Citation Nr: 1327003 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-25 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an eye disability, claimed as refractive error and presbyopia secondary to diabetes mellitus. 2. Entitlement to service connection for sleep apnea due to diabetes mellitus. 3. Entitlement to service connection for bronchitis. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service from August 1965 to August 1968. These matters come before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's virtual VA file has been reviewed. The issue of service connection for sleep apnea, to include as secondary to diabetes mellitus 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. There are no findings of diabetic retinopathy related to service. 2. Refractive error of the eye and presbyopia are not diseases or injuries for VA disability compensation purposes. 3. There are no findings of bronchitis related to service. 4. Bilateral hearing loss did not first manifest in service, nor is it related to any injury or disease in service. 5. Tinnitus did not first manifest in service, nor is it related to any injury or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability (diabetic retinopathy, refractive error, and presbyopia) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for bronchitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A January 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the RO was unable to locate the Veteran's service medical records directly, fortunately the Veteran himself was able to obtain a complete copy of his medical records from the National Personnel Records Center (NPRC) which he has submitted and is part of the claims file. The Veteran's service treatment records and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in November 2007; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion as to the Veteran's current disabilities. The Veteran was not afforded a VA examination for his claim for service connection for bronchitis but none is required as there is no evidence of a current disability, complaints of a disability or even subjective reports of symptoms of a disability related to bronchitis at any time post service. Without a current disability, or complaints of symptoms of a disability, an examination is futile as there is no disability which "may be associated" with active service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection can be granted on a secondary basis. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Eye disability (diabetic retinopathy, refractive error and presbyopia) The Veteran contends that he has diabetic retinopathy or other vision disorder secondary to diabetes mellitus. While the evidence reveals refractive error and presbyopia, they do not show retinopathy or any other eye condition secondary to diabetes mellitus. In November 2007 a VA examination was conducted. The examiner noted that the Veteran had a history of being diabetic for four years which is controlled by diet. A funduscopic examination of the eye was conducted which revealed no diabetic retinopathy. The examiner did diagnose refractive error and presbyopia. Private treatment records diagnosed presbyopia (near sighted vision). There is no medical evidence of diabetic retinopathy at any point. The Veteran contends that he has retinopathy secondary to his diabetes. The Veteran is competent to report symptoms that he experiences such as blurry vision and difficulty seeing, as he could experience it through his five senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is not competent to diagnose a medical disorder of diabetic retinopathy because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). His opinion that he has diabetic retinopathy is outweighed by the competent medical opinion of the physician who examined him, looked into his eye, and determined that he did not have diabetic retinopathy. The Veteran does have a diagnosis of refractive error and presbyopia, as noted at the VA examination and in private treatment records. However, congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the 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 presbyopia, 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 regulations specifically prohibit service connection for refractive error unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Although the medical evidence demonstrates that the Veteran currently has refractive error and presbyopia such disorders are not to be service connected without evidence of a superimposed disease or injury. There is no evidence of any superimposed disease or injury to the eye during service. Absent evidence of diagnosed diabetic retinopathy, the Veteran's claim of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the future, if the Veteran does develop diabetic retinopathy he is welcomed to reapply for service connection. The weight of the evidence is against the claim; there is no doubt to be resolved; service connection for an eye disability (diabetic retinopathy, refractive error and presbyopia) associated with diabetes mellitus is not warranted. Bronchitis The Veteran contends that he should be service connected for bronchitis. Service treatment records show treatment for acute bronchitis in July 1966. In April 1968 the Veteran was treated for a cold with a productive cough. There is no discharge examination, however there is no indication, nor has the Veteran ever contended that he had bronchitis upon exit from service. Post service there is no evidence whatsoever of bronchitis, to include private or VA treatment for bronchitis, or even the Veteran's lay assertions that he has experienced symptoms of bronchitis at any time post service, which he is competent to do. Private treatment records from April 2006 noted the Veteran's past medical history, which did not include bronchitis or any lung condition. The Veteran reported a history of smoking two packs per day for the last 40 years and that he is currently smoking. At the November 2007 VA examination for sleep apnea the Veteran reported a history of nonproductive cough, shortness of breath on moderate exertion and reported using an inhaler for Chronic Obstructive Pulmonary Disease (COPD) (emphysema). A chest x-ray was taken which found no acute lung disease. There is no evidence of a current disability- chronic bronchitis. The Veteran has not reported experiencing bronchitis to any treatment providers or examiners, despite receiving treatment for sleep apnea. The Veteran is competent to report a history of coughing, however he is not competent to opine that his cough is bronchitis, nor has he alleged as such, and in fact he reported having a history of COPD. Absent evidence of an actual diagnosed disability related to acute bronchitis in July 1966, the Veteran's claim of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The weight of the evidence is against the claim; there is no doubt to be resolved; service connection for bronchitis is not warranted. Hearing loss and tinnitus For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 August 1965 entry examination included audiological results. Prior to October 31, 1967, service department audiometric tests were in "ASA" units. The figures in parentheses below represent the conversion to the current "ISO" units, which is the standard used in 38 C.F.R. § 3.385. On the authorized audiological evaluation in August 1965 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15(30) 15(25) 15(25) -- 15(20) LEFT 15(30) 15(25) 15(25) -- 15(20) Although the Veteran's hearing examination results upon entry were not normal, per Hensley v. Brown, 5 vet. App. 155, 157(1993) (finding the threshold for normal hearing is from 0 to 20 decibels. Citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)). The Veteran did not have a hearing loss disability per 38 C.F.R. § 3.385 and therefore he is presumed to be sound upon entry to service. Service treatment records do not include a discharge examination upon exit from service. Therefore there are no records to indicate that there was a hearing loss or to suggest that there was a threshold shift in hearing acuity during service. A November 2007 audiological evaluation, pure tone thresholds, in decibels, was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 35 50 70 LEFT 20 15 25 60 65 The speech recognition scores were 70 percent in both the left and right ears. The Veteran has current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. At the November 2007 VA examination the examiner noted that prior to service the Veteran reported working on a farm with tractors, during service he was exposed to excessive noise of artillery for three years and post service he was a coal miner for 26 years. At the examination the Veteran reported having difficulty hearing only as recently as six or seven years prior (in 2000). The Veteran also reported noticing tinnitus 10 to 15 years prior (in 1992) which he described as a bilateral constant cricket sound. The November 2007 examiner reviewed the record and found that there were no service treatment records regarding hearing loss or tinnitus. She found that as the Veteran reported that he began to notice hearing loss 6 to 7 years ago and tinnitus 10 to 15 years ago, due to the lack of information, any opinion regarding either hearing loss or tinnitus would be mere speculation therefore no opinion is stated. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id (citing Daves v. Nicholson, 21 vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. Here the November 2007 VA audiologist explained that in service there was no evidence of hearing loss and that the Veteran did not report experiencing hearing loss or difficulty during service. She also noted that the Veteran reported that his hearing difficulty was unnoticeable until seven years prior to the examination, and that he was discharged in 1968, 39 years ago. She also noted that the Veteran reported his tinnitus began 15 years prior. The examiner has explained that in consideration of all evidence of record, which includes the Veteran's competent lay statements as to when he first noticed hearing loss, there simply was not enough information on which to base an opinion. A February 2006 private note diagnosed tinnitus and found that "no clear etiology for tinnitus is seen." A February 2006 audiogram also found hearing loss for VA purposes under 38 C.F.R. § 3.385. Hearing loss is included on the list of "chronic disease" under 38 C.F.R. § 3.309(a) and service connection of a chronic disease can be established by continuity of symptomatology under 38 C.F.R. § 3.309(c). The Veteran would be competent to report experiencing deceased hearing ability since service, as it is something he could experience through his five senses. See, Layno v. Brown, 6 Vet. App. 465 (1994). His statements alone would be evidence of continuity of symptomatology however these are not the facts of this case. Here the Veteran himself reported to the audiologist that he first noticed a decrease in hearing acuity seven years prior, and first noticed ringing in his ears 15 years prior. Based upon the Veteran's competent credible statements to the audiologist, there is no evidence of continuity of symptomatology since service. In sum, the Veteran's hearing was abnormal upon entry to service. In service he was exposed to artillery for three years. The Veteran first noticed a decrease in hearing acuity in roughly 2000, over 30 years after service. The first documentation of hearing loss for VA purposes was 38 years post service. There is no evidence that the Veteran's current hearing loss or tinnitus began in service, and in fact he affirmatively reported that he did not have noticeable hearing loss or tinnitus for decades after service. The weight of the evidence is against the claim; there is no doubt to be resolved; service connection for bilateral hearing loss and tinnitus is not warranted. ORDER Service connection for an eye disability (diabetic retinopathy, refractive error and presbyopia) secondary to diabetes mellitus is denied. Service connection for bronchitis is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND In November 2007 a VA examination for sleep apnea was conducted. The examiner opined that the Veteran's sleep apnea was less likely as not (less than 50/50 probability) caused by or a result of diabetes mellitus and provided the rationale that "[s]leep apnea is not commonly caused by diabetes but as a result of the conditions as noted. See risk factors." And then proceeded to list general risk factors identifying obesity and craniofacial or upper airway soft tissue abnormalities as definite risk factors and heredity, smoking and nasal congestion as potential risk factors. The examiner did not find that these were risk factors specific to the Veteran, but that they were risk factors in general. Additionally the examiner did not address the question of whether the Veteran's diabetes mellitus aggravated his sleep apnea. As such the medical opinion is inadequate and further clarification is required. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), the Court found that a VA examiner's statement that deceased veteran's alcoholism was "related to" factors other than his service-connected posttraumatic stress disorder was not sufficient to permit the Board to conclude that the Veteran's service connected post-traumatic stress disorder did not aggravate his alcoholism. And the Board erred in relying on an inadequate medical opinion to conclude as such. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (considering the possibility that language in a medical opinion could be considered to address aggravation without specifically using that word, but rejecting the argument on the facts of that case). Accordingly, this matter is REMANDED for the following action: 1. Send the claims file for an addendum opinion from a competent medical professional who can provide an opinion on the etiology of sleep apnea. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the medical professional in conjunction with the addendum opinion. If the medical professional does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the medical professional for review. If deemed necessary, an examination may be scheduled. The medical professional is asked to answer the following: a) Identify this particular Veteran's risk factors for sleep apnea; b) Whether it is at least as likely as not that the Veteran's sleep apnea was caused by diabetes mellitus; c) Whether it is at least as likely as not that the Veteran's sleep apnea was aggravated by diabetes mellitus 2. If the benefit sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise 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 is 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs