Citation Nr: 1805850 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-25 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for Bell's palsy. 2. Entitlement to service connection for dysphonia. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 4. Entitlement to service connection for left ear hearing loss. 5. Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from May 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. At the October 2017 hearing, the Veteran and his representative mentioned private medical records that would be sent in for the Board to consider. The VLJ agreed to hold open the record for an additional 90 days. However, the Veteran did not submit any additional evidence for review. The issues of service connection for an acquired psychiatric disorder, service connection for left ear hearing loss, and an increased initial rating for right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of evidence reflects that the Veteran's Bell's palsy was not due to his time in service. 2. The preponderance of evidence reflects that the Veteran's dysphonia was not due to his time in service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for Bell's palsy have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). 2. The requirements for establishing service connection for dysphonia have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) medical 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The nexus requirement of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection, manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Service Connection for Bell's Palsy The evidence of record does not show that the Veteran has been diagnosed with Bell's palsy. The Board notes the Veteran's STRs lack any in-service treatment for Bell's palsy or symptoms thereof. At his hearing, the Veteran testified that he began to have a facial nerve problem in 1977, but he did not know when Bell's palsy was diagnosed. The Veteran stated that a private physician told him that his Bell's palsy was caused by his in-service exposure to extremely cold temperatures. As mentioned previously, the Veteran failed to provide the Board with additional medical evidence, and as such there is nothing in the evidence of record from the Veteran's private physician with that opinion. Although the Veteran stated that his physician told him that his Bell's palsy was due to service, the claims file is absent for a probative positive opinion from the medical professional who provided this opinion. Even assuming that the Veteran is a reliable historian and accurately asserts that such an opinion was provided, because it is not of record, the Board cannot assess the probative value of such a medical opinion. Specifically, the Board is unable to determine the factual basis or rationale supporting the reported opinion. The Veteran's report that his physician provided a favorable opinion carries little probative weight. While the Board does consider the Veteran's lay contention, it must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to diagnosis or etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, self-diagnosing Bell's palsy and determining its etiology falls outside the Veteran's competence, as the record does not show that he has the necessary training, skills, or experience needed to make such a determination. See Jandreau, 492 F.3d at 1377 n.4. Therefore, the Board assigns low probative value to his lay assertions. Thus, the Board finds the preponderance of the evidence is against service connection for Bell's palsy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). B. Service Connection for Dysphonia The Veteran has been diagnosed with a vocal disability. A VA treatment record from August 2017 notes that he has chronic dysphonia since removal of a vocal cord polyp in approximately 2006. It impacted him mostly when he tried to sing. The Veteran's STRs for any treatment or complaints of throat or voice problems. At the October 2017 Board hearing, the Veteran stated that in service he worked around jet fuel and was exposed to fumes. The Veteran noted he started having sore throats in service but did not seek treatment instead he would just gargle for relief. The Veteran stated he did not realize until later that his vocal issues were due to his in-service jet fuel exposure Like the Veteran's lay contentions regarding his Bell's palsy etiology, the Board concludes that the Veteran is not competent to opine as to the etiology of his dysphonia. The record does not show that he has the requisite training, skills, or experience to determine whether environmental contaminants or other occurrences in service caused the vocal polyp. See Jandreau, 492 F.3d at 1377 n.4. Therefore, the Board assigns low probative value to his lay assertions. Thus, the Board finds the preponderance of the evidence is against service connection for dysphonia. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for Bell's palsy denied. Service connection for dysphonia is denied. REMAND The Board concludes this case must be remanded to afford the Veteran an opportunity to have a VA examination for psychological disorders and hearing loss. As noted above, a VA examination is required when there is an indication that the disability may be associated with the Veteran's service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record contains multiple lay statements from the Veteran, including at his October 2017 Board hearing, describing his in-service experience of almost being hit by a propeller jet. The Veteran also described an incident where he was almost blown over by a jet. The Board finds a VA examination is necessary to determine if these in-service incidents are related to the Veteran's current diagnoses of anxiety and depression. Additionally, a VA examination is necessary to address the Veteran's claim for service connection for left ear hearing loss and claim for an increased in rating for his right ear hearing loss. The Board acknowledges the Veteran received a VA examination in June 2013. However, at the Veteran's Board hearing he noted that his hearing is worse now than at that VA examination, specifically his hearing in his left ear. Thus, the Board finds a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his anxiety and depression. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's anxiety and depression began during active service, is related to an incident of service, specifically the two near-misses described by the Veteran during his October 2017 Board Hearing, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Audiometric testing must be conducted so the current severity of the Veteran's service-connected right ear hearing loss may be assessed, and so it can be determined whether his left ear hearing loss meets the threshold to be considered a disability for VA purposes. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's left ear hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs