Citation Nr: 1322942 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-05 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for glaucoma. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction rests with the RO in Atlanta, Georgia, from which the appeal was certified. FINDINGS OF FACT 1. The Veteran does not have hearing loss disability for VA purposes. 2. The preponderance of the evidence shows that the Veteran's glaucoma was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for glaucoma have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). September 2009 and November 2009 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In 2010, the Veteran contacted the National Personnel Records Center (NPRC) and asked that they provide copies of his treatment records from the Camp Stanley Hospital in Korea, where he alleges that he was treated for an eye condition. However, the NPRC notified him in September 2010 that a search for those records did not reveal any relevant documents. Otherwise, the Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The December 2009 VA audiology examination was adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007). It considered the Veteran's history of noise exposure, both in-service and post-service, as well as his situations of greatest hearing difficulty. An audiogram was conducted and word recognition percentage testing completed; the examiner provided a medical opinion based on the clinical findings of record. Significantly, the Board observes that the Veteran does not report that his hearing loss has worsened since that time, and thus a remand is not required solely due to the passage of time since the December 2009 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 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). 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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Hearing Loss Service connection for sensorineural hearing loss may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or 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. The Veteran's service personnel records reflect that he served in an artillery unit. Accordingly, in-service noise exposure is conceded. However, the Veteran's service treatment records do not reflect evidence of bilateral hearing loss in service or at service separation. The Veteran's July 1984 service entrance examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 15 10 10 LEFT 15 5 5 0 0 A May 1985 reference audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 5 5 5 LEFT 5 5 10 5 20 The record reflects that the Veteran signed a December 1987 statement indicating that he did not desire a service separation examination, and the record does not show that one was conducted, to include an audiogram. There is also no post-service evidence of record, dated within one year of the Veteran's service separation, showing bilateral hearing loss that manifested to a compensable degree. Specifically, hearing acuity at the September 1988 examination during the Veteran's National Guard service was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 15 20 LEFT 15 20 20 15 15 Although service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service, see Hensley v. Brown, 5 Vet. App. 155 (1993), the remaining post-service medical evidence does not contain any private or VA evidence establishing a level of bilateral hearing loss meeting the VA criteria for a disability under 38 C.F.R. § 3.385. At the December 2009 VA examination, speech audiometry revealed speech recognition ability of 96 percent bilaterally; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 15 20 20 10 15 The remaining medical evidence of record includes a July 2003 private record in which the Veteran endorses hearing loss; however, no audiometric testing was completed, and it cannot be determined from the Veteran's self-report of hearing loss that this indicates a degree of hearing loss constituting a disability for VA purposes. Further, in determining whether there is a disability for VA purposes, the pertinent regulations only consider hearing acuity at five audiometric thresholds, and those do not include the thresholds of 6000 Hertz or 8000 Hertz; thus, the finding of mild hearing loss at 6000 Hertz bilaterally at the December 2009 VA examination has no bearing on whether the Veteran meets the criteria for service connection. See 38 C.F.R. § 3.385. To the extent that the Veteran argues that service connection for hearing loss should be granted because in-service noise exposure was conceded and service connection for tinnitus was previously found to be warranted, the Board notes that it does not dispute the concession of noise exposure made by the RO, or the premise that the Veteran has some level decreased hearing acuity as documented in the December 2009 VA examination report. However, VA regulations require that a specific minimum severity of hearing loss exist before order for benefits to be awarded. The Veteran's current hearing acuity level, documented in the record, is not sufficient to satisfy the relevant criteria. Ultimately, the evidence does not show bilateral hearing loss in service or within one year of separation from service, or evidence of currently diagnosed bilateral hearing loss. Without competent evidence of a diagnosed bilateral hearing loss disability for VA purposes, service connection for bilateral hearing loss is not warranted. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Glaucoma Review of the Veteran's active duty service and National Guard service treatment records do not reflect any reports of vision impairment or a diagnosed vision disability or condition. As noted above, the Veteran declined to have an examination prior to his January 1988 service separation from active duty. Although a November 1987 record notes that the Veteran ran into the bleachers while playing basketball, resulting in a laceration of the left temple region, the examining physician noted that no abnormalities were found on examination. After service, private treatment records from the Westside Urban Healthcare and Curtis V. Cooper Primary Care do not reflect treatment for glaucoma; a July 2003 record notes the Veteran's denial of visual impairment. March 2006, October 2006, June 2007, August 2008, and July 2009 VA optometry consultation records noted that the Veteran reported a family history of glaucoma; after physical examination, the diagnosis was glaucoma suspect due to cup/disc ratios and heredity, in the absence of diabetic retinopathy. In his November 2010 notice of disagreement, a November 2010 statement, and his March 2011 VA Form 9, the Veteran asserted that his glaucoma was not hereditary because it manifested in his 40s, not his 80s like his mother. Rather, he argued in his October 2009 statement, the glaucoma was the result of an in-service left eye injury after which he underwent surgery and was without sight for a month. However, the evidence does not establish that the Veteran's glaucoma is related to his military service. The single service treatment record documenting the left temple injury does not indicate an injury to the eye itself. Further, that the Veteran did not experience visual impairment until 2006 weighs against his claim that his glaucoma is related to his military service, especially in light of the July 2003 private treatment record in which he denied visual impairment. See, c.f., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the Veteran's treating VA optometrists repeatedly indicated that his glaucoma was hereditary, especially in light of the absence of diabetic retinopathy in a patient with diabetes. The Veteran's statements have been considered, but are not probative medical opinions because as a layperson, the Veteran is simply not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007). The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for glaucoma is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs