Citation Nr: 1300643 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-42 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability, claimed as back pain. 2. Entitlement to service connection for a right foot disability, claimed as foot pain. 3. Entitlement to service connection for a left foot disability, claimed as foot pain. 4. Entitlement to service connection for a vision disability, claimed as blurry vision. 5. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied entitlement to service connection for the above claimed disabilities and granted service connection for bilateral hearing loss, with a noncompensable rating assigned, effective July 14, 2008. In April 2011, the Board remanded the claim so that a hearing could be provided. In December 2011, the Veteran provided testimony at a hearing before the undersigned at the RO. A transcript is of record. In April 2012, the Board dismissed claims for service connection for hypertension and anxiety after they were withdrawn by the Veteran. The remaining issues were remanded for further development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of entitlement to an initial compensable evaluation for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's current low back disability is not the result of a disease or injury in active service. 2. The Veteran's current right and left foot disability, tinea pedis, is not the result of a disease or injury in active service. 3. The Veteran's current eye disability, including conditions that could cause blurred vision, is not the result of a disease or injury in active service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A right foot disability, claimed as foot pain, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. 3. A left foot disability, claimed as foot pain, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. 4. A vision disability, claimed as blurry vision, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in August 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. The Veteran indicated in his claim for VA benefits that he received unspecified treatment for the claimed disabilities at Army clinics and hospitals beginning in 1975. The records received do not show such treatment. Further efforts to identify Army treatment records, would not be reasonably likely to substantiate the claim, because the Veteran subsequently testified that he received no treatment for his foot or eye problems in service, and the record of reported treatment for a back complaint is contained in the available records. All VA treatment records identified by the Veteran have been obtained. The Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. He was afforded appropriate VA examinations for his back and feet, and relevant opinions have been obtained from the examiners after a review of the claims folder. The Veteran has not been provided a VA examination of his claim for blurry vision, but such an examination is unnecessary. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In this instance, the Veteran has testified that he current has blurry visions. He testified that during service, while working as a tank mechanic, a battery exploded and splashed acid in his eyes. He has not clearly reported any continuity of symptomatology and reported that he received no treatment in service or in the years immediately after service. In short, he has not reported a continuity of symptoms and there is no medical opinion suggesting a link between the in-service accident and the current blurry vision. The Veteran's opinion that the in-service accident caused blurry vision years after service is insufficient to trigger VA's duty to provide an examination. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while evidence that a condition may be related to service need not be competent, a veteran's assertion that one condition caused another was insufficient to trigger VA's duty to provide an examination). The initial remand in this case was to afford the Veteran a requested hearing. The remand was complied with when the RO afforded the Veteran the hearing before the undersigned. The second VA examination was to obtain identified records of treatment at VA facilities in Houston, Texas and at the St. Joseph Hospital or Regional Health Center in Bryan, Texas. The AMC obtained the VA treatment records. In April 2012, it asked the Veteran to complete authorizations to obtain records of the treatment at St. Joseph. There is no indication in the record that the Veteran returned the authorizations. VA has no duty to seek records that are not adequately identified. 38 U.S.C.A. § 5103A(c)(3). VA does not have a duty to seek records, if necessary authorization is not provided. 38 C.F.R. § 3.159(c)(1)(ii). The AMC substantially complied with the remand instruction with regard to obtaining additional treatment records. The remand also sought to provide the Veteran with examinations in connection with the claims for service connection for back and foot disabilities. The August 2012, examinations substantially complied with the remand instructions. The examiner was instructed to take into account the Veteran's reports. The examiners failed to fully do so. This failure is not prejudicial in this case, because the Board has found the Veteran's pertinent reports to lack credibility. Cf. Stegall v. West, 11 Vet. App. 268 (1998) The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified. There was a discussion of possible evidence that could substantiate the claims. Questioning at the hearing resulted in the remand for examinations and efforts to obtain additional records. The Bryant requirements were thereby complied with. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The record shows that the Veteran has a current diagnosis of arthritis of the low back. If degenerative arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Low Back The Veteran contends that he has developed a chronic low back disability as a result of active service. He notes that he served as a tank mechanic during service, and that this required lots of heaving lifting with his back. The Veteran further notes that he was treated for low back pain on one occasion during service. He testified that he has had continuous back problems since 1976, when he received the in-service treatment. The Veteran's service treatment records confirm that he was treated in September 1976 after he presented with a history of back pain in the left side. He had been hit by a VTR (Vehicle, Track, Recovery) the previous day. On examination, the Veteran had full range of motion. There was pain on movement but no radiation. The assessment was post contusion versus muscle spasm. The remainder of the service treatment records is entirely negative for complaints, treatment, or diagnoses of a back disability. A Report of Medical Examination dated August 1977 found that the Veteran's spine was normal. The spine was also found to be normal on the Veteran's July 1979 discharge examination. The Veteran answered "no" to a history of "Recurrent back pain" on a Report of Medical History obtained at that time. The post service medical records are negative for any reports or treatment for a back disability. The Veteran testified that he has experienced back pain ever since the 1976 incident, which continued after treatment. He states that he sought treatment for his back complaints from a private facility about four or five years after discharge. However, in spite of requests from VA, the Veteran has not submitted these records or provided VA with permission to obtain the records on his behalf. The Veteran was afforded a VA examination for his back disability in August 2012. The claims folder was reviewed by the examiner. The Veteran's September 1976 treatment in service was noted. The Veteran told the examiner that he had never been to a doctor for his back before. He admitted to occasional muscle spasms which he treated with over the counter medications and heat, which relieved the symptoms. The pain would be initiated when he was working on a car or with the family owned dry cleaning business. Following examination, arthritis of the spine was documented on X-ray study. The examiner opined that the Veteran's current disability was less likely than not incurred in or caused by the claimed in-service injury. The rationale for this opinion was that he had been seen on only a single occasion in service in September 1976, and had not been seen again for his back until recent visits to the Houston VA. The X-ray images of the arthritic areas of the spine were consistent with his age. The examiner concluded that the findings were essentially normal with the exception of muscle spasms on some ranges of motion. The August 2012 VA examination confirms that the Veteran has a current disability of arthritic changes of the spine with muscle spasm, which satisfies the requirement for a current disability. Furthermore, the service treatment records confirm that the Veteran was seen for back pain and muscle spasm on one occasion in service, which together with his testimony, satisfies the requirement for evidence of an injury or disability during service. However, the evidence must still show a relationship between the injury in service and the Veteran's current disability before service connection can be established. This has not been demonstrated. The Veteran's current diagnosis includes arthritis, which is confirmed by X-ray study. However, there is no diagnosis of arthritis either during service or until the August 2012 VA examination conducted 33 years after discharge from service. Therefore, entitlement to service connection on a presumptive basis is not demonstrated. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The evidence does not support a finding of continuity of symptomatology between the Veteran's in-service injury and his current disability. Instead, the evidence indicates that this was an acute injury that did not result in any chronic disability. The Board bases this conclusion on the additional service treatment records which not only show a normal spine on two subsequent examinations, but also show that the Veteran denied having a history of recurrent back pain at the time of his July 1979 discharge examination. This is inconsistent with the Veteran's testimony of continuous pain since the September 1976 injury. The Board finds that the Veteran's contemporaneous statement is likely to be more accurate than testimony presented more than 32 years later, and must conclude that this portion of his testimony is not credible. While the Veteran also testified that he sought treatment for back pain about four or five years following discharge, he gave a different history to the August 2012 examiner when he said he had never had previous treatment for the back. This inconsistency also damages the credibility of the earlier testimony. In the absence of either credible testimony or medical records to demonstrate continuity of symptomatology, a relationship between the Veteran's in-service injury and his current complaints is not demonstrated. Furthermore, the August 2012 medical opinion was that the Veteran's current back disability was less likely than not related to service. While the examiner based this opinion in part on the absence of treatment for the back since service, the opinion was also supported by the findings that the arthritic changes were consistent with the Veteran's age, and that examination findings were essentially normal except for muscle spasms. This is an accurate history, if the Veteran's reports of continuity are discounted. Inasmuch as these reports were not found to be credible, it was appropriate for the examiner to discount them. There is no other competent medical opinion that contradicts the finding of the August 2012 opinion. While the Board respects the Veteran's sincere belief that his current back complaints are related to service, these are the type of symptoms that can be related back to the in-service injury only by a qualified medical professional, and the Veteran has not demonstrated the requisite medical training to competently express such an opinion. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The evidence is against entitlement to service connection for a low back disability. Right and Left Foot Disabilities The Veteran contends that he developed a skin disability of the feet during service, which can still cause pain and cracking of the skin. Although his initial claims were for pain of the feet, his December 2011 testimony clarified that this was a reference to a painful skin condition. The Veteran's VA treatment records include a June 2010 diagnosis of tinea pedis. While it is uncertain whether or not this is a chronic disability, the Board will treat it as such for the purposes of this discussion. However, the Board finds that entitlement to service connection for disabilities of the feet is not warranted. There is no medical evidence of this disability in service or until many years after discharge from service, and no competent medical evidence to relate any current findings to active service. The service treatment records are positive for tinea crurea. However, these records show that this was a skin problem in area of the groin, and not the feet. They are negative for any complaints, treatment, or diagnoses of a disability of the feet, to include the skin of the feet. The August 1977 Report of Medical Examination shows that both the Veteran's feet and his skin were normal. The July 1979 separation examination also shows that the feet and skin were normal. The Veteran answered "no" to a history of both skin diseases and foot trouble on the Report of Medical History he completed at that time. The post service medical records are negative for treatment or reference to a foot disability, to include the skin of the feet. The initial reference to a skin disability of the feet is the June 2010 VA treatment record. In December 2011, the Veteran testified that he had developed a skin disability of the feet during service. He stated that the skin started to crack and peel while he was stationed in Korea, and that it had continued to do so since that time. The Veteran denied having sought medical treatment for these symptoms, but said that he would self treat with over the counter products. See Transcript. This testimony is contrary to information provided in his July 2008, claim for VA benefits. In that application, he indicated that he had been treated for all of his claimed conditions at Army clinics and hospitals. At the August 2012 VA examination, the claims folder was reviewed and the examiner noted that the Veteran had been seen for tinea crurea in service. The service treatment records described this as a heat rash in the groin. However, the Veteran denied having had "jock itch" but instead reported "stuff on his feet" that he treated with over the counter products. This "stuff" would go away but return. At the conclusion, the examiner opined that it was less likely than not that any current disability of the feet was incurred due to active service. The rationale for this opinion was that there was no medical evidence of any skin condition of the feet while in service, and no medical treatment for a current skin condition of the feet. The evidence does not show that the Veteran developed a chronic skin disability of the feet during service. The medical records are completely negative for any disability of the feet, including a skin disability. The Veteran testified that he developed a skin disability of his feet during service, but his credibility is undermined not only by the normal findings on physical examination in service, but by his contemporaneous denials of such a disability at service discharge, and his recent contradictory reports as to whether there was in-service treatment. Similarly, even if there was evidence of a skin disability of the feet in service, the evidence does not demonstrate that it is related to any current disability. The Veteran's credibility regarding continuity of symptomatology is again undermined by his denial of any pertinent disability at discharge, and there is no post service medical evidence that would demonstrate continuity of symptomatology. Finally, the only competent medical opinion to weigh in on the matter has found that there is no relationship between the Veteran's complaints in service and his current symptoms. The Board notes that the Veteran has expressed a different opinion, and while he is competent to report his symptoms over the years, he does not have the medical training that would make him competent to state that they constitute a chronic disease that began in service as opposed to a series of acute rashes that resolved with over the counter treatment. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The only competent medical opinion in the matter has found that the current findings are unrelated to active service. Therefore, as the evidence does not show that the Veteran had a foot disability in service or that there is a relationship between any complaint in service and the current findings, entitlement to service connection is not warranted. Vision Disability The Veteran testified that he believes he now has blurry vision as a result of an incident in active service when his eyes were splashed with battery acid. The Veteran stated that he did not receive any medical treatment after this incident, but he instead flushed his eyes with water immediately afterwards and on several additional occasions over the following days. This is a somewhat different history than was reported on his claim for VA benefits, wherein he indicated that he had received treatment at Army clinics and a hospital for the claimed conditions. The Veteran's testimony as to having an in-service eye injury is competent and credible. However, there is evidence whatsoever that this injury resulted in a chronic eye disability. As previously noted, the Veteran's July 1979 discharge examination found his eyes to be normal. His vision reported to be 20/20. The Veteran answered "no" to a history of eye trouble on the Report of Medical History obtained at that time. There is no evidence of any post service treatment for the eyes, and as already noted the Veteran's only testimony as to continuity was that he believed his post service vision was normal until he received glasses at some point after service and realized it could be improved. He further testified that his vision was not blurry when wearing glasses. Finally, VA treatment records dating May 2010 report blurred vision for "several years." However, the Veteran denied having a history of an injury. After an examination, the only current diagnoses were presbyopia, early cataracts, and macular mottling. Refractive error of the eye is not considered to be a disease or injury within the meaning of applicable legislation, and is not eligible for service connection. 38 C.F.R. § 3.303(c). The examiner did not indicate that any of these disabilities were out of the ordinary considering the Veteran's age or his denial of prior injury. It would require medical expertise to say that a current vision impairment was the result of a remote injury in service. This is not a situation in which he is reporting a medical condition, a contemporaneous medical diagnosis, or describing symptoms at the time supporting a later diagnosis by a medical profession. Cf. Jandreau. His report; therefore, does not constitute competent medical evidence that the current disability was caused by the in-service accident. Given that there is no continuity of symptomatology following the injury in service and discharge, and no other competent and credible evidence linking a current disability to the acid splash or other disease or injury in service; the weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability, claimed as back pain, is denied. Entitlement to service connection for a right foot disability, claimed as foot pain, is denied. Entitlement to service connection for a left foot disability, claimed as foot pain, is denied. Entitlement to service connection for a vision disability, claimed as blurry vision, is denied. REMAND At the December 2011 hearing, the Veteran testified that his hearing loss had significantly worsened since his last VA examination in March 2010. He reported increased difficulty hearing the television and conversation. He is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The April 2012 Board remand included an instruction that the Veteran be scheduled for a new examination for his hearing disability. Unfortunately, there is no indication in either the claims folder or the electronic record that he was afforded a new examination of his hearing loss. Instead, a second copy of the March 2010 VA hearing examination was placed in the claims folder with the August 2012 examination reports. While the November 2012 supplemental statement of the case noted that the Veteran's claim had been remanded for an additional examination, the date of the new examination is not provided, and the values cited are those from the March 2010 examination. The Board is obligated to ensure that its remand instructions are complied with. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA audiological examination to determine the severity of his service-connected bilateral hearing loss. The examiner should review the claims file in conjunction with the examination. The examination should encompass pure tone threshold testing (in decibels) and Maryland CNC speech recognition testing. The examiner must also comment on the effects of the Veteran's hearing loss disability on his everyday life. 2. If any benefit sought on appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs