Citation Nr: 1804585 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-12 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for a bilateral leg disability. 2. Entitlement to service connection for a chronic sinus disability. 3. Entitlement to service connection for chronic headaches, including as secondary to a chronic sinus disorder. 4. Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1972 to November 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded in May 2014 so that the Veteran could be scheduled for a hearing before a member of the Board. In December 2014, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is available for review. In a May 2015 decision, the Board found that service connection was not warranted for a chronic low back disorder and for right ear hearing loss. The Board also found that new and material evidence had been received to reopen claims of service connection for bilateral ankle and leg disabilities, for degenerative changes of the talar and navicular joints, and for pes planus. These matters, as well as service connection for left ear hearing loss, a chronic sinus disorder and headaches, were remanded for further development of the evidence. After development, service connection was established for bilateral ankle disabilities, bilateral talonavicular joint disabilities, and bilateral pes planus. The issues related to bilateral leg disabilities, sinusitis, headaches and left ear hearing loss were returned for further appellate consideration. The issue of service connection for hearing loss of the left ear is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In correspondence received in January 2018, prior to the promulgation of a decision in the appeal, the appellant's representative indicated that the appellant wished to withdraw the appeal seeking service connection for a bilateral leg disability; there are no questions of fact or law remaining before the Board in this matter. 2. The Veteran had complaints of sinusitis during service, but chronic sinusitis was not manifested during service. 3. While the Veteran was shown to manifest sinusitis in 2014, he is currently shown to manifest allergic rhinitis. 4. Chronic sinusitis has not been demonstrated in the years following service. 5. The Veteran had complaints of headaches during service, but chronic sinusitis was not manifested during service. 6. A chronic headache disorder has not been demonstrated in the years following service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant are met; the Board has no further jurisdiction in the matter of entitlement to service connection for a bilateral leg disability. 38 U.S.C. §§ 7104, 7105(d)(5) (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017). 2. Chronic sinusitis was neither incurred in nor aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 3. Chronic headaches were neither incurred in nor aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Regarding the issue dismissed herein, the facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations. Accordingly, VA's duties to notify and assist are inapplicable. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As to the additional issues decided herein, VA's duty to notify was satisfied by a letter dated in May 2010. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently in September and October 2017. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2017). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims decided herein. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Withdrawal of Issue The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In correspondence received in January 2018, the appellant's representative indicated that he wished to withdraw the appeal seeking service connection for a bilateral leg disability. Hence, there are no allegations of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider the appeal in this matter, and it is dismissed. Chronic Sinusitis The Veteran claims service connection for chronic sinusitis, which is believed to have had its onset during service. Review of the Veteran's STRs shows that he had sinus complaints while on active duty, including a diagnosis of sinusitis in September 1979. He indicated that he had a history of having or having had sinusitis at the time of his examination for separation from service in 1980. At that time, clinical evaluation of the nose and sinuses was normal. Post-service medical evidence includes a general medical examination conducted by VA in January 1983. At that time, examination of the nose and sinuses was normal. There was no diagnosis of a chronic sinus disorder. VA outpatient treatment records do include complaints of a sinus disorder, including a diagnosis of sinusitis in a treatment report dated in February 2014. An examination was conducted by VA in September 2015. At that time, the diagnosis was allergic rhinitis. There was no diagnosis of a chronic sinus disability. The Board finds that the evidence is not sufficient to establish the presence of a chronic sinus disability during service, and, while there are indications that the Veteran has had sinus complaints subsequent to service, there is no evidence of any complaints or findings of a chronic sinus disability since service. In this regard, it is well established that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131 (2012); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While there is a diagnosis of sinusitis in VA treatment records dated in 2014, the Veteran has not submitted any evidence demonstrating a current diagnosis of a chronic sinus disability that is related to service. The current VA examination shows a diagnosis of allergic rhinitis, not chronic sinusitis. 38 U.S.C.A. § 1110 ; McLain, 21 Vet. App. at 321; Romanowsky, Id. The Board's finding is further supported by the lack of post-service manifestations of sinusitis until 2014, over three decades after discharge from service. A normal medical finding at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of sinus complaints, symptoms, or findings for over three decades between the period of active service and his initial post-service manifestation of sinusitis is itself evidence which tends to show that the disease did not have its onset in service or for years thereafter. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for chronic sinusitis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Chronic Headache Disorder The Veteran claims service connection for a chronic headache disorder that he asserts had its onset during service. Review of the Veteran's STRs shows that the Veteran had complaints of headaches associated with chills and rhinitis in February 1974 as well as complaints of headaches in November 1976 and July 1979. On examination for separation from service in November 1980, he reported having or having had a history of headaches, but clinical evaluation showed no manifestation of a headache disorder. Post-service medical evidence includes a report of a VA general medical examination dated in January 1983 in which there were no complaints or manifestations of a chronic headache disorder noted. VA outpatient treatment records include a reference in December 2008 that the Veteran did not have complaints of headaches and a report in February 2014 showing that he had had complaints of "sinus headaches" for the past two weeks. On VA examination in September 2015 it was noted that the Veteran had not been diagnosed with a chronic headache disorder. The medical history noted that he had reported getting pressure in the frontal and maxillary sinuses during episodes of rhinosinusitis that occurred two times per month. He did not take medications and the symptoms resolved in three days. The examiner noted that the Veteran did not have a chronic headache disorder that was at least as likely as not related to service as he described intermittent pressure in the frontal and maxillary areas that were related to episodic rhinosinusitis. Therefore, the claimed condition of chronic headaches was not as least as likely as not incurred in or caused by military service. The record does not disclose that the Veteran has had a chronic headache disorder either while on active duty or thereafter. While he has been assessed as having headaches resulting from rhinosinusitis, as noted, service connection is not in effect for a chronic sinus disorder and there is no diagnosis of a chronic headache disorder that has been related to service. The September 2015 VA examination report contains the only medical opinion in the record. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a chronic headache disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral leg disability is dismissed. Service connection for a chronic sinus disability is denied. Service connection for chronic headaches, including as secondary to a chronic sinus disorder, is denied. REMAND The remaining issue on appeal is entitlement to service connection for left ear hearing loss. Review of the record shows that this matter was remanded so that an opinion could be rendered regarding whether the elevated pure tone threshold levels noted on audiometric evaluation during service are related to his chronic hearing loss. While an opinion was obtained in October 2015, the rationale was that pure tone thresholds in 1976 were normal and that this suggested that the Veteran's hearing was within normal limits in the absence of middle ear pathology. This opinion does not, however, account for the audiometric findings that showed elevated pure tone thresholds at examination for separation from service when clinical evaluation of the ears and eardrums was normal. As such, the requested opinion is not sufficient to satisfy the Board's May 2015 remand and the case must be returned for an additional medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Accordingly, the case is REMANDED for the following action: 1. the AOJ should arrange for a supplemental opinion by the examiner who rendered the October 2015 opinion regarding the etiology of the Veteran's left ear hearing loss. The claims folder should be made available for review. The examiner should be requested to specifically address audiometric findings in service on those occasions when there was no evidence of left ear infection, including at examination for separation from service, relative to the question of whether it is at least as likely as not (probability 50 percent or more) that the Veteran's left ear hearing loss is of service onset or otherwise related to service. If it is the opinion of the October 2015 examiner that the Veteran's current left ear hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service noise exposure or acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. If the examiner who rendered the October 2015 opinion is not available, the Veteran should be scheduled for an additional audiometric evaluation so that the requested opinion can be obtained. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that the left ear hearing loss is of service onset or otherwise related to service. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs