Citation Nr: 1616984 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 10-23 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for vertigo. 3. Entitlement to service connection for a disability manifested by left ear pain. 4. Entitlement to service connection for temporomandibular joint syndrome (TMJ). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2010, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In May 2013, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In August 2013, the Board remanded the above-captioned claims for further development. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss as defined by 38 C.F.R. § 3.385. 2. The Veteran's vertigo is not attributable to service, and an organic disease of the nervous system manifested by vertigo was not manifest within one year of the Veteran's separation from service. 3. The Veteran does not have a current left ear disability manifested by ear pain. Ear pain is attributable to non-service-connected TMJ. 4. The Veteran's TMJ is of congenital origin, and was neither aggravated by service nor subject to a superimposed injury or disease that caused additional disability during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2015). 2. The criteria for entitlement to service connection for vertigo have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 3. The criteria for entitlement to service connection for left ear pain have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 4. The criteria for entitlement to service connection for TMJ have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015);VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Bilateral Hearing Loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the Veteran's December 1974 entrance examination, no abnormalities of the ears were found and his hearing test did not depict hearing loss for VA purposes. As determined by the Board in August 2013, the Veteran subsequently experienced in-service acoustic trauma during service. See August 2013 Board decision involving tinnitus. Ear plugs were issued to him in August 1974 and October 1976. On his February 1978 separation examination, hearing loss for VA purposes was found in the right ear, but not the left. The Veteran was diagnosed with bilateral high frequency hearing loss. Shortly following service, a January 1983 VA treatment record indicates that the Veteran reported having left ear pain for one week. He was referred for a follow-up in ENT. A February 1983 VA treatment record indicates that the Veteran reported having pain and decreased hearing in the left ear and an occasional light-headed feeling. The assessment was normal hearing and normal middle ear examination. A February 1983 VA ENT consult record indicates that the Veteran had a normal ear exam and possible TMJ dysfunction. He reported having intermittent left ear pain and a popping sound in his ear. A March 1983 ENT record indicates that the Veteran had left ear pain and possible left TMJ pain. The assessment was TMJ versus musculoskeletal pain. He had no relief with Motrin. He was referred to oral surgery. An April 1983 VA oral surgery record indicates that the Veteran reported having pain and a click in the left TMJ. The assessment was probably interior derangement of the left TMJ. A May 1983 VA oral surgery treatment record indicates that the Veteran reported having left ear pain and popping. It was noted that an arthrogram showed anterior displacement without reduction. Surgery was recommended and the Veteran declined to undergo surgery. A November 1985 VA treatment record indicates that the Veteran reported having a bad ear ache on and off for 6 months. The impression was TMJ dysfunction and possible perforated tympanic membrane. On VA examination in May 1983, hearing loss for VA purposes was not shown. On VA examination in October 2007, while the examiner found mild high frequency sensorineural hearing loss and opined that it was at least as likely as not that the condition may have had its origin in active duty, hearing loss pursuant to the requirements of 38 C.F.R. § 3.385 was not shown. In June 2010 and October 2010 VA treatment records, an assessment of "hearing loss" was noted. However, the Veteran's auditory thresholds were not included so as to establish hearing loss under 38 C.F.R. § 3.385. In the October 2010 record, the provider further noted, "word recognition scores were excellent (92% right and 92% left) at a loud speech level (60dBHL)." Virtual VA Entry 10/31/13, p. 294. However, 38 C.F.R. § 3.385 mandates that the Maryland CNC Test be used to establish the required speech recognition scores, and there is no indication from the October 2010 entry that this test was conducted. On VA examination in October 2013, the Veteran reported 25 minutes late for his appointment and had no difficulty responding to questions during the history-taking segment of the evaluation. The examiner provided the following summary of the examination: Spondee thresholds obtained were 60dB in each ear and pure tone averages were 90dB in each ear. [The Veteran] was reinstructed on taking the hearing test and counseled regarding the inconsistencies in test results. Those inconsistencies were not resolved and are an indication of a non-organic component in [the Veteran's] hearing status. No hearing test results are reported and no opinions regarding hearing loss may be provided without resorting to mere speculation. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The Veteran is fully competent to report his symptoms, and has submitted credible statements as to his symptoms. However, the medical findings, as provided in the VA examination reports, directly address the criteria under which the Veteran's hearing loss disability is assessed. The Board is bound by the applicable law and regulations to mechanically compare the requirements of 38 C.F.R. §3.385 to the numeric designations from audiometric test results in determining whether there exists hearing loss for VA purposes. Here, there is no probative evidence to establish the presence of bilateral hearing loss for VA purposes. Where the evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In the absence of a current disability, the other elements of service connection need not be addressed and the claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Left Ear Pain On the Veteran's December 1974 entrance examination, no abnormalities of the ears were found, and he raised no related complaints on the accompanying Report of Medical History. Left ear pain was not documented during service. On his February 1978 separation examination, no abnormalities of the ears were found. As recounted above, the Veteran sought treatment in the 1980s for ear problems. As discussed, possible etiologies for the ear pain were TMJ and a possible perforated tympanic membrane. On VA examinations in May 1983 and October 2007, a disorder manifested by left ear pain was not found. In an April 2010 VA treatment record, ear pain was noted. However, a diagnosis pertaining to the left ear was not rendered. Rather, the Veteran was diagnosed with acute bronchitis. At the May 2013 hearing, the Veteran testified to experiencing continuous left ear pain since military service. Hearing Transcript, p. 6-7. On VA examination in October 2013, the examiner noted the lay contentions. A physical examination of the external ears and tympanic membranes was unremarkable. An oral examination demonstrated a marked overbite with crepitus of the left TMJ associated with mouth opening. The examiner stated that inflammation caused by TMJ is commonly a source of ear pain, and was the most likely the cause of the Veteran's ear pain in the absence of true ear pathology. The examiner found there was no evidence of a tympanic membrane perforation. Even if one was present, it would be unlikely to cause ear pain in the absence of infection. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim for service connection for a disorder manifested by left ear pain. Complaints of pain alone are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain 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.") There is no probative evidence contrary to the VA examiners' opinions, particularly that of the October 2013 examiner. The Board finds the report fully adequate for the purposes of adjudication. The Board has considered the Veteran's own assertions that he has a disorder manifested by left ear pain that is related to service. The Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the October 2013 VA examiner was a medical professional who reviewed the claims file and considered the reported history, including the Veteran's own lay assertions. The examiner, in providing the requested medical opinion, used his expertise in reviewing the facts of this case and determined that no current disorder manifested by left ear pain was present. Rather, the left ear pain was attributed to the non-service connected TMJ. As such, the Board finds the opinion the of October 2013 examiner to be more probative. The medical evidence outweighs the lay evidence. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (threshold considerations in weighing the probative value of medical opinions include the qualifications of the person opining, and most of the probative value from such opinions come from their reasoning). The most probative and credible evidence establishes that the appellant does not have a disorder manifested by left ear pain. Where the evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In the absence of a current disability, the other elements of service connection need not be addressed and the claim must be denied. As for a continuity of symptomatology between the present condition and in-service injury or disease, in the absence of a current disability, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Vertigo & TMJ The Veteran has current dizziness and TMJ, documented on VA examination in October 2013. On the Veteran's December 1974 entrance examination, no abnormalities of the mouth, jaw, or neurological system were found, and he raised no related complaints on the accompanying Report of Medical History. Dizziness, TMJ, and any related complaints were not documented during service. On his February 1978 separation examination, no abnormalities pertaining to the mouth or jaw, or pertaining to dizziness, were found. As recounted above, the Veteran sought treatment in the 1980s for TMJ and dizziness. A clear etiology for the disorders was not found. At the May 2013 hearing, the Veteran testified that he sustained an injury from a stick in basic training and he injured his jaw. The Veteran indicated that because he was told by his drill sergeant not to seek treatment for the jaw injury, he did not receive treatment. He testified that he had experienced continuous vertigo since service. VA examinations were conducted in May 1983 and October 2007, but the etiology of the Veteran's dizziness and TMJ was not addressed. On VA examination in October 2013, the examiner documented the Veteran's long-standing history of vertigo. He reported that his vertigo occurred most often when getting up too quickly. He reported episodes of passing out. He reported scraping his knees during falls related to vertigo, and denied nausea, vomiting, or a change in his tinnitus associated with the vertigo. The Veteran reported feeling that his vertigo may have been related to feelings of anxiety in the past. The examiner opined that the Veteran's symptoms of dizziness were more likely than not non-otologic (not ear related) in origin. The description of either passing out or near passing out was not consistent with a vestibular or ear-related etiology. Although the mechanism is unclear, muscle spasms from cervical spine conditions or TMJ related issues can give rise to symptoms of unsteadiness, frequently which are described as "dizziness." The Veteran's symptoms did not warrant a diagnoses of vertigo. Rather, his symptoms were more classic of orthostatic hypotension, which could have a variety of sources. Further, the muscle spasms associated with TMJ dysfunction can also cause unsteadiness, which could have been additive to what the Veteran described as anxiety-related symptoms, or even an unrelated orthostatic or other cardiovascular condition. There was no evidence of a tympanic membrane perforation, and even if there was one present, a perforation of the ear drum is not generally associated with vertigo unless there is infection or cholesteotoma, which were clearly absent in the Veteran. As for TMJ, the examiner noted there was no history of any significant trauma to the oral region, and the Veteran denied any oral or jaw trauma resulting in a fracture or other significant injury requiring medical attention. The examiner explained that one of the more common causes of TMJ dysfunction is an abnormal bite or occlusion. The Veteran had a very marked overbite, which is more likely than not the etiology of his TMJ dysfunction and current condition. This was more likely than not congenital in origin. In the absence of a significant injury such as a jaw or facial fracture that could cause such an overbite, or a significant injury which could have aggravated the TMJ condition beyond its normal progression, it was less likely than not that he Veteran's currently diagnosed temporomandibular joint condition was due to, a result of, or permanently aggravated by in service illness, injury, treatment or event. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The October 2013 VA examination report is adequate for the purposes of adjudication. As for vertigo, the examiner addressed the Veteran's contentions of long-standing dizziness, but attributed the dizziness to his non-service connected TMJ. The examiner based his conclusion on an examination of the claims file and the Veteran's medical records. He reviewed and accepted the Veteran's reported history and symptoms in rendering the opinion, as well as the service treatment records. The report is adequate for adjudication of the claim. As for the examiner's opinion regarding the congenital nature of the Veteran's TMJ, some disabilities, such as congenital or developmental defects, are not deemed diseases or injuries for VA purposes. 38 C.F.R. § 3.303(c) (2015). Under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedent opinion, VA's General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect." Congenital diseases may be service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, may not be service-connected in its own right. However, service connection may be granted for additional disability due to disease or injury superimposed upon such defect in service. VAOPGCPREC 82-90. Therefore, absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect as they are not a disease or injury within the meaning of applicable legislation relating to service connection. Id. The examiner did not indicate whether the TMJ is considered a disease or defect, but in either case, the preponderance of the evidence is against an award of service connection. If a disease, the examiner opined that the TMJ was not aggravated by service beyond its normal progression. If a defect, the examiner noted that no superimposed injury occurred during service, including a jaw or facial fracture. The examiner based his conclusion on an examination of the claims file and the Veteran's medical records. He reviewed and accepted the Veteran's reported history and symptoms in rendering the opinion, as well as the service treatment records. The report is adequate for adjudication of the claim. The only evidence to the contrary of the VA examination report is the lay evidence. The Board finds that the Veteran's lay assertions are competent. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence. Further, the Board finds that the lay statements regarding the in-service symptoms to be credible. Consequently, the Board will weigh the lay statements against the medical evidence. The VA examiner was a medical professional who reviewed the claims file and considered the reported history including the Veteran's own lay assertions. The examiner, in providing the requested medical opinions, used his expertise in reviewing the facts of this case and determined that the current dizziness was likely related to the non-service connected TMJ, not service. The TMJ was not related to service but was of congenital origin, and was neither aggravated by service nor subject to a superimposed injury or disease in service. As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence, including the Veteran's lay statements, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran, the Board finds that the credibility and probative value of the specific and reasoned statement of the trained medical professional outweighs that of the general lay assertions. Chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty, the record here does not document an organic disease of the nervous system manifested by vertigo within one year of the Veteran's discharge. Accordingly, such presumptive service connection is not warranted. To the extent the Veteran asserts having a continuity of symptomatology between the present conditions and the in-service injury or disease, vertigo and TMJ were not noted during service and characteristic manifestations of the disease process were not identified during service. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable to the claim. Notice and Assistance VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. October 2007 and June 2010 letters notified the Veteran of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. Moreover, at the May 2013 hearing, the undersigned clarified the issues on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of the claims. These actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). The claims file contains the Veteran's STRs, and VA medical records (VAMRs). The Veteran has not identified any outstanding PMRs. The duty to obtain relevant records is therefore satisfied. VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. Appropriate VA medical inquiries have been accomplished and are factually informed, medically competent and responsive to the issues under consideration. The Board is further satisfied that the RO has substantially complied with its August 2013 remand directives r. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ invited the Veteran to identify or submit any additional pertinent records, obtained updated VAMRs, and afforded a VA examination for the claims. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claims, and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. ORDER Service connection for bilateral hearing loss is denied. Service connection for vertigo is denied. Service connection for a disability manifested by left ear pain is denied. Service connection for TMJ is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs