Citation Nr: 1808801 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-12 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for onychodystrophy. 2. Entitlement to an initial compensable rating for erectile dysfunction. 3. Entitlement to an initial compensable rating status post right hand injury. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for status post left broken cheek for dental implants. 6. Entitlement to service connection for a left hip condition. 7. Entitlement to service connection for photophobia. 8. Entitlement to service connection for a deviated septum. 9. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from May 1998 to May 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The issues of an initial compensable rating for onychodystrophy, erectile dysfunction, status post right hand injury, and left hip condition 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 Veteran does not have bilateral hearing loss to an extent recognized as a disability for VA purposes. 2. Residuals of a deviated septum were not present in service, did not manifest to a compensable degree within one year of service discharge, and have not been continuous since separation from service, and are not etiologically related to service. 3. The elective surgery for dental implants, which included sinus augmentation, performed during service was ameliorative in nature and did not result in any disability for VA compensation purposes. 6. Sleep apnea was not present in service, did not manifest to a compensable degree within one year of service discharge, has not been continuous since separation from service, and is not etiologically related to service. 7. Resolving all doubt in the Veteran's favor, the currently demonstrated photophobia is aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for residuals of a deviated septum are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Service connection is not warranted for residuals post-left broken cheek for dental implants. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). 4. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for the establishment of service connection for photophobia are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his/her representative has 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). I. Hearing Loss In this case, the Veteran contends that he began to experience bilateral hearing loss during service and that such hearing loss is the result of exposure to loud noises associated with combat and other noise from service. However, there is no medical evidence of current hearing loss as defined by VA at any time since his claim was filed in May 2010. In order to obtain service connection under 38 U.S.C.A. § 1110 (West 2014) and 38 C.F.R. § 3.303 (a) (2017), a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). During an August 2010 VA audiological examination, his puretone thresholds, in decibels, were as follows: For the right ear, at Hertz 500, 1,000, 2,000, 3,000, 4,000; 10, 10, 15, 15 and 25 and for the left ear 5, 5, 5, 5, and 10. Speech audiometry revealed speech recognition ability of 100 percent in the right and left ear. He was diagnosed with normal hearing. VA treatment records reflect treatment for multiple medical conditions, but not hearing loss. An April 2011 VA treatment record noted a reported history of hearing loss. He was referred for an audiology examination, which was normal. (See also July 2010 VA treatment record). During a June 2015 VA audiological examination, his puretone thresholds, in decibels, were as follows: For the right ear, at Hertz 500, 1,000, 2,000, 3,000, 4,000; 5, 5, 15, 20 and 25 and for the left ear 5, 0, 0, 5, and 5. Speech audiometry revealed speech recognition ability of 100 percent in the right and left ear. He was diagnosed with normal hearing. He has not undergone any other reported hearing examinations. He is competent to report the symptoms and history of his claimed hearing loss and the Board has no legitimate basis to challenge the credibility of his contentions. However, the determination of whether his hearing impairment constitutes a hearing loss disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. 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, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As application of 38 C.F.R. § 3.385 reflects that he does not have current bilateral hearing loss under VA law at any time since his claim was filed in May 2010, service connection for this disability is not warranted. Thus, the preponderance of the evidence is against the Veteran's claim and service connection for bilateral hearing loss must be denied. II. Residuals of a Deviated Septum and Sleep Apnea The Veteran contends that he is entitled to service connection for residuals of deviated septum and sleep apnea. The STRs (service treatment records) reflect a deviated septum with good air movement. No residuals were noted in his service records. (See December 2002 Report of Examination). A December 2009 sleep study found no respiratory abnormalities, specifically sleep apnea. A May 2010 Separation Medical History Report noted only difficulty falling asleep. Post-service records reflect no diagnosis of sleep apnea or any residuals of a deviated septum. In the absence of an in-service injury and a current diagnosis, there is nothing upon which to base a potential nexus opinion. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). Consequently, all three elements of service connection have not been satisfied. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of sleep apnea falls outside the realm of common knowledge of a lay person. It requires a detailed sleep study by a medical professional in order to diagnose. With regard to any residuals of a deviated septum, the Veteran asserts that he has tenderness, pain, and difficulty breathing and sleeping. (See August 2011 Notice of Disagreement). However, the medical evidence of record reflects that he had no breathing or sleeping abnormalities nor has been diagnosed with any residuals of a deviated septum. (See December 2009 STR). He did not complaint of any residuals during service. In fact, an August 2010 CT Maxofacial Review showed frontal sinuses to be well-aerated. In arriving at this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against a finding of entitlement to service connection; the claims for residuals of a deviated septum and sleep apnea are therefore denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102, 3.312; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if the Board rules against a Veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the Veteran is not entitled to the benefit of the doubt) (internal quotations omitted). III. Status Post Left Broken Cheek for Dental Implants The preponderance of the evidence is against his claim of service connection for residuals post-left broken cheek for dental implants. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Here, the medical evidence clearly shows that that he had extensive dental work including implants with sinus augmentation during active service. The Veteran does not dispute that he voluntarily requested these surgeries; and that, it was not due to a disease or injury incurred in or aggravated by active service. The Board further finds that the elective surgeries performed during service did not result in any disability for VA compensation purposes. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). In pertinent part, the Board notes that there is no evidence of any current disabilities attributable to this elective surgery other than pain. In other words, no disabling residual of the November 2008 implants with sinus augmentation surgery, by itself, is shown by the medical evidence. Even without such finding, the Board has determined that the procedure was elective and after being informed of the risks, benefits, and alternatives of the surgery, the Veteran still consented to proceed. (See November 2008 consent forms for implants and sinus augmentation). For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for any residuals of status post left broken cheek for dental implants, to include pain, and it must be denied. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). IV. Photophobia The Veteran contends that he is entitled to service connection for photophobia. For the following reasons, the Board finds the Veteran is entitled to service connection for this condition. The Veteran contends that he has had severe sensitivity to light after his photorefractive keratectomy in 2002. He alleges that his conditions worsened while he was stationed in Kuwait, Iraq, and Afghanistan from sandstorms, fires and explosions. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Although a February 2008 STR reflects he was negative for photophobia, an August 2010 VA examiner diagnosed him with status post photorefractive ceratectomy, bilateral. The examiner also stated that his symptom of photophobia was at least as likely as not due to his refractive surgery and exacerbated by his exposure in the desert. The examiner's rationale was premised on the fact that he had photorefractive ceratectomy in service and that his light sensitivity started when he was in Iraq and Afghanistan. The Board finds that the Veteran's reports of increased photophobia since his service in the desert are consistent with the circumstances of his service. In considering his competent credible assertions combined with the favorable August 2010 VA examiner's opinion, the Board finds that a nexus to service is shown. Accordingly, service connection for photophobia is warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for residuals of a deviated septum is denied. Service connection for status post left broken cheek for dental implants is denied. Service connection for sleep apnea is denied. Service connection for photophobia is granted. REMAND With regard to his claim for a higher rating for onychodystrophy, erectile dysfunction, and status post right hand injury, more contemporaneous VA examinations are warranted to assess the current severity of these disabilities. Regarding the onychodystrophy claim, the Veteran claims that this disability has worsened since his last August 2010 VA examination. (See August 2011 NOD). With regard to erectile dysfunction, he now asserts that he is unable to obtain or maintain an erection, ejaculate, and has some urinary issues. (See August 2011 NOD). With regard to his status post right hand, the Board finds a more recent and detailed examination would be helpful in rating the hand injury. On remand, the RO/AMC must obtain an adequate examination for his onychodystrophy, erectile dysfunction, and status post right hand injury so that it may be rated properly. With regard to the left hip disability, a July 2010 x-ray of the left hip showed mild bony prominence at the femoral head/neck junction. He was diagnosed with femoral acetabular impingement syndrome. He had no complaints of left hip issues during service. It is unclear if the femoral acetabular impingement syndrome is related to service or his service-connected right hip disability. On remand, the RO should obtain an examination that addresses the nature and etiology of his left hip disability. A May 2011 VA treatment record reflects that the Veteran receives income from "VA, GI Bill, and disability." It is unclear if the Veteran has applied for Social Security Disability Income benefits (SSDI). On remand, the RO should obtain any SSDI records. Finally, to ensure completeness of the record, the RO should obtain all outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's complete VA treatment records from Palo Alto since March 2016. 2. Obtain the information necessary from the Veteran to obtain any private treatment records not already associated with the claims file. 3. Request from Social Security Administration complete copies of any, if any, disability decisions made concerning the Veteran and copies of the medical records that served as the basis for any decisions. If those records are not available, a negative reply is required. 4. Schedule VA examinations with the appropriate examiners, to determine the nature and severity of the Veteran's onychodystrophy, erectile dysfunction, and status post right hand injury. His claim file, including a copy of this remand, must be made available to the examiner for review in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. All tests should be performed to determine his current diagnosis and severity of each disability. All conclusions must be supported by a complete rationale. 5. Schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent or greater probability) that any current left hip disability was incurred in or aggravated by active duty service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any current left hip disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected right hip disability. A clear rationale for all opinions should be provided. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs