Citation Nr: 1802516 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 95-29 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an equilibrium disorder (claimed as dizziness), to include as secondary to service-connected bilateral hearing loss and tinnitus. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for a nose disability. 4. Entitlement to a rating in excess of 50 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Hugh D. Cox Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Coast Guard from May 1959 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 1999, May 2012, and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The February 1999 rating decision referred to above contained the initial denial of entitlement to service connection for an equilibrium disorder. The denial was appealed to the Board, and in a January 2002 decision the Board denied the claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By way of a January 2003 Order, the Clerk of the Court granted a Joint Motion for Remand (JMR) which vacated the Board's January 2002 decision and remanded the matter for adjudication consistent with its terms. The appeal was returned to the Board, and in September 2003 the Board remanded it for further development consistent with the terms of the JMR. In January 2011, the Board denied the claim of entitlement to service connection for an equilibrium disability for a second time. The Veteran again appealed the denial to the Court. In November 2012, the Court issued a memorandum decision that vacated the Board's January 2011 decision and remanded the matter for adjudication consistent with its terms. The appeal was returned to the Board, and in August 2013 the Board remanded the matter for further development. In February 2017, the Board remanded the matter once more in order to schedule the Veteran for a videoconference hearing, which has been completed. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. The hearing included testimony on all four issues on appeal. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2014); 38 C.F.R. § 20.900(c) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND I. Equilibrium Disorder The Veteran seeks service connection for an equilibrium disorder, to include as secondary to service-connected bilateral hearing loss and tinnitus. Remand of this claim is required for an additional VA medical opinion to aid the Board in making a fully informed decision. 38 C.F.R. § 4.2. The Veteran has raised multiple theories as to how the equilibrium disorder may directly relate to his active service. Consistent between all of these theories is the general assertion that the onset of the equilibrium problem coincided with a worsening of his hearing. First, he believes that it could be related to the occurrence of a stroke or "mini-strokes" during service. This theory finds some support in a June 2006 VA examination report wherein the VA examiner opined that the Veteran suffered a vascular insult during service that caused left ear deafness. While the examiner noted that the vascular insult was not caused by service, this point is non-determinative as the law allows for service connection for disabilities that simply had their onset during service. Thus, this theory of entitlement should be further investigated on remand. Second, the Veteran believes that his equilibrium problem and hearing loss began during boot camp in 1959 when he was running, fell, bumped his head, and blacked out. See VA treatment record (6/15/2001), and May 2004 and October 2011 VA examination reports. The only evidence in support of the occurrence of this event is the Veteran's own lay statements. The Veteran is competent to relate the terms of his service and the onset of such symptomatology; however, the Board finds him to be of diminished credibility in this instance because a VA examiner described him as evasive and a poor historian when answering questions. See May 2004 VA examination report (wherein the Veteran related the onset of symptoms to this undocumented event). As a result, the Board ascribes minimal probative value to his assertion regarding the occurrence of this event and the onset of symptomatology related to it. Weighing against the occurrence of this event is the absence of contemporaneous records, either documenting the actual event of falling and blacking out during boot camp or any potentially related treatment, as well as any mention of this event in the record within 40 years of its supposed occurrence. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (the competency and credibility of evidence is distinct from its probative value, which is to be weighed against the other evidence of record); see also Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the absence of contemporaneous evidence may be weighed against other evidence but the Board cannot use the lack of contemporaneous evidence to find a veteran lacks credibility). The Board finds that the Veteran's statement, which is of minimum probative value, is insufficient to bring the weight of the evidence to equipoise. The evidentiary burden of proof lies with the claimant and, in this instance, it has not been met. There is no reasonable doubt to be resolved. The Board finds that the Veteran did not experience an incident during boot camp where he was running, fell, bumped his head, and blacked out and subsequently experienced decreased hearing acuity and equilibrium problems. Third, the Veteran believes that his equilibrium problem and hearing loss began after an April 25, 1960 incident in which he boarded a foreign vessel and went down into the hull to search it. In one version of this event, the Veteran was exposed to toxic fumes or chemicals and had a loss of consciousness with confusion and abdominal pain. See, e.g., private treatment record from Dr. F.F. (2/8/1994). In another version of this event, he does not really know what happened down in the hull; something made him sick and he got a chill and felt sick. See, e.g., Decision Review Officer (DRO) Hr'g (5/8/1992). In a third version of this event, there was a frozen dead man in the hull and when he saw the body he got sick to his stomach and started cramping and his head started spinning and he was dizzy. August 2017 Board Hr'g Tr. 9-10. In all three versions of this event, the end result was that the Coast Guard helicoptered him to the U.S. Public Health Service Hospital at Staten Island, New York, where he was held for four days under observation. The record only contains a one-page narrative summary of the inpatient hospitalization from April 25, 1960 to April 29, 1960. Per the November 2012 memorandum decision, the Board took further efforts to obtain the other related records. A Personnel Information Exchange System (PIES) request was initiated in September 2013 requesting these records from the National Personnel Records Center (NPRC). A response was received in June 2015 containing several pages of medical records that were duplicates of documents already contained in the claims file. The June 2015 response also recommended that the U.S. Public Health Service (PHS) Health Data Center could be contacted to obtain records previously heal at U.S. PHS hospitals. A request to obtain these records from the U.S. PHS was initiated in November 2015. A December 2015 response included an index card documenting occurrence of the inpatient hospitalization, but the index card was otherwise uninformative. The response indicated that the record number noted on the index card was not associated with an accession number and without an accession number or box number; the employee was unable to locate the medical record at the National Archives and Records Administration (NARA) facility in which it is stored. VA does not have the information required of the U.S. PHS, if it exists, and, therefore, is unable to obtain these records. In January 2016, the Veteran was sent a notice letter informing him of the unavailability of any existing records relating to the April 1960 hospitalization at the U.S. PHS Hospital at Staten Island, New York, in accordance with 38 C.F.R. § 3.159(e). Accordingly, there has been substantial compliance with the Board's August 2013 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran's statements concerning the event, the Board finds that the Veteran is competent to relate the terms of his service and such medical treatment; however, in this instance, the Board finds his credibility is diminished due to inconsistent statements. Specifically, the Veteran described three different versions of the same event, as noted above. That is not to say the Board finds the Veteran dishonest - it does not. Rather, the Veteran presents as an unreliable historian and, as a result, the Board ascribes his statements regarding the occurrence and circumstances surrounding this event to be of minimal probative value. Weighing against this lay evidence is an absence of records documenting the transport to the hospital by Coast Guard helicopter, as well as no mention of such an event in any service record or other record contained in the claims file for 30 years after its supposed occurrence. There are no contemporaneous medical records that document the occurrence of this incident. The narrative summary from the inpatient hospitalization does not weigh in favor of the occurrence of the event. The "History" section of the narrative summary indicates that the Veteran reported that at approximately 4:00pm on April 25, 1960 he was suddenly overtaken by an acute generalized abdominal pain. The Veteran reported that he had eaten roast beef, potatoes, and ice cream at noon, and then at 11:30 am moved his bowels. He did also note a brief episode of chills, but his abdominal pain had remitted considerably since onset. There is no mention of helicopter transport, of exposure to toxic fumes, of a visceral reaction to the sight of a dead body, or of loss of consciousness. The Board finds that the Veteran's statement, which is of minimum probative value, is insufficient to bring the weight of the evidence to equipoise. The evidentiary burden of proof lies with the claimant and, in this instance, it has not been met. There is no reasonable doubt to be resolved. The Board finds that the Veteran did not board a ship in April 1960 and was not subsequently transferred to U.S. PHS Hospital in Staten Island for related treatment, as he has related. Two additional findings logically follow from the Board's above determinations. First, the Veteran was not exposed to toxic fumes or chemicals during service. The only evidence in support of this assertion was the Veteran's statement that it occurred in April 1960 while searching the foreign vessel and, as discussed above, the Board has found this event did not occur. Second, as the Board has found that neither the boot camp incident nor the foreign vessel incident occurred, it follows that the Veteran's equilibrium problems did not have their onset coincident with such specific events. Despite the above findings, the Board has not ruled out the possibility that the equilibrium problems otherwise had their onset during service or that their onset was coincident with left ear hearing loss and/or aggravation. As the Court correctly noted in the November 2012 memorandum decision, the Physical Evaluation Board (PEB) attributed the hearing loss to aggravation during service and, therefore, it is not necessarily inconsistent for the appellant to relate his dizziness to any such aggravation. On remand, a VA medical opinion should be obtained concerning the etiology of the Veteran's equilibrium disorder. Given the complex nature of this disease, the opinion should be authored by a specialist, an otolaryngologist. The opinion should consider both direct and secondary theories of service connection. II. Eye Disability The Veteran seeks service connection for an eye disability. During VA treatment in August and September 2015, the Veteran indicated that he sees a Dr. K.H. at My Eye Dr. Optometry of NC, and that he wished to transfer his optomological care from the outside treatment provider to VA. The Veteran's statements have put VA on notice that there exist relevant private treatment records. Accordingly, on remand, the Veteran should be asked to submit, or authorize VA to obtain, treatment records from Dr. K.H., as well as records from any other non-VA treatment provider related to treatment for his eyes. 38 C.F.R. § 3.159(c)(1). III. Nose Disability The Veteran seeks service connection for a nose disability. His service records show that on February 10, 1960, he was seen in the E.N.T. clinic at U.S. PHS Hospital at Staten Island, New York, with complaints of nose bleeds for the past 3 to 4 months. That same date, a cauterization of his inferior turbinates was done. In 1995, VA recommended a septoplasty to correct a deviated septum. In September 1995, the Veteran sought the independent opinion of Dr. F.C., who agreed that the Veteran's septum looked horrible and that a well done septoplasty would assist him in being able to breath. In January 1996, he underwent a septoplasty. From January 28, 1996 to February 1, 1996 he was hospitalized at Pitt County Memorial Hospital after his nose kept bleeding. Nasal packing was performed with an Epistat balloon to control the bleeding. In July 1996, the Veteran underwent a second septoplasty because the first operation was deemed unsuccessful. During the August 2017 Board hearing, the Veteran testified that his nose has intermittently bled since discharge from service and continues to do so at the present time. See Hr'g Tr. 25-33. A review of the claims file shows that a request for a VA examination or medical opinion concerning a possible nose disability was initiated in January 2014; however, in February 2014 the request was cancelled because the Veteran had related that he was beginning chemotherapy. It does not appear that this examination was ever rescheduled. The Board finds that the Veteran's current assertions of nose bleeds considered together with the in-service documentation of nose bleeds and nose treatment in the mid-1990s is sufficient to meet the low threshold of McLendon; VA has a duty to assist the Veteran in substantiating his claim by providing a medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). IV. Bilateral Hearing Loss The Veteran seeks a rating in excess of 50 percent for bilateral hearing loss. In August 2017, he testified at a videoconference hearing before the undersigned VLJ. He testified that his hearing acuity has worsened since his last VA examination in October 2011 and his hearing aids have become less effective. Hr'g Tr. 3-5. Accordingly, on remand, the Veteran should be scheduled for a new VA examination to determine the current severity of this disability. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Contact the Veteran and ask that he submit, or authorize VA to obtain, all non-VA medical records relating to treatment for his eyes, to include those from Dr. K.H. at My Eye Dr. Optometry of NC. All efforts to obtain identified records must be fully documented in the claims file. If such records are not found, the claims file must be clearly documented to that effect and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain a VA medical opinion concerning the etiology of his equilibrium disorder. Given the complex nature of the disease, the opinion should be authored by an otolaryngologist or other appropriate specialist, if at all possible. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with authoring the opinion. THE EXAMINER MUST REVIEW THIS REMAND. THE BOARD HAS MADE MULTIPLE FINDINGS OF FACT WITH REGARD TO THE PROBATIVE VALUE OF THE VETERAN'S LAY STATEMENTS AND THE OCCURRENCE OF CERTAIN PERTINENT EVENTS. The examiner is asked to provide responses to the following: (A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's equilibrium disorder had its onset during, or is otherwise related to, his active service? As noted above, the examiner should be aware that the Board has found that certain events did not occur and this opinion can be provided within the parameters of those findings. The opinion should discuss the possibility of the occurrence of a stroke or mini-strokes during service and any possible relation between the current disability and those injuries; if it is determined they likely occurred. The opinion should also discuss whether the equilibrium disorder may be related to the aggravation of the Veteran's pre-existing hearing loss that was found to have occurred during service. During service, a PEB did find that the Veteran's hearing loss was aggravated, although no specific event was identified, and the Veteran has related that his equilibrium problems onset at the same time as his hearing problems. The opinion should not be limited to these above points. Private treatment records favorable to the Veteran's claim should be considered, to include the 1994 to 1996 records from Dr. F.F. and the 2009 evaluation by Dr. D.P., as should all prior VA and non-VA lab reports and studies. A complete rationale must be provided for all opinions expressed. (B) Is it at least as likely as not (a 50 percent or greater probability) that the equilibrium disorder was proximately caused or aggravated by service-connected bilateral hearing loss and/or tinnitus? The examiner should recognize that this question requires two opinions: one for proximate causation and a second for aggravation. The term "aggravation" means a permanent worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the equilibrium disorder prior to its aggravation by the bilateral hearing loss and/or tinnitus. Private treatment records favorable to the Veteran's claim should be considered, to include the 1994 to 1996 records from Dr. F.F. and the 2009 evaluation by Dr. D.P., as should all prior VA and non-VA lab reports and studies. A complete rationale must be provided for all opinions expressed. 4. Schedule a VA examination to determine the current nature and severity of the Veteran's bilateral hearing loss. The examination should be conducted by a licensed audiologist. The entire claims file must be reviewed, to include a copy of this REMAND, in conjunction with the examination. In addition to all testing performed, the examiner should elicit from the Veteran all functional impairment related to his bilateral hearing loss. A complete rationale must be provided for all opinions expressed. 5. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. §§ 5109B, 7112. _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).