Citation Nr: 1753044 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-05 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for residuals of a broken nose, to include deviated nasal septum. (The additional issues of entitlement to service connection for a blood sugar condition, a dental condition, hypertension, a kidney condition, a prostate condition, a right knee condition, and sleep apnea will be addressed by the Board at a later date following the scheduling of a requested hearing.) REPRESENTATION Appellant represented by: Deana M. Adamson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in April 2016 to present testimony on the issues on appeal. Of note, three other issues presented at the time of the prior hearing regarding service connection for a low back condition, a left knee condition, and an acquired psychiatric disorder have been granted in full by Decision Review Officer Decision in May 2017 and are no longer part of the present appeal before the Board. The issues of service connection for a bilateral hearing loss disability and residuals of a broken nose were remanded by the Board in June 2016. At that time, the Board took limited jurisdiction of the additional issues of entitlement to service connection for a blood sugar condition, a dental condition, hypertension, a kidney condition, a prostate condition, a right knee condition, and sleep apnea, for the procedural purpose of directing issuance of a Statement of the Case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). During the pendency of the present appeal, the Veteran has since perfected his appeal as to these additional issues as well, and requested an additional hearing to which he is entitled. VA Form 9, February 2017. To ensure the Veteran's right to be heard on the remaining issues, while still enabling the quickest possible decision on the two issues for which a hearing as already been conducted, the Board presently splits the Veteran's appeal into two separate appellate streams with this decision reaching only those issues for which testimony has already been presented. The remaining issues will be scheduled for a hearing as requested, according to standard procedures. FINDINGS OF FACT 1. A bilateral hearing loss disability has not been shown for VA compensation purposes as there is no evidence of impaired hearing in any tested auditory threshold exceeding 26 decibels, nor speech recognition score below 94 percent. 2. It is at least as likely as not the Veteran's current deviated nasal septum was incurred in active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. Affording the Veteran the benefit of the doubt, the criteria to establish service connection for a deviated nasal septum have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Additionally, although not raised by the Veteran, the Board acknowledges that a number of years have passed since the date of the prior VA audiometric examination in June 2011. However, the Board does not find that the previous examination fails to reflect the existing state of the Veteran's hearing acuity. Rather, there is no other evidence of record that shows the Veteran's claimed hearing loss has worsened in any significant manner since the June 2011 testing, nor does the Veteran allege this is the case. Although the Veteran has sought treatment for a number of other unrelated conditions during the pendency of the appeal, he has not sought treatment for hearing loss or reported worsening problems related to hearing loss. See, e.g., VA treatment, May 2016; VA Ear, Nose, & Throat Consult Note, April 2014 (showing no report of hearing loss). As such, the mere passage of time is not shown to have rendered the existing VA examination inadequate. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007). The Board has reviewed all of the evidence within the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the given claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The claim was previously remanded in June 2016 for further evidentiary development. Specifically, records from the Social Security Administration (SSA), private medical records from the Veteran's prior civilian employers, and a VA examination were sought. SSA medical records were obtained in January 2017. The Veteran was provided notice and the appropriate forms by which to request assistance in obtaining possible private treatment records identified during his hearing in a letter dated January 5, 2017. The Veteran was provided with a VA examination specific to his deviated nasal septum in March 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Bilateral hearing loss The United States Court of Appeals for Veterans Claims (CAVC or the Court) acknowledges that "the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA regulation further defines when a hearing impairment is considered a disability subject to service connection for the purposes of compensation. 38 C.F.R. § 3.385. For the 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 frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. However, as will be discussed below, none of these auditory findings are present in this case. VA examination, June 2011. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 15 15 15 RIGHT 15 10 20 20 20 Speech audiometry revealed speech recognition ability of 94 to 100 percent bilaterally, which was noted as "excellent (normal)". Overall, the examiner diagnosed hearing within normal limits bilaterally. VA examination, June 2011. There are no other audiological test results of record. The Board acknowledges the Veteran's statements that he experiences symptoms of hearing loss, as he described in sworn testimony before the undersigned. Hearing transcript, April 2016. However, the Veteran is not competent to diagnose hearing loss to the medical standard required by VA regulation. As such, the Board finds that there is no competent evidence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, after careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA will resolve that doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this instance, the evidence weighs against the claim. Service connection for a bilateral hearing loss disability is not warranted. Deviated nasal septum Upon VA examination in March 2017, there is x-ray evidence of the nasal bones showing deviated septum to the left. As such, there is a current diagnosis of the condition. The Veteran contends that this disability is a result of a boxing or sparring match occurring during active service aboard ship in or around the winter of 1974. Hearing testimony, April 2016. The Veteran has consistently described this in-service event, even outside of the context of nasal examination or treatment. See, e.g., VA psychiatric examination, March 2017. The Board finds the Veteran's lay history to be competent and credible regarding personally experiencing a sparring match, with a blow to the nose, followed by bleeding and packing of the nose. This is sufficient lay evidence of an in-service incurrence of injury in the present case. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); 38 C.F.R. § 3.159(a)(2) (2017) (finding lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a person without specialized knowledge or training). The March 2017 VA examiner found no causal relationship between the Veteran's currently diagnosed deviated septum and the reported in-service boxing injury, basing this determination solely on the absence of medical evidence of an in-service fracture. However, as the Board finds the Veteran's lay history to be competent and credible evidence of an in-service injury, the Board sets aside the negative nexus opinion. To be clear, it is well-established law that the Board is required to consider all material facts in each case, to include competent and credible lay history. 38 U.S.C. §§ 7104(a), 5107(b), 1154(a); 38 C.F.R. § 3.303(a); Weaver v. Principi, 14 Vet. App. 301, 302 (2001). In this instance, the Veteran has reported experiencing regular and recurrent nose problems since the boxing incident during service, including symptoms of nosebleeds which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hearing transcript, April 2016. There is no evidence that the Veteran's lay statements are not credible, and as such these statements concerning persistent symptoms since service are entitled to probative weight. As such, resolving any reasonable doubt in the Veteran's favor, his deviated nasal septum is found to be at least as likely as not related to his in-service injury. 38 C.F.R. § 3.102. ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for deviated nasal septum is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs