Citation Nr: 20005153 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-06 203 DATE: January 23, 2020 ORDER Service connection for a headache disability is denied. Service connection for right ear hearing loss is granted. REMANDED Service connection for asthma is remanded. Entitlement to a compensable rating for service-connected left ear hearing loss is remanded. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran’s headaches are a manifestation of his service-connected sinusitis; there is not a separate headache disability. 2. It is at least as likely as not that the Veteran’s right ear hearing loss disability is related to his active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a headache disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.14, 4.97, Diagnostic Code (DC) 6513. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from June 1981 to July 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Newark, New Jersey, RO has jurisdiction of the current appeal Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time a claim for service connection is filed, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a headache disability is denied. The Veteran seeks to establish service connection for a headache disability. Preliminarily, the Board notes that, during the pendency of the appeal, service connection has been in effect for sinusitis. The Board finds that the Veteran has not been diagnosed with a headache disability during or approximate to the appeal period. A September 2014 VA headaches examination report shows that the examiner concluded that the Veteran has never been diagnosed with a headache condition. In this regard, the Veteran reported that he had headaches when he had sinus congestion, and that he was not being treated for chronic headaches. The VA examiner noted that the Veteran’s headache is a symptom associated with cold symptoms or congestion. The Veteran underwent a VA examination of his sinusitis in September 2017. The VA examiner described the Veteran’s headaches as a symptom of, and attributable to, his sinusitis. Thus, the weight of the competent evidence indicates that the Veteran’s headaches are not a separate and distinct disability but are instead a symptom of his service-connected sinusitis. Indeed, this finding is consistent with the Veteran’s descriptions of his symptoms. The Veteran has not otherwise submitted any competent medical evidence showing a headache disability separate and distinct from his service-connected sinusitis. While the Board does not doubt the Veteran’s sincere belief that he has a separate headache disability, he is not competent, as a lay person, to diagnose a headache disability or attribute even observable symptoms to a specific diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (laypersons are competent to describe symptoms which support a later diagnosis); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this case, the Veteran is already in receipt of service connection for sinusitis, which has been assigned a noncompensable rating under 38 C.F.R. § 4.97, Diagnostic Code 6513. The criteria under Diagnostic Code 6513 specifically contemplate the disabling effects of headaches associated with sinusitis. The evidence of record weighs against a finding of a separate and distinct headache disability. Based on the foregoing, the Board finds that weight of the evidence is against the Veteran’s claim because the headache symptom described by the Veteran is already part of a service-connected sinusitis disability. Accordingly, a grant of service connection for a separate headache disability based on the same symptoms constitutes impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim for service connection for a headache disability must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. 2. Service connection for right ear hearing loss is granted. The Veteran seeks to establish service connection for right ear hearing loss. Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. The Board first finds the Veteran currently has right ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385. See, e.g., September 2017 VA audiometric examination report. Thus, the first element of service connection is met. See Davidson, supra. There is also no real dispute that the Veteran was exposed to hazardous noise during service. VA has already conceded noise exposure and the Veteran is service-connected for left ear hearing loss due to in-service noise exposure. See February 2015 VA Medical Opinion; March 2015 Rating Decision. The remaining question is whether there is competent nexus evidence establishing a connection between the Veteran’s right ear hearing disability and service. In February 2015, a VA examiner opined that the Veteran’s bilateral hearing loss is at least as likely as not (greater than 50 percent probability) caused by or a result of his service. The Board has reviewed the medical opinion and finds that the evidence in support of his claim is no less probative than the evidence against it. Resolving reasonable doubt in the Veteran’s favor, the third and final element of service connection has been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim for service connection for right ear hearing loss is, therefore, granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims and to afford him every possible consideration. 1. Service connection for asthma is remanded. The Veteran seeks service connection for asthma. The February 1981 service enlistment examination shows that the Veteran’s asthma was not “noted” at service entry. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the Veteran’s claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran was examined in connection with his claim for service connection for asthma in September 2014. After examining the Veteran and reviewing the record, the examiner opined that the Veteran’s asthma existed prior to service and was “less likely as not” incurred in service. In this case, the September 2014 examiner’s opinion is inadequate because it is not expressed pursuant to the applicable evidentiary standard (clear and unmistakable evidence that the Veteran’s asthma preexisted service and was not aggravated during service). As such, another VA opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board notes that the Veteran submitted a private medical opinion in February 2017 in which a physician opined that the Veteran’s asthma was caused during his service in the Air Force. The Board finds the opinion to be inadequate as it was not supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. 295, 301 (2008). 2. Entitlement to a compensable rating for service-connected left ear hearing loss is remanded. As the Board has granted the claim of entitlement to service connection for right ear hearing loss, the claim for a compensable rating for left ear hearing loss must be remanded. When only one ear exhibits service-connected hearing loss, the disability is rated on its own. However, when the hearing loss in both ears is service-connected, the disabilities are combined and rated together as bilateral hearing loss. 38 C.F.R. § 4.85. Consequently, the claim for a compensable rating for left ear hearing loss is intertwined with the rating that may be assigned for the Veteran’s right ear hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered); 38 C.F.R. §§ 4.85-4.86 (bilateral hearing loss is evaluated as one disability that accounts for the level of hearing loss in each ear). The matters are REMANDED for the following action: 1. Obtain any additional medical records pertaining to the Veteran’s asthma and hearing loss disabilities that may have come into existence since these records were last procured, to include VA medical records and any private medical records that the Veteran may identify. 2. Take any appropriate action to implement the grant of service connection for right ear hearing loss, to include obtaining a VA examination, if necessary, for rating purposes. 3. Then, adjudicate the issue of entitlement to a compensable rating for the now service-connected bilateral hearing loss. 3. After the foregoing development has been completed to the extent possible, provide the record on appeal to the VA examiner who previously offered an opinion with respect to the etiology of the Veteran’s asthma in September 2014. If the September 2014 examiner is no longer employed by VA or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. The examiner should review the record and prepare a supplemental report containing an opinion with respect to each of the following questions: a) Is it clear and unmistakable (i.e., manifest, obvious, or undebatable) that the Veteran’s asthma existed prior to the Veteran’s entry into service? b) If it is clear and unmistakable that asthma existed prior to service, is it also clear and unmistakable that the asthma did not increase in severity beyond its natural progression during the Veteran’s service? c) If the Veteran’s asthma did not clearly and unmistakably preexist service, is it at least as likely as not (i.e., is it is 50 percent or more probable) that his asthma had its onset in service, or is otherwise related to service? In providing the above-referenced opinion, the examiner is requested to specifically comment on the significance of the February 2017 private clinician’s opinion that the Veteran’s asthma was caused by his service in the Air Force? A complete rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue of service connection for asthma should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.