Citation Nr: 0813716 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-28 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for refractive error. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from July 1996 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). At her January 2007 hearing before a Decision Review Officer at the RO, the veteran appears to raise a claim for service connection for tinnitus. As this issue has not been developed for appellate consideration, the Board refers this matter to the RO for appropriate consideration. This case was also developed on the matter of increased ratings for left knee and headache disability. The veteran filed a notice of disagreement following an August 2005 rating action and was issued a statement of the case and supplemental statement of the case. However, she did not file a timely substantive appeal and these matters are not currently before the Board. See 38 C.F.R. § 200 (2007). FINDINGS OF FACT 1. The veteran does not have chronic bilateral hearing loss related to service. 2. The veteran's defective vision is due to refractive error, which is not a disease or injury for which VA compensation benefits may be awarded. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 4.85 (2007). 2. An acquired disability exhibited by refractive error was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 4.9 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in May 2004 and July 2004, , the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in her possession that pertained to her claims. In March 2006, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with her claims. Thus, the duties to notify and assist have been met. Analysis When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Bilateral Hearing Loss The veteran essentially contends that she was exposed to acoustic trauma in service while performing her duties as a vehicle operator refueling other vehicles. Sensorineural hearing loss may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, this presumption does not apply as discussed below. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). The veteran does not a hearing loss for VA compensation purposes. On VA audiology examination in June 2005, the following pure tone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 10 LEFT 15 15 20 25 25 Word recognition was 96 percent in the right ear and 100 percent in the left ear. The diagnosis was hearing within normal limits, bilaterally. According to the June 2005 VA examiner's findings and VA rating regulations, the veteran does not have hearing loss. Congress has specifically limited entitlement to service- connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwwinski, 3 Vet. App. 223, 225 (1992). Even taking into consideration service medical records in which the veteran complained of hearing loss and a report showing that she was routinely exposed to hazardous noise, the Board notes that her service audiology reports were negative for hearing loss. Nevertheless, without current evidence of hearing loss for VA rating purposes, service connection is not warranted. In adjudicating this claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to her observations of her disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, she is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that she currently has hearing loss related to service) because she does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Refractive Error The veteran asserts that she developed blurred vision during the last nine months to a year before discharge from service. She continues to experience pain in her eyes when exposed to bright lights or sunlight. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. VA afforded the veteran an eye examination in June 2005 which noted that the veteran's best corrected vision was 20/20. Minimal refractive error was noted. External examination showed mild epiphera, motility was negative, slit-lamp was negative, and ophthalmoscopic was negative. The impression was mild epiphera and asthenopia. The Board finds that service connection for refractive error is not warranted as it is not a disease or injury within the meaning of applicable legislation, as discussed above. As for other the epiphera (chronic tearing) and asthenopia (eye strain), these are symptoms and not disabilities; it is not shown that an acquired eye disability had its onset in service. There is no suggestion in the record that a chronic, acquired eye disability was present in service or is otherwise related to the veteran's military service. Accordingly, service connection for refractive error is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for refractive error is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs