Citation Nr: 0002775 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-08 468 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a deviated nasal septum. 3. Entitlement to service connection for a nose and throat condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from November 1964 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1997 RO decision which denied service connection for hearing loss, a deviated nasal septum, and a nose and throat condition (besides a deviated nasal septum). The case was remanded by the Board in August 1998, and it was returned to the Board in November 1999. FINDINGS OF FACT 1. The veteran has not submitted competent evidence to show a plausible claim for service connection for hearing loss. 2. The veteran has not submitted competent evidence to show a plausible claim for service connection for a deviated nasal septum. 3. The veteran has not competent evidence to show a plausible claim for service connection for a nose and throat condition. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for service connection for a deviated nasal septum is not well grounded. 38 U.S.C.A. § 5107(a). 3. The veteran's claim for service connection for a nose and throat condition is not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Army from November 1964 to January 1968, including overseas service in Europe. The October 1964 examination for enlistment into service showed all pertinent systems were within normal limits. On the history portion of the enlistment examination, the veteran indicated he had or had had hay fever. The service medical records show the veteran was treated for an upper respiratory infection with pharyngitis and right otitis in December 1964. He was seen for diarrhea and an earache in September 1965. It was noted that he had used medications for earaches in the past; wax was rinsed from his ears. In October 1965 he was seen for complaints of a sore throat for 4 days. He had a very thick postnasal drip and soreness near his windpipe. He was told to take increased fluids and lozenges, gargle, and use nose drops. Later in October 1965 he had complaints of a sore throat, a head cold, and a cough. He was given medications. On the medical history portion of his August 1967 service separation examination, the veteran checked boxes indicating that he had had ear, nose, or throat trouble, and hay fever. The doctor reported that the veteran had had seasonal hay fever, no diagnosis was needed, and the veteran had no current ear, nose, or throat problems. In response to the question of whether he ever had an operation, the veteran reported a knee operation at age 19. In response to the question of whether he had received medical treatment in the past 5 years, he reported treatment at the orthopedic clinic at Fort Ord, California in 1965. Clinical examination of the nose and sinuses was normal. Examination of the eardrums showed scarring of both eardrums. Examination of the mouth and throat showed hypertrophy of the cervical lymph nodes. Audiometric examination revealed pure tone thresholds in the right ear of 30, 25, 20, 15, 20, and 15 decibels at 250, 500, 1000, 2000, 4000, and 8000 hertz, respectively. Pure tone thresholds in the left ear were 20, 20, 15, 15, 10, and 15 decibels at the same frequencies (after conversion from ASA standards at the time to current ISO standards). No hearing loss was noted, and a normal physical profile was assigned for hearing. In an undated statement in his service medical records, the veteran reported that his medical condition had not changed since his August 1967 service separation examination, except that he had started going deaf in his left ear and could not breathe out of his nose. In the veteran's initial claim for VA compensation, received in October 1993, the only disability claimed to have been incurred during service was a right knee condition. Outpatient treatment records from Manchester Family Medicine Association show the veteran was seen for a number of medical conditions from 1984 to 1993. In September 1984 he was seen for a back pain and a left earache. It was reported that that he had problems with his left ear since his discharge from service and he continually got a sensation of fluid caught in the ear and had to use a Q-tip and water to get it out. He said he was once told he did not hear as well in one ear as he did in the other, but could not recall which ear it was. Examination of the right canal and tympanic membrane was normal. After removal of wax from the ear, the drum was seen to be duller than the right. The assessment was cerumen-clogged canal. When seen for an earache in November 1984, the left eardrum was dull and distorted. Examination of the right drum showed serous otitis and a retraction and fluid level. The assessment was bilateral serous otitis and left otitis media. Later in November 1984 he was seen for follow up of his ear infection. His hearing was fine. Examination was within normal limits, without fluid level and good eardrum movement. It was noted that otitis media and otitis externa had resolved, and there was no reaccumulation of cerumen. When seen for dizziness in February 1988, it was noted that he did not have ear pain and his hearing was "O.K." The assessment was mild vertigo. When seen again for dizziness in March 1988, it was noted that he had no ear pain and his hearing was the same. The assessment was vertigo. A CT scan of the head and intra-auditory canal was normal. In August 1990 the veteran was seen at Manchester Family Medicine Association outpatient clinic for shortness of breath and some hay fever symptoms. It was noted that he had seasonal allergies, usually in late August. Examination of the ears was negative. The assessment was asthmatic bronchitis with history of seasonal allergies. In November 1990 he was seen for head congestion and other symptoms. There was mild erythema of the throat and significant postnasal drip. The tympanic membranes were normal. He was seen for nasal congestion and drip again in March 1991. He reported that he would have these symptoms in the summer months when he was younger but the symptoms were becoming a year round problem. Examination showed marked nasal congestion. The tympanic membranes were normal and there was erythema of the throat and a postnasal drip. The assessment was chronic nasal congestion. In June 1992 it was reported that that he was falling asleep suddenly and this began when he started taking allergy shots a year earlier. In July 1993 he reported his medical history was negative for chronic medical problems. He said he was taking allergy shots for environment allergies. In August 1993 during a preoperative physical for left carpal tunnel syndrome, previous surgeries were noted to include the right knee in 1966 and right wrist for carpal tunnel syndrome in July 1993. In a November 1993 statement, in support of a claim for service connection for a right knee disability, the veteran reported that he had been treated for his right knee condition by a German doctor when he was stationed in Germany in the military. (He later submitted the same statement as part of the current claim to substantiate that he was seen by German doctors during service.) In February 1994 the RO granted service connection for a right knee disability. The veteran was seen at a VA outpatient clinic in June 1996 with complaints of trouble breathing through his nose. He reported a history of nasal obstruction for 15 years and hearing loss since 1966. He reported bilateral ear surgery in 1966, although he was unsure of the procedure. Examination in June 1996 showed nasal valve collapse. The assessment was hearing loss with nasal obstruction. He returned to the ears, nose, and throat clinic in October 1996. Examination showed normal tympanic membranes and moderately swollen nasal mucosa, status post septoplasty. Nasal spray was recommended. The diagnoses were allergic rhinitis and Eustachian tube dysfunction. In October 1996 the veteran filed a claim for service connection for hearing loss and a deviated nasal septum. He said he had an operation for the deviated nasal septum during service. In November 1996 he filed a claim for a nose and throat condition. On November 1996 VA audiometric examination revealed the veteran had pure tone thresholds in the right ear of 20, 20, 20, 40 and 40 decibels at 500, 1000, 2000, 3000, and 4000 hertz, respectively. Pure tone thresholds in the left ear were 20, 20, 20, 35 and 35 decibels at the same frequencies. Speech recognition score using the Maryland CNC Test was 96 percent, bilaterally. The veteran reported a history of pressure equalization tubes inserted in his ears during service. The impression was high frequency hearing loss and occasional tinnitus. The veteran was seen again at the VA ears, nose, and throat clinic in December 1996 for rhinitis and Eustachian tube dysfunction. He said he could not breathe through his nose despite using a nasal spray. It was noted that his tympanic membranes were thickened and his nares were narrow. The assessments were rhinosinusitis and Eustachian tube dysfunction. The veteran testified at a hearing at the RO in January 1997. He related that he had ears, nose, and throat surgery when stationed in Germany. He said he was unsure of the exact procedure, but that he had tubes placed in his ears and had the inside of his nose cut. He said he had not had allergies prior to the surgery in service. He recalled treatment for ear problems from a private doctor after service but the doctor was no longer alive. At an April 1998 Travel Board hearing, the veteran basically reiterated testimony given at the RO hearing. Following the August 1998 Board remand, the RO contacted the National Personnel Records Center and requested any medical records of alleged treatment overseas, and in October 1998 the National Personnel Records Center responded that no records were found. In September 1999 David Boxwell, M.D., wrote a letter for the stated purpose of assisting the veteran in getting service connection for hearing loss, a deviated nasal septum, and other nose and throat conditions. Dr. Boxwell said that he had treated the veteran since 1994 for various problems. He reviewed previously reported findings in the veteran's service medical records. Dr. Boxwell added that the veteran had had tubes placed in his ears and had other apparent nose and throat surgery, including a deviated nasal septum repair, in 1966 and 1967. Dr. Boxwell said that the fact that the veteran indicated that he had had ears, nose, and throat problems on his service separation examination substantiated the change of his condition during service. Finally Dr. Boxwell opined that there was a "high likely hood that his claimed disabilities are service related." In November 1999 Gina Brescia, M.D., wrote a letter for the stated purpose of assisting the veteran in getting service connection for hearing loss, a deviated nasal septum, and other nose and throat conditions. Dr. Brescia said she saw the veteran for a single office visit and the veteran claimed he had had frequent ear infections, difficulty with hearing, and constant tinnitus, and difficulty swallowing related to previous surgeries. On physical examination, the veteran appeared to have a deviated nasal septum, but otherwise his examination was unremarkable. (It was noted he did not have a formal hearing evaluation or detailed ear, nose, and throat (ENT) examination.) Dr. Brescia stated that according to information supplied by the veteran's representative, the veteran claimed no disabilities at his service induction, was treated multiple times for earaches, sore throats, and sinus trouble between 1965 and 1968, and claimed to have had ear, nose, and throat surgery while stationed in Germany. Dr. Brescia noted that the service separation examination showed scarring of both eardrums, hypertrophy of the cervical lymph nodes, and hearing loss, which had not been present when the he entered service. Dr. Brescia opined that there was a "high likelihood that his claimed disabilities are service related." II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The veteran claims service connection for hearing loss, a deviated nasal septum, and a nose and throat condition (besides a deviated nasal septum). His claims present the threshold question of whether he has met his initial burden of submitting evidence to show that his claims are well grounded, meaning plausible. If he has not presented evidence that his claims are well grounded, there is no duty on the part of the VA to assist him in developing his claims, and the claims must be denied. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136 (1994). For the veteran's claims for service connection to be plausible or well grounded, they must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and of causality between the disease or injury in service and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995); Grivois, supra; Grottveit v. Brown, 5 Vet. App. 91 (1993). A. Hearing loss Service incurrence will be presumed for certain chronic diseases, included sensorineural hearing loss, if manifest to a compensable degree within the year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or greater; or when the auditory 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 veteran served on active duty from 1964 to 1968. The service medical records, including the separation examination, do not show a hearing loss disability of either ear under the standards of 38 C.F.R. § 3.385. Service connection is still possible if the veteran currently has a hearing loss disability under the standards of 38 C.F.R. § 3.385, and the condition can be linked to service. Ledford v. Derwinski, 3 Vet.App. 87 (1992). An undated record sometime after the service separation examination notes the veteran complained of a clogged nose and that he was going deaf in the left ear. In this case the Board need not address the question of whether claimed left ear hearing loss is linked to service. The results of the 1996 VA audiometric examination indicate that the veteran does not currently have a left ear hearing loss disability under the standards of 38 C.F.R. § 3.385. The claim for service connection for left ear hearing loss is not well grounded, as there is no current disability. Caluza, supra; Rabideau v. Derwinski, 2 Vet.App. 141 (1992). With respect to the right ear, the service medical records do not show hearing loss. The service statement of the veteran, subsequent to the separation examination, referred to hearing problems in the left ear, not the right one. There is no medical evidence of right ear hearing loss within the year after service (for a presumption of service incurrence) or for many years later. The 1996 VA examination shows the veteran has minimal right ear hearing loss which meets the standards of a current hearing loss disability under 38 C.F.R. § 3.385. The question becomes whether there is competent medical evidence to link the current right ear hearing loss to service. Statements in 1999 from Drs. Boxwell and Brescia purport to link the veteran's hearing loss to service (although the doctors did not specify right ear hearing loss). Neither doctor pointed to any documented findings of hearing loss in service or for years later. Both doctors largely based their opinions on an unsubstantiated history from the veteran that he had ENT surgery during service. However, there is no credible evidence that such surgery took place in service. When reporting prior surgeries at the time of his service separation examination and for years after service, the veteran reported no prior ENT surgery. In his recent testimony and statements, the veteran gave but a vague account of some type of ear procedure in service; he does not remember exactly when the surgery was performed or the nature of the surgery. The opinions of Drs. Boxwell and Brescia are shown to be based on an inaccurate factual premise, including alleged but unsubstantiated ear surgery in service, and thus the medical opinions have no probative value. Reonal v. Brown, 5 Vet.App. 458 (1993). There is no competent medical evidence linking the veteran's current right ear hearing loss to service, and thus his claim for service connection is not well grounded. Caluza, supra. B. A Nose and Throat Condition, including a Deviated Septum The veteran's service medical records show a preservice history of hay fever, apparently seasonal. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. 38 C.F.R. § 3.380. Service medical records from the veteran's 1964-1968 active duty show he had some acute nasal and throat symptoms, such has those associated with common colds, but a deviated nasal septum or other chronic nose or throat disorder was not shown during service. Post-service medical records do not show a deviated nasal septum or other chronic nose or throat condition until the 1990s, many years after service. The veteran now claims he had some sort of nose and throat surgery when he was in service. The service records show no such surgery, and the veteran reported no history of such surgery when asked about surgical history at the time of his service separation examination and on other occasions for years after service. When the veteran was seen at a VA outpatient clinic in 1996, he reported a history of nasal obstruction for 15 years (which would be many years after service). Only later in 1996, when he was claiming service connection, did he recite a history of nose and throat surgery during service. The medical evidence does not show a deviated nasal septum or any other chronic nose and throat condition during service; no related surgery is shown in service; and the claimed conditions are first shown many years after service. For the service connection claims to be well grounded, there would have to be competent medical evidence to link the current disabilities with service. As with the hearing loss claim, the recent opinions of Drs. Boxwell and Brescia, to the effect that the veteran's current deviated nasal septum and other nose and throat problems are due to service, have no probative value since they are based on an inaccurate factual premise (including alleged but unsubstantiated ENT surgery in service). Reonal, supra. As the veteran has presented no competent medical evidence to link a deviated nasal septum and other chronic nose and throat condition, first shown years after service, with his period of active duty, his claims for service connection must be denied as not well grounded. Caluza, supra. ORDER Service connection for hearing loss is denied. Service connection for a deviated nasal septum is denied. Service connection for a nose and throat condition is denied. L. W. TOBIN Member, Board of Veterans' Appeals