Citation Nr: 0215479 Decision Date: 11/01/02 Archive Date: 11/14/02 DOCKET NO. 99-20 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for Meniere's disease, secondary to the service-connected hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from October 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). Having reviewed the evidence of record, the Board is of the opinion that this matter is ready for appellate review. FINDINGS OF FACT 1. The appellant sustained one confirmed incident of acoustic trauma while on active service, and such acoustic trauma led to hearing loss and tinnitus. 2. The appellant is not a veteran of combat. 3. The preponderance of the informed medical opinion evidence indicates that Meniere's disease was not caused by in- service noise exposure or the service-connected hearing loss and tinnitus. CONCLUSION OF LAW Meniere's disease was not incurred or aggravated by any incident of service, including any service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter: VA's Duty to Notify and Assist There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) that is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The United States Court of Appeals for Veterans Claim (Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001) that the VCAA was potentially applicable to all claims pending on the date of enactment, citing Karnas v. Derwinski, 1 Vet. App. 308 (1991). Subsequently, however, the United States Court of Appeals for the Federal Circuit held that Section 3A of the VCAA (covering the duty to notify and duty to assist provisions of the VCAA) was not retroactively applicable to decisions of the Board entered before the effective date of the VCAA (Nov. 9, 2000). Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002); See also Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In reaching this determination, the Federal Circuit appears to reason that the VCAA may not apply to claims or appeals pending on the date of enactment of the VCAA. However, the Federal Circuit stated that it was not reaching that question. The Board notes that VAOPGCPREC 11- 2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of enactment. Further, the regulations issued to implement the VCAA are to be applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department and regulations of the Department are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes of this determination, the Board will assume that the VCAA is applicable to claims or appeals pending on the date of enactment of the VCAA. The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West Supp. 2001). The Board has carefully considered the evidence of record and is of the opinion that the provisions of the VCAA have been satisfied. First, VA has obtained medical opinion evidence from both a VA physician and an independent medical examiner with specific inquiry directed towards resolving whether the appellant's Meniere's disease was incurred or aggravated by any incident of service. The reports of these examinations reflect that the examiners were fully informed as to the appellant's medical and military history. Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995). The Board also concludes that the appellant has been aware of the evidence needed to substantiate his claim, and has sought to obtain it. First, the appellant was provided with a copy of the June 1998 rating decision which denied his claim, as well as apprised of the laws and regulations pertaining to his case in the Statement of the Case issued in August 1999. That he was aware of the reason for the denial of his claim is evidenced by his submission of several medical articles supporting the connection between hearing loss and Meniere's disease - the basis for the denial of his application for service connection. Upon the continued denial of the claim, the appellant responded to the basis for the denial of the claim by obtaining medical opinions from two physicians. In Quartuccio v. Principi, 16 Vet. App. 183 (2002), it was held that 38 U.S.C. § 5103(a), as amended by VCAA, and 38 C.F.R. § 3.159(b), as recently amended, 66 Fed. Reg. 45620, 45630 (Aug. 29, 2001), require VA to inform claimant of which evidence VA will provide and of which evidence claimant is to provide. In this matter, all relevant evidence necessary to decide the case has been obtained: (1) the appellant has proffered medical opinions that, when presumed credible, are suggestive of a linkage between the service-related incident and his current disorder, and he has not alluded to the existence of any other information which has not been obtained; (2) medical inquiry and opinion evidence to develop the claim have been generated by VA; and (3) the Board is unaware of any further information which could be adduced which would substantiate the claim at issue. (In this regard, the question of whether the medical texts or treatises cited by Craig N. Bash, M.D., need to be made part of the record is discussed below.) The Board further concludes the submissions from the claimant demonstrate that he possessed actual knowledge of the type of evidence necessary to substantiate his claim and that it is his ultimate responsibility to provide the evidence to substantiate his claim. He further demonstrated his understanding that it was his responsibility to obtain and submit such evidence. In these circumstances, a further advisement under the VCAA is not warranted. The Merits of the Claim The appellant maintains that his service-connected bilateral hearing loss and tinnitus caused his diagnosed Meniere's disease. Having carefully considered all of the evidence of record in light of the applicable law, the Board finds that the clear preponderance of the evidence is against the claim and the appeal will be denied. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Secondary service connection shall be awarded when a disability is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The resolution of this matter must begin with the question of the nature of the events in service and the history of the disability thereafter. In this regard, the Board is compelled to conclude that the record demonstrates the appellant's consistent and vast exaggeration of the claimed in-service noise exposure as well as patent contradictions in his reports of post-service symptoms. Therefore, the Board holds that the credibility of the appellant's evidentiary assertions in support of his claim is completely undermined. The point is critical, as the appellant's report to examining and treating physicians is central to the development of medical opinion evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) [observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches]. The Board finds that it would be pointless to waste scarce adjudicative resources to conduct a complete roll call of all the contradictions in the claimant's evidentiary assertions concerning material facts in this matter. It is sufficient to demonstrate his lack of credibility to highlight the material contradictions concerning two critical elements: the nature of events in service and the dates of onset of vertigo post service. During the course of an April 1981 examination, the appellant informed the examiner that he had sustained his hearing loss when "some dynamite exploded at a close distance." During an October 1997 VA examination, the appellant reported that his hearing loss was incurred in 1966 when he was standing "within feet of a 10 pound [detonation] cord which went off," and which knocked him to the ground. During a December 1997 audiological examination conducted by VA physician R.L. Swanson, M.D., the appellant reported that he was "exposed to heavy weapons fire and jet engine noise" while on active duty, and that he sustained his hearing loss when he was in close proximity to an "explosive device" in 1966. Perhaps the appellant's most blatant misrepresentation of fact is found in a November 1998 VA medical treatment note, where the appellant is recorded as having informed examiners that he had sustained his hearing impairment in a 1966 explosion, after which he was in a "coma for 3 days." Contrary to these repeated misrepresentations, the Board finds that the credible evidence of record reflects a single documented episode of explosive audio trauma, occurring while the appellant was assigned to a stateside reserve personnel center. In a September 1976 statement, Major T.E.H. recalled that at some point during the appellant's active duty, the appellant was injured when material he was burning exploded in the incinerator. Major H. stated that the appellant was knocked down by the blast, and was treated by a local hospital and released. He added that although the incident was not investigated because the appellant's injury did not involve hospitalization in excess of 24 hours, the probable cause of the incident the explosion of aerosol cans that were among the debris to be burned. The Board concludes that this statement by a witness with personal knowledge made in 1976 is entitled to far more probative value than the subsequent evidentiary assertions of the claimant made much longer after the event and in the context of a claim for benefits. This statement makes it manifest that the allegations that the veteran was exposed to the detonation of dynamite or other very powerful explosives as well as the allegation that he was in a coma for three days are completely lacking in credibility. Based upon this single, documented incident of in-service noise exposure, service connection was granted for hearing loss and tinnitus in a December 1976 rating decision. The appellant's service records indicate that he served as a motor vehicle operator. There can be no doubt in this regard that the appellant this assignment may well have involved some exposure to engine noises of undeterminable severity, but although the appellant served in Vietnam, there is absolutely no evidence that he engaged in combat with the enemy. Cf. 38 U.S.C.A. § 1154(b) (Providing in substance that in the case of veterans of combat, VA must accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service). The appellant is not a combat veteran, and for the Board to presume either the severity of noise exposure or other incidents of audio trauma would amount to pure speculation. Even if the veteran could be deemed to be one who engaged in combat with the enemy, his evidentiary assertions are not entitled to the presumptions provided in 38 U.S.C.A. § 1154(b) because his evidentiary assertions concerning events in service, standing by themselves and without consideration of any other evidence, contain material contradictions as to the explosive trauma and the alleged "coma" for three days. Thus, they are not credible or "satisfactory" and the presumption is not for application. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the onset of vertigo, there is no clinical evidence of vertigo in service or for many years thereafter. VA examinations in 1976 and 1981 were negative. When the claimant was seen in June 1994 by VA with regard to his complaint of a sudden loss of left ear hearing approximately two months earlier, it was also recorded for treatment purposes that he denied the presence of vertigo. On the same document his history of ear pathology was also described, and this made no reference to any prior episodes of vertigo or dizziness. At a VA examination in October 1997, he reported the onset of vertigo in 1993. Subsequently, in various statements between 1998 and 2000, the claimant alleged the presence of vertigo from approximately 1983 or 1984. The Board finds the assertion that vertigo was present before 1993 is clearly false and in contradiction to the earlier and far more credible statements of medical history provided by the claimant prior to 1998 as well as the negative clinical evidence. The credibility of the claimant's evidentiary assertions concerning both events in service and the history of the disability post service is critical because of the obvious importance of these factors in the formation of the various medical opinions that have been obtained relative to the claim at issue. To the extent that the appellant has conveyed to medical examiners these material misrepresentations of his medical history and those physicians have relied upon such misrepresentations in formulating their opinions, the probative weight of the opinions is effectively nullified. See Boggs v. West, 11 Vet. App. 334, 340 (1998); Swann v. Brown, 5 Vet. App. 229, 233 (1993). In other words, the mere endorsement of a physician can not restore or enhance the probative value of a medical opinion founded upon false premises. Once the probative value of the claimant's material evidentiary assertions is determined, the Board finds that the clear preponderance of the credible medical opinion evidence is against the claim. In a December 1997 audiological examination conducted by VA physician R.L. Swanson, M.D., the appellant reported that he was "exposed to heavy weapons fire and jet engine noise" while on active duty, and that he sustained his hearing loss when he was in close proximity to an "explosive device" in 1966. The appellant added that he had been experiencing vertigo since 1993, and that this was accompanied by fullness and temporary loss of hearing in his left ear. He added that these episodes were sometimes associated with nausea and vomiting. Dr. Swanson diagnosed the appellant to have bilateral sensorineural hearing loss which was mild to severe in the right ear and moderate to profound in the left ear "with questionable functional overlay;" bilateral tinnitus; and a history of probable left ear Meniere's syndrome. He commented: If the diagnosis of Meniere's disease is accurate, an added hearing loss in the effected ear would be consistent with that diagnosis and directly related, but the condition would not explain the hearing loss in the unaffected ear, nor would it likely account for the major portion of his loss in the affected ear, given it's (sic) historical progression. Because Dr. Swanson did not respond to the inquiry at issue (i.e., whether the appellant's Meniere's disease was caused by the service-connected hearing loss and tinnitus), the appellant was reexamined by Dr. Swanson in May 1998. See 38 C.F.R. § 4.2 ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Upon his May 1998 reexamination, Dr. Swanson reported that he had reviewed the appellant's claims folder. He reiterated the essential history of the development of the appellant's disorder, and stated that while the appellant had Meniere's disease, he did not believe it was secondary to the appellant's service-connected hearing loss and tinnitus. Instead, he observed that the onset of the Meniere's syndrome had added to the severity of the previously existing hearing loss and tinnitus. In a May 2000 letter, J.R. Adams, M.D. of the Department of Otolaryngology at the Oregon Health Sciences University observed that the appellant had had "several concussive injuries while in the service," including "explosions, gunfire, etc." He noted that there were several reports in medical literature of "post-concussive Meniere's disease," and that in the appellant's case, "it is as likely as not that these concussive injuries also lead to his Meniere's disease." It is evident from Dr. Adams' report that he accepted as valid the appellant's account of his in-service acoustic trauma, which as noted above is belied. There is no indication that Dr. Adams personally reviewed the correct history of the appellant's in-service acoustic trauma. To that extent, (i.e., that the appellant had multiple concussive injuries including "gunfire" and multiple "explosions"), the probative value of his opinion is nullified as it is founded upon premises that are false. Further, although Dr. Adams sets out that Meniere's disease is thought "in some cases to be due to a concussive injury" he sets out no rationale or reasons as to why the appellant's case is one such medical situation, and provides only a conclusory opinion. The record thus included conflicting medical opinion evidence, as well as several medical articles relative to the development of the disorder that the appellant forwarded with his October 1998 Notice of Disagreement. Also received after the submission of Dr. Swanson's opinion, in a September 2000 letter, Craig N. Bash, M.D., opined that the appellant's Meniere's disease was secondary to his service exposure to noise. His opinion is discussed below. Due to the conflicting medical evidence in this case, in April 2001, the Board caused the appellant's claims folder to be reviewed by an independent medical examiner. This inquiry was undertaken under the authority of 38 U.S.C.A § 5109(a) (Providing in substance that when, in the judgment of VA, expert medical opinion, in addition that available within VA, is warranted by the medical complexity or controversy involved in a case being considered, VA may secure an advisory medical opinion from one or more independent medical experts who are not VA employees.); see 38 C.F.R. § 3.328 (When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of the VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion. Approval for an opinion shall be granted only upon a determination that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion.). In June 2001, Robert A. Goldenberg, M.D., Professor and Chairman of the Department of Otolaryngology at Wright State University issued his report. He opined that the degree of medical probability that the appellant's Meniere's disease was caused or aggravated by his service-connected bilateral hearing loss was less than 15 percent. As a predicate to his opinion, Dr. Goldenberg reported that he had reviewed the appellant's claims folder, as well as the other previously submitted medical opinions. His opinion reflects the following points: 1. There was reference to a 1966 explosion caused by the puncture of several aerosol cans in a closed environment, but that the "several histories to multiple explosions and concussions" were "not well documented;" 2. The medical record included a 1967 audiogram detected a low frequency hearing loss pattern, which followed the 1966 explosion, and although its results were not necessarily typical of Meniere's disease, they were also not incompatible with the diagnosis; 3. Episodic vertigo developed in 1993, with nausea and vomiting and fullness of the left ear, and that if the VA examiner who had opined that there was no association between Meniere's disease was not aware of the articles demonstrating the possibility of noise induced hearing loss and Meniere's disease, such would have been a "very logical" conclusion; 4. While the causal relationship among noise induced hearing loss, acoustic trauma, and Meniere's disease was discussed in medical literature, the incidence of patients developing Meniere's disease as a result of such causes was "less than 5%" in the articles referenced; 5. Although the literature reported that it may be months or years before the symptoms of Meniere's disease developed, it would be "extremely unlikely" that the symptoms of vertigo would develop 20 years after the onset of the hearing symptoms: 6. Given that the symptoms of vertigo associated with Meniere's disease developed about 20 years after the documented in-service event, the probability of a causal relationship between the service-connected hearing loss from noise exposure and Meniere's disease was "quite low." Dr. Goldenberg's opinion is highly probative in several respects. First, it evidences that he was aware of the appellant's inconsistent statements concerning his medical history concerning his alleged acoustic trauma in service. The physician also identified the date of onset of vertigo in 1993, which is far more consistent with the initial and credible reports of medical history from the claimant rather than the later representations that it began in 1983 or 1984. Dr. Goldenberg is also shown to have considered the other opinions of record, as noted by his observation that the connection among acoustic trauma, hearing loss, and Meniere's disease is noted and accepted. However, the physician's observation that the development of Meniere's disease and its symptoms not occurring for approximately 20 years is highly relevant, as it cogently and comprehensively explains the significance of the medical treatise evidence and the other medical opinions of record. The Board finds Dr. Goldenberg's opinion to thus be the most informed and most directly responsive to the inquiry in this matter. His opinion is founded upon the most accurate history of the disability, and the most balanced in its explanation of the development of the appellant's disorder. Most importantly, Dr. Goldenberg has clarified that while there is certainly a connection among audio trauma, hearing loss and Meniere's disease, the passage of time in the appellant's case between the trauma and the development of the disorder in question renders it unlikely that the disorder is traceable to any incident of service. The Board has also carefully considered the opinions of Dr. Bash. As is noted above, Dr. Bash's first opinion was received in September 2000. Subsequent to the receipt of Dr. Goldenberg's June 2001 opinion, the appellant submitted another letter from Dr. Bash in September 2001. Having examined Dr. Bash's submissions, the Board finds them to be unsupported by record or based upon false premises as to the nature of inservice events and post service medical history. In essence, the opinions are also conclusory. They are accorded no probative value. The Board concludes that Dr. Bash provides no cogent basis for his opinion that the appellant's Meniere's disease is secondary to noise. Although he extracts record references without explanation of their significance, and lists several medical texts and treatises, he provides no explanation for his opinion, other than to repeat approximately four sentences in two of the cited texts. (See, pages 2-3, September 1990 opinion). The citations to the record provided by Dr. Bash disclose that he noted the claimant's allegation of a three-day coma following the incident in service. He also noted the claimant's assertions that vertigo began in about 1983 or 1984. As noted above, the Board finds the claimant is not credible in his evidentiary assertions with regard to events in service and as to his medical history post service, particularly with regard to the onset of vertigo. Dr. Bash's opinions contain no indication that he recognized or attempted to distinguish between the actual history of the disability and the noncredible evidentiary assertions of the claimant. Indeed, Dr. Bash's reports on their face appear to accept as valid the claimant's noncredible evidentiary assertions. Therefore, his opinions are founded upon false premises and thus are not entitled to any probative weight. Further, Dr. Bash's supposition that the laceration found during the appellant's separation physical examination was caused by the in-service incident of aerosol cans exploding has no basis in the record. His theory that this laceration represents the residuals of a fall, and that the fall caused the appellant to have then sustained an injury to the left inner ear complex resulting in Meniere's disease is also purely speculative. Moreover, the opinion that these speculative events are connected to the very remote onset of Meniere's contains the same defect noted above that the physician's opinion also rests upon false premises as to the post-service history. The Board further observes that Dr. Bash has captioned his September 2001 medical opinion as an "Independent Medical Evaluation." Although the Board is uncertain of the meaning of this self-styling of this medical opinion, it is clear that Dr. Bash's opinion is not one generated by the statutory and regulatory provisions that are outlined above. His opinion is that of but one "expert," who presumably has reviewed the medical evidence of record. Nor can it be said that Dr. Bash's opinion was "independent" in the common parlance of the word. The open public website of the National Veterans Organization of America lists Dr. Bash as one who: . . . has been doing Independent Medical Evaluations (IMEs) for disabled veterans since 1996. He is able to evaluate all organ systems and has worked extensively with both Veterans Service Organizations (VSO's) and attorneys who represent veterans. As a disabled veteran he is empathetic to both the medical and administrative needs of his colleagues. . . . Dr. Bash has a 90+% success rate in claims and has helped veterans receive both medical benefits and millions of dollars in retroactive awards. At a minimum, this listing advertises the fact that Dr. Bash views himself not as an independent and impartial reviewer of medical questions, but as a party "empathetic" to claimants and one who publicly promotes his success in obtaining "millions of dollars" of awards. To the extent that Dr. Bash reiterates his first opinion in his September 2001 letter, it is of no probative value for the reasons that are above stated. Moreover, by apparently assuming the roll of cross-examiner of Dr. Goldenberg, (e.g., that the physician "dose [sic] not provide a literature reference for his 5% figure;" does not explain why my opinion . . . is wrong;" does not provide an alternative cause of [the appellant's] Meniere's disease; [because Dr. Goldenberg's statements are "mostly equivocal" the benefit of the doubt should go to [the appellant]), Dr. Bash appears to have moved well beyond his role of expert medical professional, and assumed the role of advocate for the appellant. While such zeal may be explainable in the case of a treating physician, the record demonstrates that Dr. Bash is not an otolaryngologist (as Dr. Goldenberg noted). Moreover, as the Board has explained above, Dr. Goldenberg's opinion is founded on a far more accurate set of factual premises as to events in service and the history of the disability post service. In this case, an accurate command of the correct history is of vastly greater importance than any other factor shown by the record. The Board therefore finds that no further pursuit of medical texts or treatises is warranted because the current record contains evidence that is dispositive and founded precisely upon the facts of this matter. There is no reasonable possibility that a general text of treatise would warrant a different outcome on this record. Likewise, the clear preponderance of the evidence is against the claim and thus the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. ORDER The appeal is denied. Richard B. Frank Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.