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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

 

 

 

NO. 09-1424

 

CLARENCE DREILING, APPELLANT,

 

V.

 

ERIC K. SHINSEKI,

SECRETARY OF VET ERANS AFFAIRS, APPELLEE.

 

 

 

Before HAGEL, Judge.

 

MEMORANDUM DECISION

 

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

 

HAGEL, Judge: Clarence Dreiling appeals through counsel a March 19, 2009, Board of

 

Veterans' Appeals (Board) decision that denied entitlement to VA benefits for Meniere's disease.1

 

The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the March 2009

 

Board decision. Because VA was not obligated to provide Mr. Dreiling with a medical examination, the Court will affirm the March 2009 Board decision.

 

 

I.  FACTS

Mr. Dreiling served on active duty in the U.S. Army from October 1961 to October 1963. In August 2003 Mr. Dreiling was awarded VA benefits for tinnitus and in July 2004 he was awarded VA benefits for bilateral hearing loss. At a September 2003 VA examination, Mr. Dreiling denied experiencing any vertigo or other ear pathology.

 

 

 

1M eniere's disease is hearing loss, tinnitus, and vertigo resulting from a no n-pus-related disease of the lab yrinth with swelling.  D OR LA ND 'S ILLU S TR A TED M ED IC A L D IC T IONA R Y 54 6 (31st ed. 200 7).  T he C ourt notes that the M arch

2009 B oard decision also denied claims for V A benefits for hypertension, a left foot disord er, rhinitis, and a psychiatric disorder.  H o w e ver, in his brief, M r. D reiling expressly aband oned these issues, and they are therefore not before the C ourt.   See Grivois v. Brown, 6 V et.A pp . 136 , 138 (19 94 ) (issues or claims not argued on appeal are con sid ered abandoned).

In March 2007, Mr. Dreiling filed a claim for VA benefits for Meniere's disease. Later that month, in a deferred rating decision, a VA regional office stated "[n]o treatment shown in service medical records–no exam[ination] needed." Record (R.) at 314. In a May 2007 rating decision, the regional office denied entitlement to VA benefits for Meniere's disease because there was no evidence of that condition during service and because there was no post-service evidence of a current diagnosis.  Mr. Dreiling appealed that decision to the Board.

In October 2007, Mr. Dreiling underwent a VA audiological examination for his service- connected bilateral hearing loss and tinnitus.   The examiner diagnosed moderately- severe sensorineural hearing loss in each ear and tinnitus.

In the March 2009 Board decision currently on appeal, the Board found that there was no medical diagnosis of Meniere's disease of record. The Board explained that a VA examination was not warranted because "a recent VA audiology examination [ ] has been conducted with respect to a separate claim for an increased rating of hearing loss.  This examination and the other medical evidence of record provide the evidence necessary to adjudicate this claim."  R. at 7.

On appeal, Mr. Dreiling argues that he is entitled to a VA medical examination because he submitted a claim with a current diagnosis from a private audiologist. He also argues that he claimed that his Meniere's disease was secondary to his bilateral hearing loss and tinnitus and that VA failed to adjudicate his claim pursuant to 38 C.F.R. § 3.310.

In response, the Secretary argues that Mr. Dreiling is not entitled to a VA medical examination because there is no evidence in the record of a current diagnosis or an in-service injury. The Secretary also asserts that Mr. Dreiling has made a material misrepresentation of fact because the private audiologist reports of record make no mention of Meniere's disease. The Secretary also notes that, in his conclusion, Mr. Dreiling states that he "submitted a plausible claim for service connection for hypertension/heart condition" but that these issues were not developed by the regional office and therefore are not on appeal.  Secretary's Brief at 5-6.

 

II.  ANALYSIS

 

A.  Entitlement to VA Medical Examination

 

The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim."  38 U.S.C. § 5103A(d)(1).  Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2010), VA must provide a claimant a medical opinion or examination

 

if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but

 

(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;

 

(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,

§ 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

 

(C) Indicates that the claimed disability or symptoms may be associated with the  established  event,  injury,  or  disease  in  service  or  with  another service-connected disability.

 

See also 38 U.S.C. § 5103A(d)(2). The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183,

184 (2000). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91. 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

Here, the Court concludes that the Board did not clearly err in determining that Mr. Dreiling is  not  entitled  to  a  VA  medical  examination  because  he  has  not  met  the  requirements  of

§ 3.159(c)(4)(i). First, the Court notes that there is no competent lay or medical evidence that Mr. Dreiling has a current diagnosis of Meniere's disease.  To the contrary, at a September 2003 VA medical examination, Mr. Dreiling denied experiencing any vertigo and any other ear pathology. Further, although Mr. Dreiling states in his brief that a private medical examination report contains

a current diagnosis, neither the October 2003 nor the January 2005 private medical reports contain any diagnosis of Meniere's disease. In this regard, the Court is troubled by Mr. Dreiling's counsel's mischaracterization of the evidence and trusts that he will be more careful so as to not make such oversights in the future. See U.S. VET.APP. R. ADM. & PRAC. 4(a) (holding practitioners before this Court to the disciplinary standards of the American Bar Association's Model Rules of Professional Conduct); MODEL RULES OF PROF'L CONDUCT R. 3.3(a)(3) ("A lawyer shall not . . . offer evidence that the lawyer knows to be false."). Finally, there is no evidence of record that Mr. Dreiling suffered from any symptoms of Meniere's disease in service or any indication that his claimed Meniere's disease is related to an alleged in-service event, injury, or disease. Accordingly, the Board did not clearly err in determining that Mr. Dreiling is not entitled to a VA medical examination for his claimed Meniere's disease. See Nolen, 14 Vet.App. at 184.

B.  Secondary Service Connection

 

Mr. Dreiling also vaguely argues that the Board erred because he claimed that his Meniere's disease is secondary to his service-connected bilateral hearing loss and tinnitus, and the Board did not adjudicate his claim pursuant to a theory of secondary service connection. See 38 C.F.R. § 3.310. The Court concludes that this argument is without merit, because a theory of secondary service- connection was not expressly raised before VA nor implicitly raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory."). Specifically, in his brief, Mr. Dreiling asserts that his "claim has not been evaluated pursuant to 38 C.F.R. § 3.310 as claimed on March 7,

2007."  R. at 332.  However, a review of Mr. Dreiling's claim filed on March 7, 2007, makes no mention of secondary service connection; it merely states "I would also like to formally open my claim for the following condition[]: . . . Meniere's Disease." R. at 332. In addition, a review of the record reveals no indication that a theory of secondary service connection was raised. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or by the evidence of record), aff'd sub nom. Robinson v. Shinseki, supra; Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) (stating that "'the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents