Citation Nr: 21076485 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 11-11 872 DATE: December 23, 2021 ORDER Service connection for a visual distortion disability is denied. Service connection for an eardrum disability is denied. Service connection for right ear hearing loss is denied. REMANDED Service connection for a nasal condition is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran's visual distortion disability was related to active service. 2. The Veteran does not currently have an eardrum disability other than tinnitus, which has already been granted service connection. 3. The Veteran's right ear hearing loss is not currently severe enough to qualify as a hearing loss disability (as defined for VA compensation purposes). CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for a visual distortion disability. 38 U.S.C. §§ 105(a), 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria have not been met for service connection for an eardrum disability other than tinnitus. 38 U.S.C. §§ 105(a), 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria have not been met for service connection for right ear hearing loss. 38 U.S.C. §§ 1101, 1131, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to March 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2008, the Veteran submitted a Notice of Disagreement with the March 2008 rating decision. In June 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in September 2016, February 2019, and November 2020 when it was remanded for additional development. Concerning the issues of entitlement to service connection for a nasal condition and hypertension, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). Concerning the other issues on appeal, the Board finds that there has been substantial compliance with its prior remand directives. Id. During the period of the appeal, in June 2021 and July 2021 Rating Decisions, the RO granted service connection for a left shoulder disability, a mid and low back disability, a cervical disability, a hip disability, a right knee disability, and gastritis. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Veteran initially filed a claim to establish service connection for chronic sinusitis. In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran's claim to include service connection for a nasal condition, and the issue has been recharacterized as stated on the title page. This will provide the broadest and most favorable review of the Veteran's claim in keeping with the holding in Clemons. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1101. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. § §§ 3.303, 3.307, 3.309. [CONTINUED ON NEXT PAGE] 1. Service connection for a visual distortion disability is denied. Factual Background In a February 2021 VA examination report, the Veteran was diagnosed with ocular allergies and early cortical cataracts. The examiner noted that the diagnosis of ocular allergies affected both the Veteran's eyes while the early cortical cataract only affected the Veteran's left eye. The Veteran reported that he used eye drops to treat his itchy eyes. He was unaware that he was developing early cortical cataracts in his left eye. The VA examiner opined that it was less likely than not that the Veteran's eye conditions were incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's cortical cataract diagnosis was age appropriate and was, therefore, less likely than not caused or incurred by the Veteran's current visual distortion/reduction conditions, or active service. Additionally, the VA examiner noted that there was no evidence of the Veteran's ocular allergies manifesting during service. His service treatment records contained no complaints, diagnosis, or treatment for this condition. Legal Analysis The Board has not overlooked the Veteran's statements concerning his visual distortion disability. While the Veteran is competent to observe his vision symptoms, he does not have the training or credentials to provide a competent (medically qualified) opinion as to the cause of his condition or whether it was related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the February 2021 VA examination report, finding no causal link between the Veteran's ocular allergies and early cortical cataract and active service to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for an eardrum disability is denied. Factual Background In a March 2021 VA examination report for ear conditions, the Veteran was diagnosed with tinnitus. On examination, the Veteran's external ear was normal, his ear canal was normal, tympanic membrane was normal, gait was normal, Romberg test was normal, Dix Hallpike test was normal, and Limb Coordination test was normal. The Veteran was not diagnosed with any other ear condition other than tinnitus. The Board notes that in a previous February 2019 Board decision, the Veteran was granted service connection for tinnitus. Legal Analysis The Board has not overlooked the Veteran's statements concerning his claimed eardrum disability. While the Veteran is competent to report his observable ear symptoms, he does not have the training or credentials to provide a competent (medically qualified) opinion as to whether he has an eardrum disability, orassuming the disability is presentthe cause of the condition or whether it was related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because the Veteran has no other diagnosed ear condition other than tinnitus, and because his tinnitus has already been granted service connection in a February 2019 decision, there is nothing to grant service connection for. It is impossible to grant service connection for the same disability twice. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. In this case, the evidence discussed above establishes that the Veteran is only diagnosed with tinnitus, a disability that has already been granted service connection. In the absence of a current disability or than tinnitus, the claim for an eardrum disability must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for right ear hearing loss is denied. Factual Background The Veteran contends that his right ear hearing loss is related to active service. The Board notes that the Veteran was granted service connection for left ear hearing loss in a November 2020 Board decision. For purposes of applying VA laws, impaired hearing is considered a disability when it reaches a certain level of severity: that is, when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. In a March 2021 VA examination report, the Veteran reported his belief that his hearing loss and tinnitus were caused by an explosion in 1990, during active service. He reported that his hearing was impaired and that he switched from law enforcement to being a security specialist in November 2011. A March 2021 VA audio examination report revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 25 25 LEFT X X X X X Speech audiometry testing revealed a speech recognition score of 100 percent in the right ear. The Board notes that the audiometric results for the Veteran's right ear does not qualify as a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Legal Analysis The Board has not overlooked the Veteran's statements about his reported right ear hearing loss. The Veteran is competent (qualified) to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning diminished auditory acuity (that is, observable levels of increasingly severe hearing loss) have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, there is no basis for concluding that a lay person such as the Veteran is competent to identify whether the severity of his hearing loss represents a disability as defined in 38 C.F.R. § 3.385, in the absence of specialized training, which in this case the Veteran has not established. Therefore, the Board finds that the March 2021 VA examination report is the most probative evidence of record, because the examiner conducted audiological testing and based the conclusion on those objective tests. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. In this case, the evidence discussed above establishes that the Veteran's right ear hearing loss does not rise to the level of severity to be considered a hearing loss disability as defined for VA disability compensation purposes. In the absence of a current disability, the claim for right ear hearing loss must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a nasal condition is remanded. In a March 2021 VA examination report, the examiner noted that the Veteran did not have a diagnosis of sinusitis. X-ray results showed that the Veteran's paranasal sinuses were clear with no evidence of sinusitis. In a June 2021 addendum opinion, the examiner opined that, after reviewing the Veteran's medical history, and based on his examination findings, the Veteran did not have a current chronic sinus condition at any point from April 2006 to the present. However, the VA examiner noted that it was possible that the Veteran's reported observable symptoms might be something else, such as allergic rhinitis. The Board notes that no examination or opinion was ever completed to determine if the Veteran had allergic rhinitis or any other condition that might cause the reported symptoms, and if so, whether that condition might be related to active service. Because of this, a new VA examination is necessary. 2. Service connection for hypertension is remanded. In a March 2021 VA examination report, the Veteran was diagnosed with hypertension. The Veteran reported that the onset of his disability was during active service. He recalled having elevated high blood pressure and some intermittent headaches. His blood pressure tended to run in the 140 to 160 range. The VA examiner opined that it was less likely than not that the Veteran's hypertension was incurred during service because there was no mention of hypertension in the Veteran's service treatment records. The Board notes that this opinion is conclusory and ignores the Veteran's lay statements of experiencing hypertension during active service. Because of this, a new opinion is necessary to determine if the Veteran's current hypertension is related to active service. The matters are REMANDED for the following actions: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for a VA examination to determine the identity and cause of any diagnosed nasal condition, to include allergic rhinitis or any other medical condition that might be causing the reported symptoms. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed nasal condition is causally related to active service or represent the initial manifestations of the Veteran's current disability. In reaching any conclusion, the examiner must consider the June 2021 VA opinion that suggested that the Veteran might have allergic rhinitis. 4. Arrange for the Veteran's file to be forwarded to a VA examiner for a clarifying addendum opinion regarding the likely cause of the Veteran's hypertension. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is directly related to active military service or represents the initial manifestations of his disease. In reaching any conclusion, the examiner should note that the Veteran has reported that he experienced hypertension and intermittent headaches during active service. [CONTINUED ON NEXT PAGE] 5. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.