Citation Nr: 1338091 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-05 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a sinus disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2012 when they were remanded for additional development. The matter of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA compensation purposes. 2. A sinus disorder was not manifested in service or in the first post-service year, and the preponderance of the evidence is against a finding that the Veteran's current sinus disorder is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1132, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a sinus disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1132, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication. A December 2005 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. An April 2007 letter also informed him of degree of disability and effective date criteria. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, and post-service treatment records. Notably, in January 2012 correspondence, the Veteran indicated that there was no more outstanding evidence to secure. In addition, he was afforded adequate VA examinations. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases, including organic diseases of the nervous system, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing Loss For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) in service was wheel vehicle mechanic. His decorations and awards include the National Defense Service Medal and the Marksman Badge for the M-16. The Veteran's service treatment records are silent for complaints, treatment or a diagnosis relating to hearing loss. On September 1975 service separation examination, the Veteran's ears were normal on clinical evaluation. Puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 0 LEFT 0 0 0 N/A 0 In his February 2008 VA Form 9, the Veteran reported that he was exposed to frequent loud noise during his active service. On January 2012 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 20 20 LEFT 20 20 20 25 15 Maryland CNC word list recognition scores were 94 percent in each ear. The diagnosis was normal hearing. In this case, there is no competent evidence of hearing loss in either ear for VA purposes at any time either in service or at present. The relevant question at issue is whether the Veteran has a hearing disability at present, as defined by 38 C.F.R. § 3.385, so as to meet the criteria for service connection for defective hearing. The Veteran was examined by VA and the diagnostic findings from the audiological examination in January 2012 failed to show hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The current VA examiner diagnosed the Veteran with normal hearing in each ear, and the audiological findings on VA examination did not show an auditory threshold greater than 25 decibels at any of the relevant frequencies or a speech recognition score less than 94 decibels in either ear. Thus, the findings do not satisfy the criteria for hearing loss for VA purposes. 38 C.F.R. § 3.385. Given the lack of competent diagnostic evidence showing that the Veteran has a hearing disability in either ear at present, as that term is defined in 38 C.F.R. § 3.385, the claim for hearing loss must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Sinus Disorder The Veteran asserts that his sinus disorder is related to his active duty service. The Veteran's service treatment records include a November 1974 report noting his complaint of headaches for a week and pain in his stomach. He denied a cold or sinus problem. On physical examination, his lungs were clear. The impression was a mild virus infection. In March 1975, the Veteran complained of general malaise, relating he was suffering from a headache, sinus congestion, and a cough. On physical examination, there was wheezing in the right lower lobe. The impression was flu syndrome. In May 1975, the Veteran complained of nausea, a stuffy nose, headache, and left ear ache. Left ear inflammation was also noted. On September 1975 service separation report of medical examination, the Veteran's nose and sinuses were normal on clinical evaluation. Post-service evidence includes a November 2005 letter from Dr. M.M. Jones that noted the Veteran was currently on medication for his chronic allergic rhinitis. In his February 2008 VA Form 9, the Veteran reported that his sinus problems began during his active service and that he has had sinus problems since his separation from service. On January 2012 VA examination, the Veteran reported that sometimes when he blows his nose very strongly he bleeds. He also reported he has postnasal discharge, and that sometimes his ears ache. It was noted he is allergic to dust and pollen. His symptoms are worse in the spring months. His current medications include a nasal spray used two times per day. On physical examination, the Veteran's septum was slightly deviated. There was no nasal blockage. It was noted that there was known sinus tenderness. EKG revealed chronic rhinitis. X-rays of the sinuses revealed maxillary antral sinusitis. In a March 2012 VA examination addendum report, the examiner noted that the Veteran suffered a respiratory infection in 1974 during service. However, after review of the claims file, the examiner opined that it was less likely than not the Veteran's sinusitis was related to his active duty. The examiner based his conclusion on the fact that there was only one episode of mild viral upper respiratory infection while on active duty. In this case, there is no evidence that a sinus disorder was manifested in service or in the initial year following the Veteran's discharge from active duty. Post-service evidence shows the first mention of a sinus disorder in November 2005. As such, service connection for a sinus disorder on the basis that it became manifest in service and persisted is not warranted. What remains for consideration is whether in the absence of manifestation in service and/or post-service recurrence of symptoms, the Veteran's sinus disorder may nonetheless somehow otherwise be related to his service. Post-service treatment records note the diagnosis of a sinus disorder, but there is no competent evidence in the record to suggest that the disorder is or may be related to the Veteran's service. No medical professional has ever suggested that the Veteran's sinus disorder was related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion. The matter of a nexus between a current disability and a sinus disorder is a question that is beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis. Hickson v. West, 12 Vet. App. 247, 253 (1999). The only competent evidence in the record is that of the March 2012 VA examiner's opinion wherein the examiner opined that it was less likely than not the Veteran's sinus disorder was related to his active service. Such opinion was provided after review of the Veteran's claims file, interview and physical examination of the Veteran, and was provided by a professional competent to opine as to the etiology of his sinus disorder. On this basis, the Board finds that the March 2012 VA examination opinion is the most probative evidence of record, and is against the Veteran's claim for service connection for a sinus disorder. While the Veteran is competent to report that he had sinus problems, he is not competent to diagnose a sinus disorder, a diagnosis that is based on the results of diagnostic testing, or opine as to the etiology of the disorder. See Jandreau, 492 F.3d at 1377 n.4. Thus, the Veteran's assertions are not competent or sufficient. The weight of the competent medical evidence demonstrates that the Veteran's sinus disorder began many years after his active service, and was not caused by any incident of service. The Board thus finds that the preponderance of the evidence is against service connection. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hearing loss is denied. Service connection for a sinus disorder is denied. REMAND The Veteran also seeks entitlement to service connection for hypertension. In January 2012, the Board remanded the matter for additional development. After a review of the claims file, the Board finds that further development is necessary for proper adjudication of the claim. The Veteran was afforded a VA examination in January 2012 to determine whether his current hypertension was related to his active service. On January 2012 VA examination, the Veteran stated that his hypertension began during service, and that he began receiving treatment for his hypertension three years after his active service. The diagnosis was longstanding poorly controlled hypertension. In a March 2012 VA examination addendum report, the examiner opined that the Veteran's hypertension was less likely than not related to his active service, noting that there was no documentation of hypertension on review of the claims file. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board finds that the January 2012 VA examination and March 2012 opinion are inadequate as it does not appear that the opinion was based on a full review of the Veteran's service treatment records. As noted in the Board's January 2012 remand, the Veteran's July 1973 service entrance examination report shows his blood pressure was 150/94. However, on his service separation examination report, his blood pressure was 130/80. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). On remand, an examination report addendum must be obtained that addresses the elevated blood pressure reading in the Veteran's service entrance examination report. Accordingly, the case is REMANDED for the following action: 1. After physically or electronically associating any pertinent, outstanding records with the claims folder, obtain an addendum to the VA examination report from January and March 2012 regarding the claim for service connection for hypertension. The Veteran's claims file should be provided to the examiner for review prior to completion of the opinion. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's current hypertension is related to or had its onset in service or developed within a year of his discharge from active duty. The examiner is asked to specifically comment on the significance of the elevated blood pressure reading in the Veteran's July 1973 service entrance examination report. In offering the opinion, the examiner must specifically acknowledge and discuss the Veteran's competent report of treatment for hypertension within three years after his separation from service. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. 2. Then readjudicate the issue on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs