Board concludes that service connection for sinusitis and sleep apnea is not warranted.  Therefore, the Board will not address the Veteran's contentions regarding service connection as secondary to those disabilities.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current hypertension became manifest or otherwise originated during his period of service, within one year of discharge from service or is otherwise related to his military service.

There is no finding that hypertension was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed all clinically normal systems.  His blood pressure was 142/70.  In his September 1960 report of medical examination, he denied symptoms such as high blood pressure.  A record dated in December 1960 shows that his blood pressure was 140/90.  His June 1961 separation examination again revealed all clinically normal systems.  His blood pressure was 140/78.  In his June 1961 report of medical examination, he again denied symptoms such as high blood pressure.  The Veteran was shown to have blood pressure of 120/80 in August 1961.

There is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his cardiovascular system.  There is also no indication that hypertension had its onset in service.  For rating purposes, VA defines hypertension as diastolic blood pressure predominantly 90 mm. or greater.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2013).  The recorded blood pressures in service were not predominantly 90 mm. or greater.  The Veteran had one reading where his diastolic pressure was 90 in December 1960; however, subsequent blood pressure recordings show that it was less than 90.  There is no indication that the Veteran was diagnosed with hypertension during active service.  The Veteran's contemporaneous service records fail to show that the onset of hypertension occurred during service.  

The totality of the evidence fails to show that the onset of any current hypertension occurred during the Veteran's service.  No medical professional has reported that the onset of any current hypertension began during the Veteran's military service.  

There is also no indication that the Veteran's hypertension was manifest to a degree of 10 percent or more within one year of his discharge in September 1961.  The pertinent medical evidence that has been presented shows that the Veteran has been diagnosed with hypertension since at least April 1999.  Records prior to that which show the Veteran's blood pressure fail to show either a diagnosis of hypertension or that his diastolic blood pressure was predominantly 90 or greater.  For example, the Veteran's blood pressure was 130/81 in July 1981; 138/80 in October 1981; 130/88 in December 1981; 120/100 in June 1982; and 180/100 in March 1987.  Although his diastolic blood pressure was greater than 90 in 1982 and 1987, there is no indication of a diagnosis of hypertension at that time.  Even if the Veteran did have hypertension as early as 1982, that is still over two decades after his discharge from service.  None of his treatment records contain any opinion regarding the etiology of his hypertension.  There is no medical evidence of record suggesting that the Veteran's hypertension is related to his military service.  No medical professional has opined that the Veteran's hypertension is related to his military service, to include being manifest to a degree of 10 percent or more within one year of discharge.  The probative medical evidence simply fails to adequately establish any nexus between any current hypertension and the Veteran's military service.  

To the extent that the Veteran reports a continuity of symptomatology, although hypertension is a chronic disability as per 38 C.F.R. § 3.309(a), the absence of elevated blood pressure readings until 1982 weighs against a finding of a continuity of symptomatology.  Therefore, the Veteran's contentions regarding a continuity of symptomatology cannot support a finding of a nexus.

In sum, the probative medical evidence of record shows that the Veteran's hypertension is not related to his military service.  Without competent evidence of an association between current hypertension and his active duty, service connection for hypertension is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of hypertension falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of hypertension in service or competent evidence of an association between current hypertension and the Veteran's active duty, service connection for hypertension is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for hypertension is denied.  See 38 U.S.C.A §5107.

	9.  Bilateral Hearing Loss 

The Veteran contends that he has bilateral hearing loss that is related to his military service, to include being secondary to upper respiratory infections and sinusitis.  See, e.g., August 2009 statement.  As service connection has not been granted for upper respiratory infections or sinusitis, the Board will not address these secondary service connection claims.  He also contends in-service acoustic trauma while stationed at an Air Force base.  See, e.g., February 2010 statement.

The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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.  

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current bilateral hearing loss became manifest or otherwise originated during his period of service, within one year of discharge from service or is otherwise related to his military service.

There is no finding that bilateral hearing loss was treated or diagnosed during service.  The Veteran's September 1960 enlistment examination revealed clinically normal ears.  He had hearing acuity of 15/15 bilaterally on whispered voice testing.  In his September 1960 report of medical examination, he denied symptoms such as ear trouble.  His June 1961 separation examination again revealed clinically normal ears.  He had hearing acuity of 15/15 bilaterally on whispered voice testing.  In his June 1961 report of medical examination, he again denied symptoms such as ear trouble.  

There is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his ears.  As discussed above when denying tinnitus, the Board concludes that the Veteran did not have in-service acoustic trauma.  There is no indication that the Veteran was diagnosed with bilateral hearing loss during active service.  The Veteran's contemporaneous service records fail to show that the onset of bilateral hearing loss occurred during service.  

The totality of the evidence fails to show that the onset of any current bilateral hearing loss occurred during the Veteran's service.  No medical professional has reported that the onset of any current bilateral hearing loss began during the Veteran's military service.  

There is also no indication that the Veteran's bilateral hearing loss was manifest to a degree of 10 percent or more within one year of his discharge in September 1961.  The pertinent medical evidence that has been presented shows that the Veteran has been diagnosed with bilateral hearing loss since an October 2010 VA examination.  At that examination, he reported that he had noticed a gradual decrease in his hearing for years.  The examiner noted that the only objective evidence in the Veteran's STRs regarding hearing was the whispered voice test; there were no audiometric test results for his active military service.  The examiner reported that whispered voice tests should not be used in the rating process; one of the major shortcomings was that the whispered voice test was not sensitive to high-frequency (noise-induced) hearing loss.  The examiner reported that after refuting the whispered voice test, there was no objective evidence in the military record to prove the presence of hearing loss during military service.  The Veteran stated that day that he felt that his hearing loss was due to either the noise to which he was exposed during active duty or his broken nose that occurred then.  The examiner opined that the current hearing loss was not conductive in nature and was therefore, not the result of eardrum scarring or fluid.  The examiner opined that the configuration and degree of loss was not typical of loss caused by head injury.  The examiner concluded that, for those reasons, it was less likely that the current hearing loss was caused by the Veteran's broken nose.

As for the Veteran's reported acoustic trauma, the examiner commented that the Veteran spent one year on active duty service primarily working inside a building that was near a flight line.  The examiner opined that that would not typically be a noise hazardous environment.  The examiner concluded that it was less likely as not that the Veteran's one year of active duty service caused his hearing loss.  
None of his treatment records contain any opinion regarding the etiology of his bilateral hearing loss.  There is no medical evidence of record suggesting that the Veteran's bilateral hearing loss is related to his military service.  The only medical opinion of record, that of the October 2010 examiner, shows that the Veteran's bilateral hearing loss is not related to his military service.  This opinion is uncontradicted.  The probative medical evidence simply fails to adequately establish any nexus between any current bilateral hearing loss and the Veteran's military service.  Furthermore, although bilateral hearing loss is a chronic disability as per 38 C.F.R. § 3.309 for which a continuity of symptomatology can be used to establish a nexus, the Veteran has not reported such continuity.  The Veteran reported noticing a gradual decrease in his hearing for years at the October 2010 VA examination; he did not report that the onset of his bilateral hearing loss began in service.

In sum, the probative medical evidence of record shows that the Veteran's bilateral hearing loss is not related to his military service.  Without competent evidence of an association between current bilateral hearing loss and his active duty, service connection for bilateral hearing loss is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of bilateral hearing loss falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of bilateral hearing loss in service or competent evidence of an association between current bilateral hearing loss and the Veteran's active duty, service connection for bilateral hearing loss is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied.  See 38 U.S.C.A §5107.

ORDER

New and material sufficient to reopen a previously denied claim for service connection for a psychiatric disorder has been received.  To this extent only, the appeal is granted.

Entitlement to service connection for bilateral otitis externa is denied.

Entitlement to service connection for head, nose and facial pain, claimed residuals of a broken nose is denied.

Entitlement to service connection for headaches, claimed residual of a broken nose is denied.

Entitlement to service connection for dizziness, claimed residual of a broken nose is denied.

Entitlement to service connection for tinnitus, claimed residual of a broken nose is denied.

Entitlement to service connection for sinusitis, claimed residual of a broken nose is denied.

Entitlement to service connection for sleep apnea, claimed residual of a broken nose is denied.

Entitlement to service connection for hypertension, claimed as secondary to sinusitis and sleep apnea is denied.

Entitlement to service connection for bilateral hearing loss, claimed as secondary to upper respiratory infections is denied.  



REMAND

Regrettably, a remand is necessary for further evidentiary development of the issues of service connection for psychiatric, bilateral feet and low back disorders and a deviated septum.  Regarding the issue of service connection for a psychiatric disorder, the evidence as discussed above when reopening the claim suggests that the Veteran had a pre-existing psychiatric disorder prior to his service.  To date, no VA examination has been afforded to the Veteran to determine whether he had a psychiatric disorder that clearly and mistakably pre-existed his service; and, if so, whether such disorder was permanently worsened by his service.  Therefore, a remand is necessary to afford the Veteran a VA examination.  

Turning to the issues of bilateral feet and low back disorders, the STRs show that he complained of left foot pain in October 1960; the diagnosis was moderate strained ankle and foot.  A January 1961 record shows that he had a sore back after picking up foot lockers.  Post-service treatment records show foot and low back complaints and the Veteran testified regarding having foot and low back problems.  Due to the Veteran having in-service foot and low back treatment, in addition to current complaints, a VA examination is necessary to determine whether the Veteran has bilateral foot and low back disorders that are related to his military service.  

As for the Veteran's claim of service connection for a deviated septum, his STRs show that he was diagnosed with a broken nose in-service.  Post-service treatment records in April 1999 and August 2009 show a diagnosis of a deviated septum.  A VA examination in May 2010 showed that there was no septal deviation on examination.  The examiner opined that there was no radiographic evidence of residual nasal bone deformities.  X-rays included in the examination report were reportedly negative.  A second VA examination in July 2010 again showed that there was no septal deviation on examination.  However, the report of X-rays at that time shows that there was "mild nasal septum deviation to the left."  In this case, it is not clear whether the Veteran has a deviated septum or not.  To the extent that he has been diagnosed with a deviated septum, no medical opinion has been provided.  Therefore, the Board concludes that another examination is necessary to ascertain whether the Veteran does in fact have a deviated septum; and, if so, whether it is due to the in-service assault.

The most recent VA treatment records from the VA Medical Center (VAMC) in Salem, Virginia are dated in January 2009.  On remand, records of any VA treatment that the Veteran received since then should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 

Accordingly, the case is REMANDED for the following action:

1.  After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment that the Veteran has recently received.  The Board is particularly interested in records of treatment that the Veteran may have received from the Salem VAMC.  If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file.  All such available reports should be associated with the claims folder.

2.  Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder that he may have.  His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.

The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer opinions as to the following questions:

a) Does the Veteran currently have a psychiatric disorder that was present during service?  If so, did the psychiatric disorder during service pre-exist his active duty?  If yes, the examiner must cite to the evidence of record to support that conclusion.

b) For each diagnosed psychiatric disorder opined to have pre-existed the Veteran's active duty, the examiner should then opine as to whether any pre-existing psychiatric disorder underwent a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease?

c) For each currently diagnosed psychiatric disorder opined to have not pre-existed the Veteran's active service, opine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disorder shown on examination had its clinical onset during the Veteran's military service or is otherwise related to such service.

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices.

3.  Accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed bilateral foot and low back disorders that he may have.  His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.

The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed bilateral foot and low back disorders are related to the Veteran's military service.  

The examiner's opinion should address the October 1960 foot treatment and January 1961 low back treatment.  

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices.

4.  Also, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed deviated septum that he may have.  His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.

The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed deviated septum is due to the in-service assault.   

The examiner's opinion should address the May 2010 and July 2010 examination findings that there was no deviated septum on examination as well as the July 2010 X-ray findings of "mild nasal septum deviation to the left."

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices.

5.  Ensure that the examination reports comply with (answer the questions posed in) this Remand.  If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate.

6.  Then, readjudicate the issues on appeal.  If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

The Veteran 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).



______________________________________________
MICHAEL MARTIN 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs