Citation Nr: 1308448 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 08-10 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to March 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in March 2012. The Veteran had also perfected an appeal as to the issue of service connection for tinnitus. A March 2008 rating decision granted service connection for tinnitus. Consequently, that issue has been resolved and is not before the Board. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for bilateral 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A right eye disability was not noted when the Veteran was examined for enlistment; however, clear and unmistakable evidence shows that such disability pre-existed his active service. 2. The Veteran's right eye disability did not increase in severity beyond natural progression during his active service; clear and unmistakable evidence shows that it was not aggravated by service. CONCLUSION OF LAW Service connection for a right eye disability is not warranted. 38 U.S.C.A. §§ 1131, 1132, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2006 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ asked specific questions, however, directed at identifying whether there was evidence that would help substantiate the Veteran's claim and specifically sought to identify any pertinent evidence not currently associated with the claims file. In addition, the Veteran volunteered his pertinent treatment history and symptoms prior, during and since service. Accordingly, he is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Whether a pre-existing disorder underwent an increase in severity during service is determined based on evidence of the manifestations of the disorder before, during and after service. 38 C.F.R. § 3.306. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The Veteran contends that service connection is warranted for a right eye disability. He states that he injured his right eye during service when a shell casing hit him in the right eye on a firing range. He contends that he did not report the incident or go to sick call for treatment, but that his vision has not returned since the accident. Service treatment records show that on enlistment examination conducted in January 1961, the Veteran's vision was 20/20 bilaterally and his eyes were normal on clinical evaluation. An April 13, 1961 notation on this examination indicates that there was no change in health since January 1961. On an April 13, 1961 enlistment Report of Medical History, the Veteran noted a history of having worn glasses 2 years prior to that time, for no specific reason. An April 24, 1961 eye clinic report found the Veteran's right eye vision was 7/400, and he was assessed with refractive amblyopia and placed on a profile. A January 1963 ophthalmologic consultation report revealed far vision in the right eye without correction of 7/400. The examiner noted an old choroiditis lesion of the right eye macula. The diagnoses included right eye amblyopia ex anopsia secondary to old choroiditis. An October 1963 report noted the Veteran's complaint of a burning, itching sensation in the right eye, and it was noted he had a history of poor vision, uncorrectable with glasses. On March 1964 separation examination, the Veteran's right eye distant vision was 20/400. The examiner indicated that the Veteran had amblyopia due to strabismus. An October 1961 DA Form 348, Driver Qualification Record, noted the Veteran's visual acuity in the right eye was 20/20. Huntington VA Medical Center (VAMC) treatment records include a November 2002 report that included the Veteran's complaint of almost being blind in the right eye, progressive since military. In an August 2006 letter from W.B.T., O.D., it was noted that the Veteran has been his patient since March 1974. It was further noted that the best corrected right eye vision has been 20/800. It was opined that such was due to amblyopia and a macular scar, and has been stable for over 30 years. On September 2010 VA optometry examination, the Veteran was assessed with macular scarring in the right eye; age-related cataracts; and refractive error with astigmatism. The best-corrected visual acuity at distance is 20/400 in the right eye. The examiner noted that 1961 STR entries where the vision in the right eye was reported as 20/20, but questioned whether acuity was taken in a binocular or monocular fashion. The examiner further noted that in records from 1963 and 1964, the right eye was recorded as having 20/400 vision. The examiner also noted the current macular scar. The examiner ultimately concluded that it is at least as likely as not that the Veteran's macular scarring was caused by an injury sustained in the service, but that because the Veteran admittedly did not report for medical treatment following this injury, there is a degree of uncertainty regarding his opinion. In August 2012, the Board requested a review of the claims file and an opinion by a Veterans Health Administration (VHA) medical expert. In October 2012, a VHA medical expert opinion was provided. After a review of the Veteran's claims file, it was opined by the medical expert that the Veteran had a right eye disability that existed prior to service, i.e., refractive amblyopia or a macular scar ("old choroiditis"), and that such was not worsened beyond normal progression by his right eye injury. It was also opined that the right eye visual acuity of 7/400 noted 11 days after entrance in April 1961 was more likely than not the result of the pre-existing refractive amblyopia. Alternatively, the right eye visual acuity may have resulted from a pre-existing macular scar. Because a funduscopic examination was not performed at that time, the presence of a pre-existing macular scar cannot be excluded. In regards to the choroiditis lesion of the right eye macula found in January 1963, the medical expert opined that it is not as least as likely as not that such arose during service. He stated that it was most likely that the Veteran has a congenital macular scar of the right eye that accounted for his poor vision, and this was initially presumed to be amblyopia. The medical expert also opined that an injury such as being struck in the right eye with a shell casing, that did not require treatment, could be sufficient to cause the macular scar currently shown on examination. However, this would be unusual since the uncorrected visual acuity recorded in April 1961 was 7/400 in the right eye and the uncorrected visual acuity recorded on March 1964 (i.e., 20/400) was not declined from this level. Hence, the medical expert opined that it is highly likely that the macular scar represents an old choroiditis lesion as noted in January 1963, and that this lesion was present prior to service. It was opined that the reported visual acuities of 20/20 obtained in January and October 1961 were obtained with both eyes opened, i.e., binocular, and monocular testing performed in April 1961 and January 1963 demonstrated visual acuity of 7/400. A right eye disability was not noted when the Veteran was examined for service enlistment. Consequently, the presumption of soundness attached. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. However, the presumption of soundness has been rebutted in this case as the record contains clear and unmistakable evidence that a right eye disability pre-existed the Veteran's service and that the pre-existing disability was not aggravated in service. First, his April 1961 Report of Medical History noted he wore glasses 2 years prior to that time, for no specific reason, evidencing decreased visual acuity prior to service. In addition, an April 1961 eye clinic report, 11 days after entry into service, found the Veteran's right eye vision was 7/400, and he was assessed with refractive amblyopia. As noted above, January 1963 ophthalmologic consultation report also found right eye vision was 7/400, and diagnosed right eye amblyopia ex anopsia secondary to old choroiditis. Significantly, October 2012 VHA medical expert opinion found that it was most likely that the Veteran has a congenital macular scar of the right eye that accounted for his poor vision, and was initially presumed to be amblyopia. While the Veteran was noted to have 20/20 vision in January 1961 and October 1961, the October 2012 VHA medical expert found that such was obtained with binocular testing rather than the monocular testing that found visual acuity of 7/400. This evidence clearly and unmistakably establishes that a right eye disability pre-existed the Veteran's active service. Second, there is clear and unmistakable evidence that the right eye disability was not aggravated in service. See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 C.F.R. § 3.306(b). Whether a disability increased in severity is in large measure a medical question. There is no medical evidence of an increase in severity of the Veteran's right eye disability beyond natural progress. The October 2012 VHA medical expert's opinion noted that the Veteran had decreased visual acuity in the right eye of 7/400 in April 1961 and January 1963, and that such was not declined from this level on March 1964 separation examination that found right eye visual acuity of 20/400. In rendering this opinion, the VHA medical expert conceded the Veteran's report of suffering a right eye injury with a shell casing. Therefore, despite the injury in service, the Veteran's right eye disability did not increase in severity beyond natural progress. The October 2012 VHA medical expert reviewed the Veteran's claims file and explained the rationale for his opinion. The Board finds no reason to question the competence of the consulted VHA medical expert, a Chief of Ophthalmology of a VAMC, in attributing the Veteran's decreased visual acuity of the right eye in service to his pre-existing amblyopia/macular scar, and not aggravated by the conceded injury to the right eye by a shell casing. As the October 2012 VHA medical expert's opinion was based on a complete, accurate, and documented factual background, contains a complete description of the right eye disability, and explains the rationale for opinions provided, the Board finds it highly probative and persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board assigns less weight to the opinion of the September 2010 VA examiner. The Board notes this examination was conducted by an optometrist. While an optometrist is a medical professional who specializes in the eyes, optometrists are not medical doctors. Here, the VHA physician who provided the 2012 opinion is the Chief of Ophthalmology, and as a medical doctor specializing in eye disorders, has greater education and training than the optometrist. See Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993) ("The probative value of medical opinion evidence is based on 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."). Moreover, the 2010 VA examiner noted that there was a degree of uncertainty regarding the opinion he provided since the Veteran did not report for treatment following the in-service eye injury. Accordingly, the Board assigns less probative weight to the opinion of the 2010 VA examiner. The Board acknowledges the Veteran's contention that his right eye disability is related to service. Although he is competent to state his symptoms, the Veteran is not shown to possess any specialized experience such that he is qualified to render a medical diagnosis or medical opinion concerning the etiology of any current eye disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Eye disabilities, including decreased visual acuity and macular scarring require medical testing and expertise to diagnose and evaluate. As the Veteran is not shown to be other than a layperson, his opinion as to the etiology of his current eye disability is not competent medical evidence. Id. The most probative medical opinion of record with regards to the relationship of the Veteran's eye disability is the opinion of the October 2012 VHA medical expert. Thus, the opinion rendered in the October 2012 VHA report is entitled to significantly greater weight than the Veteran's lay opinions. In sum, the Board finds that the most probative evidence indicates the Veteran's right eye condition existed prior to service and was not aggravated thereby. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a right eye disability is denied. REMAND Regarding the Veteran's claim for service connection for bilateral hearing loss, after a review of the claims file, the Board finds that additional development is necessary for proper adjudication of the claim. The Veteran alleges that his bilateral hearing loss is related to conceded acoustic trauma during service. Specifically, he alleges that his bilateral hearing loss is related to noise exposure from trucks he drove during service and exposure to artillery. His DD Form 214 reflects he was awarded the Wheel Driver Qualification Badge. In addition, the Veteran has established service connection for tinnitus. The Veteran was afforded VA examinations to determine the nature and etiology of his bilateral hearing loss in November 2007 and September 2010. The examinations show a hearing loss disability for VA compensation purposes. On November 2007 VA examination, the Veteran reported his military noise exposure included being a crew chief of an artillery unit and being exposed to almost daily artillery fire. No nexus opinion was provided as to the relationship between the Veteran's bilateral hearing loss and service. On September 2010 VA examination, after a review of the Veteran's claims file, it was opined that the Veteran's current bilateral hearing loss was not caused by or the result of his military noise exposure. The examiner noted that threshold testing on separation revealed normal hearing bilaterally. The examiner stated that if the Veteran's hearing was normal when he separated from service, his current hearing loss is not the result of military noise exposure. However, the Board notes that in regard to a claim of entitlement to service connection for hearing loss, the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In addition, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Notably, at the March 2012 video conference hearing, the Veteran testified that during service a tank artillery shell exploded too soon while he was outside of it without hearing protection, and that he lost his hearing for about one day. The Board notes that the examiner did not explain why normal findings at separation mean that current hearing loss is not related to service. Therefore, the Board finds that an additional opinion is necessary. Finally, the Board notes that the most recent VA treatment records are current only as of October 2010 and more recent records are not available for the Board's review via Virtual VA. If there are pertinent, outstanding VA medical records pertaining to the issue on remaining on appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have recently treated him for hearing loss. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since October 2010 from the VA Medical Center in Huntington, West Virginia. 2. After completion of the foregoing, send the claims file to a VA audiologist to obtain an opinion regarding the possible relationship between the Veteran's current hearing loss disability and service. If a new examination is deemed necessary to respond to the questions below, one should be scheduled. Following review of the claims file, the audiologist should provide an opinion as to whether the Veteran's current bilateral hearing loss is at least as likely as not (a 50 percent probability or greater) related to his active service, to include conceded noise exposure therein, and the Veteran's report of subjectively experiencing hearing loss at times during service. If the examiner concludes that the current hearing loss is not related to military service, the examiner should clarify the September 2010 VA contract examiner's opinion and provide an explanation as to why the findings of normal hearing at separation from service suggest that current hearing loss is not related to noise exposure during service. A rationale for the opinion reached should be provided. 3. The RO/AMC should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs