Citation Nr: 1338280 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-15 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for ear infections. 2. Entitlement to service connection for hearing loss of the right ear. 3. Entitlement to service connection for restless legs. 4. Entitlement to service connection for loss of hair. 5. Entitlement to an initial compensable rating for a deviated septum. 6. Entitlement to service connection for a right shoulder disability. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for a traumatic brain injury. 9. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from November 1977 to October 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in December 2011 and May 2012 issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issues of entitlement to service connection for a right shoulder disability, tinnitus, a TBI, and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a chronic disability that is manifested by an ear infection. 2. Puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) have been no higher than 10, 10, 10, 15, and 15 (decibels) dB, respectively, for the right ear and speech recognition scores have been found to be invalid in determining the Veteran's right ear hearing loss. 3. A restless leg disability is not shown by competent evidence to have been incurred in or aggravated by service. 4. A chronic hair loss disability is not demonstrated by the evidence of record. 5. The Veteran has a deviated septum with partial blocking of the right nasal passage, but competent evidence does not show 50 percent obstruction of both nasal passages or complete obstruction on one side; there is no obstruction of the nasal passage on the left. CONCLUSIONS OF LAW 1. The criteria for service connection for an ear infection have not been met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & 2012); 38 C.F.R. §§ 3.303 (2013). 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 3. The criteria for service connection for restless legs have not been met. 38 U.S.C.A. §§ 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & 2012); 38 C.F.R. § 3.303 (2013). 4. The criteria for service connection for loss of hair have not been met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & 2012); 38 C.F.R. § 3.303 (2013). 5. The criteria for an initial compensable rating for a deviated septum have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6502 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's service connection claims, the RO provided pre- adjudication VCAA notice by letter dated in March 2011. The Veteran was notified of the type of evidence necessary to substantiate a claim of service connection, namely, evidence of a current disability; evidence of an injury or disease in service or an event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization, VA would obtain any such records on his behalf. The VCAA notice also included the provisions for assigning an effective date and for the degree of disability. As for the content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). The claim for a higher rating for a deviated septum arises from the grant of service connection in the May 2012 rating decision. Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, VA and private treatment records. The Veteran was afforded VA examinations for right ear hearing loss, hair loss and his deviated septum in October 2011. The Board has reviewed the examination reports and finds them adequate because the VA examiner considered the Veteran's history and described the current findings in sufficient and detail so that the Board's review is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board notes that the Veteran has not been afforded VA examinations to determine the nature and etiology of his claimed ear infection and restless legs disability. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). The standards of McClendon are not met with regard to these claimed disabilities as the evidence of record does not show the Veteran suffered "an event, injury or disease in service," or indicate "that the claimed disability or symptoms may be associated with the Veteran's service." As there is no indication of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be demonstrated. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis and hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's personnel records demonstrate that he served on Camp Lejeune between 1978 and 1979. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id., at p. 6. The National Academy of Sciences ' National Research Council (NRC) published its report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen diseases were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure, including kidney cancer and renal toxicity. VBA Training Letter 11-03 (Revised) (November 29, 2011), Appendix B. Of the issues considered presently before the Board, the Veteran has asserted that his claimed ear infections, loss of hair and restless legs are related to exposure to toxins in Camp Lejeune. These disorders are not among the fourteen enumerated diseases identified in the VBA Training Letter cited above. Of note, however, the list of fourteen diseases is not an exhaustive list. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the weight and credibility of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the weight and credibility of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts Service personnel records demonstrate that the Veteran was served as a corrections specialist. On induction examination, including an audiogram, in October 1977, the Veteran gave no history of ear trouble. Initial testing of the right ear appears to have been inaccurate. On re-evaluation the right ear decibel thresholds at the tested frequencies of 500, 1000, 2000, and 4000 Hz were 10, 5, 5, and 10, upon re-testing. In March 1980, the Veteran was treated following complaints of hearing loss to the right ear after using a q-tip. An assessment of cerumen (wax) impaction was provided. An ear infection was not noted. On an audiogram on separation examination in October 1980 the decibel thresholds at 500, 1000, 2000, and 4000 Hz were 10, 0, 0, and 10 in the right ear. An ear infection was not noted. At an October 2011 VA audiology examination, the Veteran denied a history of ear infections. He reported that he had to turn things up louder to hear them. An audiogram showed that the decibel thresholds at: 500, 1000, 2000, 3000, and 4000 Hz were 10, 10, 10, 15, and 15. Speech recognition was 84 percent in the right ear. The examiner noted that the use of the speech discrimination score was not appropriate due to language difficulties, cognitive problems, inconsistent speech discrimination scores, etc. which made the combined use of puretone average and speech discrimination scores in appropriate. The diagnosis was normal hearing. In a September 2012 statement, the Veteran explained that personnel records demonstrated that he had ear infections during service and he asserted that this was due to a toxic substance and related to showering at Camp Lejeune. He stated that this "cleared up a little" when he went to Okinawa. Analysis 1. Ear Infections The Veteran asserts that his ear infection is related to service, to include as due to exposure to contaminants in the water in Camp Lejeune. Service treatment records are silent as to ear infections, noting trouble hearing but not infections or disorders of the ear. This is evidence against the Veteran's current assertion that he had ear infections in service. What is most significant here, is the fact that at no time during the pendency of this appeal has a chronic ear disorder been demonstrated. In fact, at his October 2011 VA examination, the Veteran denied having ear infections. As a layperson, the Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1377). A diagnosis of an ear infection falls outside the realm of common knowledge of a lay person, as it is generally not capable of direct lay observation. In other words, it is not a simple medical condition. Furthermore, there is no contemporaneous medical diagnosis of chronic ear infections in the record, and there were no ear symptoms noted or reported in service that have been currently diagnosed as an ear infection by a medical professional. Accordingly, the Veteran's unsupported lay statement indicating that he currently has a chronic disability manifested as an ear infection, and that it is causally related to his military service and any exposure to toxins therein, is neither competent nor probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Pain or symptoms alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Clinical demonstration of a current chronic disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, service connection for ear infections is not warranted as an ear infection disability is not demonstrated by the evidence of record. The preponderance of the evidence is against the claim for service connection for ear infections; there is no doubt to be resolved; and service connection is not warranted. 2. Right Ear Hearing Loss The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). A higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. In this case, the audiograms during service do not show impaired hearing as the thresholds were 10 decibels or below at the tested frequencies. The in-service audiograms also do not show a hearing loss disability under 38 C.F.R. § 3.385, as the thresholds for the tested frequencies were not 40 decibels at any one frequency and there were not three frequencies at 26 decibels or greater. 38 C.F.R. § 3.303(a). A right ear hearing loss under 38 C.F.R. § 3.385 is not affirmatively shown to have manifested to a compensable degree within one year of service discharge. Therefore, a right ear hearing loss disability may not be presumed to have manifested in service. 38 C.F.R. §§ 3.307 and 3.309. The October 2011 VA examiner determined that the Veteran displayed normal hearing sensitivity at the time of discharge and normal hearing at present. The Veteran did demonstrate a speech recognition score of less than 94 percent in the right ear; however, the examiner clearly stated that speech recognition scores could not be relied upon in the Veteran's case. Therefore, as noted by the VA examiner, normal hearing in the right ear is demonstrated by the only reliable source, the Veteran's audiogram findings. Although the Veteran is competent to describe symptoms of impaired hearing, a hearing loss disability under 38 C.F.R. § 3.385 is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence of a hearing loss disability under 38 C.F.R. § 3.385 therefore is medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). As there is no competent lay or medical evidence of a current right ear hearing loss disability under 38 C.F.R. § 3.385, there is no valid claim for service connection under the applicable theories of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim of service connection, there is no reasonable doubt to be resolved and service connection is not warranted. 3. Restless Legs The Veteran's service treatment records are silent as to any treatment for, or diagnosis of, restless legs. Service treatment records dated in September 1979 show that the Veteran sustained a nasal fracture following a karate tournament. There is no record of any further head injury, loss of consciousness, or leg injury whatsoever. In a September 2009 statement, the Veteran suggested that his restless legs and leg shaking was either due to injuries sustained during a karate tournament or secondary to exposure to contaminants in the water at Camp Lejeune or Camp Pendleton. VA medical center records show diagnosis and treatment for restless leg syndrome. The records do not contain any medical opinions as to the etiology of restless leg syndrome. Restless leg syndrome was not affirmatively shown to have been present during a period of active service. 38 C.F.R. § 3.303(a). Restless leg syndrome is not listed as a chronic disease in 38 C.F.R. § 3.309(a), thus chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are not applicable. Nonetheless, service connection may be granted for disability shown after service, when all of the evidence shows that it was incurred in service. 38 C.F.R. § 3.303(d). There is absolutely no competent medical evidence in the claim file which suggests that there is any correlation between the Veteran's restless leg syndrome and his military service. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition to describing symptoms of restless legs, which is capable of lay observation, the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran, as a layperson, is not competent to provide an opinion regarding the etiology of his restless leg syndrome as determining the etiology of this disorder is a complex question that requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And it is not argued or shown that he is otherwise qualified through specialized education, training, or experience to so do. The Veteran was not provided with a VA examination to determine the etiology of his restless leg syndrome. However, as there is no evidence of a chronic leg condition or an acute leg injury in service; no competent evidence showing that any current restless leg syndrome may be linked to active service or a service-connected disability; and no reported continuity of symptomatology, an examination is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against the claim for service connection for restless leg syndrome; there is no doubt to be resolved; and service connection is not warranted. 4. Loss of Hair Service treatment records demonstrate that the Veteran reported a loss of hair in March 1978. Alopecia was noted. In a September 2012 statement, the Veteran asserted that he had a documented history of alopecia in 1978 in Camp Lejeune, North Carolina, and that this was due to contaminated water exposure. On VA examination in October 2011, the Veteran reported that in 1978, he was stationed in Camp Lejeune and had hair loss at that time when his hair fell out on the right side of his head. He stated that he was given cream to treat this and it took about a year to it to improve. He reported no current problems. The examiner noted that the Veteran had alopecia which had since resolved with no current hair loss. The examiner further stated that hair loss was less likely than not incurred in or caused by service (noting that there was no current hair loss and that therefore no nexus opinion was necessary). The examiner further stated that hair loss was not a disease potentially with exposure to contaminants present in the Camp Lejeune water supply. As above, clinical demonstration of a current chronic disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim for service connection for hair loss; there is no doubt to be resolved; and service connection is not warranted. II. Increased Rating for a Deviated Septum Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Rating Criteria The deviated nasal septum is rated noncompensable under Diagnostic Code 6502. Under Diagnostic Code 6502, the criteria for 10 percent rating are traumatic deviation of the nasal septum, resulting in 50 percent obstruction of the nasal passages of both sides of the nose, or complete obstruction on one side of the nose. Analysis The Veteran was examined in October 2011. At that time, it was noted that the Veteran had a deviated septum diagnosed in 1979. The Veteran explained that he had a fracture of the nose during a karate tournament and that he could not breathe. Surgery was performed; the Veteran reported no current problems breathing. The VA examiner noted that there was not a deviated nasal septum, not at least 50 percent obstruction of the nasal passage on both sides due to trauma and there was not complete obstruction due to traumatic septal deviation. There were no scars secondary to surgery. X-rays demonstrated no displaced nasal bone fractures and a relatively midline septum. It was noted that the Veteran's nose condition did not impact his ability to work. A January 2012 private treatment note reported a septal deviation. The Veteran reported nasal obstruction in the right nostril which was mild to moderate. The private physician noted moderate symptoms, trouble breathing and a septal deviation. It was noted that the Veteran would benefit from a septoplasty. As the evidence has not demonstrated traumatic deviation of the nasal septum, resulting in 50 percent obstruction of the nasal passages of both sides of the nose, or complete obstruction on one side of the nose, a compensable rating for the Veteran's deviated septum is simply not warranted. While the Veteran's private physician notes some obstruction in the right side, a 50 percent obstruction of the bilateral nasal passages is not shown. A complete obstruction on either side of the nose is also not demonstrated. There is no impact on the Veteran's ability to work shown and the Veteran's deviated septum is appropriately rated as noncompensable. Because the criteria for a compensable rating were not met during any discrete period, a "staged rating" is not warranted. Hart, 21 Vet. App. 505. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased evaluation for a deviated septum is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria reasonably describe the Veteran's symptomatology. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to service connection for an ear infection is denied. Entitlement to service connection for hearing loss of the right ear is denied. Entitlement to service connection for restless legs is denied. Entitlement to service connection for loss of hair is denied. Entitlement to an initial compensable rating for a deviated septum is denied. REMAND Right Shoulder Disability Service treatment records show that the Veteran presented at an emergency room in May 1980 with muscle pain in his shoulder. A history of shoulder dislocation was noted and the initial clinical impression was rule out right shoulder dislocation. On observation his right clavicle was protruding and his range of motion was poor. X-rays were within normal limits and the Veteran was given a diagnosis of deltoid contusion. The Veteran's upper extremities were reportedly normal at separation. At an October 2011 VA examination, the Veteran explained that he fell on his right shoulder and dislocated it during a karate tournament. He also reported he had surgery on the right clavicle after separation from the military. He denied any other injury to the shoulder. X-rays of the right shoulder showed the absence of the medial third of the right clavicle. The VA examiner's diagnoses were: history of dislocation (1979); age-related degenerative joint disease of the bilateral shoulders with decreased range of motion (2011); and right clavicle injury (1979 or 1980). The examiner concluded that the Veteran's shoulder condition was less likely than not due to or aggravated by service. The examiner's rationale was that there were no pertinent findings at separation and no documentation of treatment from 1980 until 2010. The examiner also explained that, as the Veteran had degenerative joint disease in both shoulders, it was most likely that his osteoarthritis was age-related. An October 2011 private treatment note from Dr. J.T. shows a clavicular deformity. X-rays, in pertinent part show a possible old fracture of the proximal humerus, to be correlated clinically with history. In addition, the clavicle appeared shortened which was noted to be of uncertain significance but perhaps due to prior trauma, post-surgical change or congenital process. It was further noted that there was deformity of the proximal humerus, likely due to an old fracture. In January 2012 Dr. Kubina, a private physician, indicated that the Veteran's fracture occurred 33 years occur during military service. A rationale was not provided. The VA examination report fails to adequately discuss whether the Veteran has a current right clavicle deformity that is etiologically related to his noted clavicle injury in service. Furthermore, the VA examiner based her opinion (with respect to a right shoulder condition other than degenerative joint disease) on the absence of documented treatment after service. However the Veteran reports, and the private medical records at the very least suggest, that he did receive treatment after service, including surgery. The Board may not accept a medical opinion based solely on the absence of documentation in the record. Rather, an examiner must take into account a Veteran's reports of injuries and symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). A new examination and opinion are necessary. TBI and Tinnitus The Veteran asserts that he has residuals of a TBI and tinnitus secondary to a kick in the head and ear during a karate tournament in Okinawa, Japan. He further asserts that his tinnitus is due to noise exposure while serving as a corrections officer. Service treatment records demonstrate that the Veteran was in a karate tournament and was reportedly attacked by other members in September 1979. The records reveal that he sustained a nasal fracture; no injury to the brain or ears was noted. In a September 2012 statement, the Veteran asserted that he had sustained a TBI during a karate tournament as he was kicked in the head, face, ear, and back of the head until he lost consciousness. He asserted that he also sustained a concussion. The Veteran has not been afforded a VA examination to evaluate his alleged TBI and to determine whether he has any current residuals, to include tinnitus. On remand, this must be accomplished. McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) (West 2002) and 38 C.F.R. § 3.159(c)(4) (2013). The Veteran was afforded a VA examination in October 2011 to evaluate tinnitus. During his examination, the Veteran reported that he has had tinnitus since 1980. The examiner determined that the Veteran's condition was less likely than not incurred in or aggravated by service, noting that tinnitus was not a disease potentially associated with exposure to contaminants in Camp Lejeune water supply. The examiner also concluded that it was less likely than not that the Veteran's tinnitus was caused by or the result of military noise exposure due to the fact that the Veteran displayed normal hearing sensitivity. Here, the VA examiner improperly dismissed the Veteran's lay statements that he had tinnitus since 1980. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (an account in-service injury/treatment and symptomatology, within lay observation, must be considered in the evaluation of his claims.) Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Headaches In a September 2012 statement, the Veteran explained that he had intermittent headaches for several years. He explained that the blockage of air going through his nostrils led him to have these headaches. The Veteran complained of headaches during a VA medical center visit in January 2012; it was noted that a septoplasty was recommended for a deviated septum. The Veteran has not been provided a VA examination for headaches as secondary to a deviated septum, nor has he received notice under VCAA as to how secondary service connection may be established. Additional development is therefore in order. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf records of treatment pertaining to his claimed right shoulder disability, TBI, tinnitus, and headaches. Also, obtain complete copies of any relevant VA treatment records not on file dated from March 2012 to the present, and associate these records with the claims file. 2. Ensure VCAA compliance with the duty to notify as it pertains to 38 C.F.R. § 3.310 with regard to the Veteran's claim for service connection for headaches. 3. Afford the Veteran an appropriate VA examination to determine the etiology of his claimed right shoulder disability, TBI, tinnitus, and headaches. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. a) The examiner must indicate whether it is at least as likely as not that any of the Veteran's right shoulder disabilities had onset in service, or are otherwise causally related to service, to include the noted right shoulder findings in service; or manifested within a year of discharge. b) The examiner is to rule in or rule out a TBI in service associated with injuries the Veteran reports as having occurred in service (e.g. karate injuries sustained in 1979). If the examiner determines that the Veteran suffered a TBI in service, then state whether he currently suffers from any residual TBI symptoms, to include headaches and tinnitus. c) The examiner must indicate whether it is at least as likely as not that the Veteran's tinnitus had onset in service, or is otherwise causally related to service, to include reported noise exposure in service. d) The examiner must indicate whether it is at least as likely as not that the Veteran's reported headaches are caused or aggravated by his service-connected deviated septum. In rendering these opinions, the examiner must consider the Veteran's lay statements regarding the incurrence of his disabilities, in addition to his statements regarding the continuity of symptomatology since service. The examiner is further advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training. 4. After the above development has been completed, readjudicate the claims. If any of the benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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 is 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). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs