Citation Nr: 21020854 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 06-24 758 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected peripheral vestibular disorder and/or tinnitus, is denied. Entitlement to an initial compensable rating for epistaxis is denied. FINDINGS OF FACT 1. There is no hearing loss disability for VA purposes. 2. There is no evidence of 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected peripheral vestibular disorder and/or tinnitus, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to an initial compensable rating for epistaxis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Air Force from May 2000 to September 2004. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2004 rating decision (which denied service connection for bilateral hearing loss) and a February 2013 rating decision (which implemented the Board’s January 2013 grant of service connection for epistaxis and assigned an initial 0 percent rating effective September 16, 2004). The issue of entitlement to service connection for bilateral hearing loss was remanded for additional development by the Board in September 2009, May 2011, and January 2013. A June 2014 Board decision denied service connection for bilateral hearing loss and remanded the matter of the rating for epistaxis. The Veteran appealed the Board’s denial of service connection for bilateral hearing loss to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a January 2015 Joint Motion for Partial Remand (JMPR) by the parties. CAVC vacated and remanded the matter for compliance with the JMPR instructions. In February 2015, August 2016, and August 2019 the Board again remanded the matter for additional development. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in March 2013.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  In the August 2019 remand, the Board directed the RO to ask the Veteran to provide the necessary releases for the VA to secure records of all medical treatment he has received from the Florida Department of Corrections. In November 2019, December 2019, January 2020, and May 2020 notification letters, the RO requested records from the Florida Department of Corrections and the Form 21-4142 were included in these letters. To date, the VA has not received any private records or completed release forms. There has been substantial compliance with the Board’s prior remand orders demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran is currently incarcerated and is not expected to be released in the near future. VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as those individuals are entitled to the same care and consideration given to non-incarcerated Veterans. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See Bolton v. Brown, 8 Vet. App. 185, 191, (1995) (discussing 38 U.S.C. § 5711). Nonetheless, VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and with a request that their medical personnel conduct an examination on behalf of VA; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. In the August 2016 remand, the Board directed the RO to take all reasonable measures to schedule the Veteran for the examinations, to include determining whether he may be escorted to a VA facility, whether he may be examined by VA or VA fee-basis providers at the prison, or whether prison medical providers (at VA expense) could complete a Disability Benefits Questionnaire (DBQ). Review of the record showed that an examination (for epistaxis) was scheduled at the prison in January 2019, and that a VA examiner entered the facility to conduct it. However, after nearly three hours of waiting, the examiner left the facility without examining the Veteran as the prison was in “count” (locked down). Later in January 2019, a scheduled hearing loss examination was cancelled by VA; an associated summary noted that the prison did not transport prisoners, and that an attempt to conduct the examination at the prison “is considered dangerous” and therefore was cancelled. In the August 2019 remand, the Board directed the RO to take all appropriate measures consistent with VA’s guidelines for developing claims of incarcerated veterans), contact the Veteran’s correctional facility, or state corrections authorities, to make all feasible arrangements for examinations of the Veteran to assess the current severity of his service-connected epistaxis and to determine the nature and likely etiology of his claimed bilateral hearing loss. On a June 2020 document, the RO indicated they were able to speak to someone at the correctional institute regarding the Veteran’s hearing examination. The correctional officer clarified that the facility did not have the equipment to conduct the necessary examination by either prison personnel or outside medical staff. Further, the correctional officer stated that it was not possible for security reasons to have the Veteran escorted to an outside facility for the examination. On a September 2020 document, the RO indicated that where the Veteran was incarcerated the prison did not allow inmates to leave without physical restraints. The RO noted that mechanical restraints (handcuffs, waist-chains, and/or leg shackles etc.) must be removed from the incarcerated Veteran upon entry into VA facilities per policy. Further, there were not any VA examiners available to go to the prison where the Veteran was incarcerated. Due to conflicting policies, the Veteran could not be examined in person. The Board finds that no further attempts to afford the Veteran a VA examination are necessary. He is incarcerated for the foreseeable future, and the authorities at the correctional facility will not permit the Veteran to leave the facility. VA has made substantial efforts to examine the Veteran under the circumstances, and no further development is necessary in this regard. The Board will address the matters based on the record before it. As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any additional issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is a listed condition, with a one year presumptive period dating from separation from service. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran contends that he has bilateral hearing loss was a result from his in-service noise exposure and motor vehicle accident (MVA). However, there is no competent, credible, and adequate evidence of a VA hearing loss disability for VA purposes. As was noted in the January 2015 CAVC decision and JMPR, examinations to that point were found to be inconsistent and unrepeatable. Such continues to be true of the examinations since. No examiner has been able to obtain reliable results on examination of the Veteran, and as is discussed above, further efforts to secure an examination at this time would not be productive. Although the Veteran is competent to state that he experiences decreased hearing, the record does not show that he has the experience or training necessary to diagnose himself with hearing loss for VA purposes. This determination requires the ability to administer and interpret audiograms and speech recognition tests. It does appear that the Veteran does have some variability of hearing acuity, and measurable loss at at least some frequencies, but the Board cannot find a disability under the applicable regulations. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007). For these reasons, the preponderance of the evidence weighs against the claim for service connection for hearing loss. VA’s benefit-of-the-doubt doctrine does not apply under the circumstances, and accordingly the claim is being denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran’s disability is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (Code) 6502, for deviation of the nasal septum. Code 6502 provides a 10 percent rating for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. In October 2004, the Veteran was afforded a VA examination. The Veteran was diagnosed with recurrent epistaxis. The Veteran reported that he had problems with recurrent epistaxis which had been primarily anterior. During the physical examination he had no tenderness over the maxillary antrum, medial canthi, or frontal area. His neck vessel and thyroid were normal. There was no adenopathy. His anterior rhinoscopy had very erythematous mucosa, some mucoid discharge, and bleeding area on Kiesselbach plexus area on the right. His right oral cavity was clear. A December 2006 VA treatment records documented that the Veteran had some irritations inside his nose. In December 2009, the Veteran was afforded a VA examination. The Veteran reported that he had epistaxis since serving in the Middle East. He reported that his left side was worse than his right. He indicated that he had them consistently. The examiner noted that the Veteran felt that having a thin septum had something to do with his condition. He indicated that during cold weather he wakes up with nosebleeds. He reported that when he cleans his nose, he removes thick clumps (mixture of mucus and blood) from his nose. He indicated his symptoms were worse during the wintertime. He reported that his flare-ups could last for a week or two. During the physical examination, the examiner noted that there were no nasal polyps. The nasal mucosa was not red or congested. There was no prominent surface vessel in the anterior part of the septum or turbinates seen. His nose was slightly dry, which was probably due to a cold front that had come for the past 24 to 36 hours. The right side was about 20 percent obstructed due to his mild bowing of the septum. His left side was zero percent obstructed. There was no tenderness upon palpation over the maxillary and frontal sinuses. There was no intranasal purulent discharge or crusting seen. The pharynx was clear. There was no post-nasal drainage. There was no hypertrophy of any posterior oropharyngeal lymphoid tissue to suggest chronic drainage. There was no evidence of active or old bloody post-nasal drainage. On September 2010 VA treatment note documented that the Veteran was seen for nasal bleeding. The Veteran complained of his nose crusting and clotting. The Veteran had nasal bleeding, nausea, and vomiting. He reported that this occurred a short period after drinking Mona vie and felt that he might have gotten a bad batch. In June 2011, the Veteran was afforded a VA examination. The Veteran reported that his condition would occur about 3 or 4 times a week and lasted a minute or two. The Veteran’s neck vessels were normal. There was no adenopathy. There was no tenderness over the maxillary, antra, medial canthi, or frontal areas. The anterior rhinoscopy revealed some deviation of the septum to the right, nonobstructing. There was a specific bleeding point, Kiesselbach plexus, on the right side. The left side was clear with no polyps, crusting, or discharge. His oral cavity was clear. On April 2013 notice of disagreement, the Veteran indicated that he felt his condition warranted a 10 percent rating. He indicated that a one-time evaluation from a VA examination was only a snapshot in time. He indicated that he had a history of emergency walk-in visits with the VA to control excessive nose bleeding making it extremely difficult to breathe through his nose. A November 2013 VA treatment noted that he had clear nasal drainage. In October 2020, a medical opinion was obtained. The examiner indicated that there was no evidence of any chronic issues with epistaxis to include any current symptoms or treatment. The examiner stated his epistaxis had no impact on his activities of daily living or occupational functioning. Here, the Veteran reports daily nose bleeds, throughout the rating period. However, the record showed a nosebleed in September 2010. The Veteran indicated that this occurred a short period after drinking MonaVie and felt that he might have gotten a bad batch. He did not indicate that this was because of his condition. All examinations showed that there was less than 50 percent obstruction of the Veteran’s nasal passage on both sides. His symptoms do not meet or approximate the criteria for a compensable disability rating for epistaxis at any time under Code 6502. No other diagnostic code pertaining to diseases of nose and throat is applicable. The Board has considered the Veteran’s lay assertions regarding severity and finds that they support no more than the currently assigned 0 percent (noncompensable) evaluation. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.