Citation Nr: 1333671 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-20 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for visual impairment, claimed as a residual of an in-service head injury. 5. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The appellant served in the United States Army from June 1977 to September 1978, under other than honorable conditions. The appellant served in the United States Navy on active duty from September 24, 1981 to September 9, 1985. The appellant immediately re-enlisted for a third period of active duty in the Navy on September 10, 1985, but was discharged under other than honorable conditions in May 1988, due to a period of persistent misconduct. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that decision, the RO denied service connection for hearing loss, tinnitus, headaches, impaired vision and posttraumatic cervical strain. In April 2005, the appellant testified at a personal hearing before a Hearing Officer at the RO. A transcript of this testimony is associated with the claims file. In September 2008, the appellant testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of this testimony is also associated with the claims file. The case was remanded back to the RO for additional development of the record in May 2010 and July 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's current headaches and cervical spine disorder are not related to any disease, injury or other event during his period of service from September 1981 to September 1985, including any in-service head injury that occurred therein. 2. The Veteran does not have a diagnosed eye disability other than a correctable refractive error. 3. The current hearing loss disability is not related to any disease, injury or other event during his period of service from September 1981 to September 1985. CONCLUSIONS OF LAW 1. A hearing loss disability was not incurred in the Veteran's honorable period of service from September 1981 to September 1985. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. A headache disability was not incurred in the Veteran's honorable period of service from September 1981 to September 1985. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 3. Visual impairment, including as a residual of a claimed in-service head injury, was not incurred in the Veteran's honorable period of service from September 1981 to September 1985. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 4. A cervical spine disorder was not incurred in the Veteran's honorable period of service from September 1981 to September 1985. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The appellant served in the United States Army from June 1977 to September 1978, under other than honorable conditions. The appellant served in the United States Navy on active duty from September 1981 to September 1985. The appellant immediately re-enlisted for a third period of active duty from September 1985 to May 1988, but this period of service with the Navy was served under other than honorable conditions. In light of the foregoing, a June 2004 Administrative Decision regarding the character of the appellant's discharge determined that the appellant's periods of service from June 1977 to September 1978 and from September 1985 to May 1988, served under other than honorable conditions, act as a bar to any entitlement for VA benefits and Chapter 17, Title 38, health benefits (for disability incurred in or as a result of disease or injury incurred during those two periods of service). See 38 C.F.R. § 3.12(d)(4) (a discharge because of willful and persistent misconduct is considered to be under dishonorable conditions). The decision also established basic eligibility to benefits based on the second period of faithful and meritorious service from September 1981 to September 1985. In other words, the administrative decision determined that service connection may only be established for a disability that was incurred in or aggravated by the appellant's period of service which commenced in September 1981 and ended on September 9, 1985. After the RO issued the administrative decision in July 2004, a "VA Star Review" determined that there was an error associated with the findings in the July 2004 administrative decision with regard to the character of the appellant's discharge. Specifically, the review explained that because the appellant's third period of service, beginning in September 1985, which was served under other than honorable conditions, came as an immediate reenlistment following the second "honorable" period of service, the second discharge was conditional upon the character of discharge for the third period of service. The Star Review further explained that for conditional discharges the evidence must show completion of the obligation of active service at the time of entry, even if the subsequent discharge was otherwise other than honorable. The Star Review indicated that the RO's July 2004 administrative decision did not make a proper determination regarding eligibility for complete separation, and eligibility for benefits during Navy service had not been properly determined. After the case was remanded in May 2010, another RO administrative decision regarding the character of the Veteran's discharge, dated in March 2010, was added to the claims file. In the March 2010 administrative decision, the RO determined, based solely on the appellant's reported history, that the appellant's 4-year period of service from September 1981 to September 1985 was a completed 4-year term of obligation at enlistment; thus the honorable discharge in September 1985 was not conditional upon the discharge in 1988. In this regard, the RO noted that numerous unsuccessful attempts had been made to obtain service personnel records from the appellant's 1981-1988 service from the National Personnel Records Center (NPRC) through PIES requests conducted in 2003, 2008, and 2011. These requests, and the negative replies, are clearly documented in the claims file. Using a different searching method, the NPRC was finally able to locate the appellant's personnel records from his period of service beginning in September 1981, and they were recently added to the claims file. These records show that the appellant's initial enlistment obligation in the Navy was three years of active duty and three years of inactive duty. The DD Form 214 shows that the Veteran completed a four year period of active service from September 1981 to September 1985. In summary, the Board can only consider whether the Veteran is entitled to VA benefits for disability resulting from a disease or injury that was incurred in or aggravated by his honorable period of service commencing on September 24, 1981 and ending on September 9, 1985. Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the claims of service connection for headaches, a neck disorder, vision problems, and hearing loss, the RO sent a pre-adjudicatory letter to the Veteran in August 2004. This notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for service-connection, and the relative duties of VA and the claimant to obtain evidence. The Veteran did not respond to the letter, and did not provide any evidence to support his claim. The RO obtained, to the extent they were available, the Veteran's service treatment records and service personnel records from all three periods of service. The RO also provided the Veteran with VA examinations to assess the current nature and likely etiology of any headache disability, hearing loss disability, a cervical spine disorder, and vision disability. The RO denied the Veteran's claims in a November 2004 rating decision. The Veteran submitted a timely NOD and a statement in support of his claims. The Veteran also presented testimony in support of his claims at a RO hearing before a DRO in April 2005. The RO continued the denial of the Veteran's claims in a May 2005 Statement of the Case and a May 2008 Supplemental Statement of the Case. In a March 2006 letter, the RO notified the Veteran of how effective dates and disability ratings are assigned for grants of service connection, in compliance with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). In September 2008, the Veteran testified at a travel Board hearing before the undersigned. With respect to the RO and Board hearings, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ and the RO official noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran, in turn, provided testimony in support his claim that he sustained a head injury in service while aboard the U.S.S. Midway in the 1980's, although he was unable to narrow the scope of a search to a two-month period which is necessary for a search of specific incidents. Nonetheless, the RO did receive a Command History Report from the Navy for the USS Midway during 1983. The Veteran also testified that he developed a hearing loss disability as a result of in-service noise exposure. Finally, the Veteran indicated that he had received VA treatment from the East Orange VA Medical Center for these injuries. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board issued a remand in May 2010. At that time, it was still not clear as to whether the Veteran's service resulted in a complete bar to VA benefits and the remand directives instructed the RO to make a determination as to whether the September 9, 1985 discharge was conditional upon an honorable discharge for his period of immediate re-enlistment commencing on September 10, 1985. The RO thereafter attempted to obtain additional service records and additional VA treatment records. Some VA outpatient records were obtained, but the RO was unable to obtain any additional service personnel or service treatment records pertaining to the period of service from September 1981 to September 1985. The Veteran was notified that additional service records could not be obtained and also of alternate sources of evidence that could supplement the available records. See RO letter dated in December 2011 and an August 2013 report of contact. The Board issued another remand in July 2012. In that remand, the Board essentially indicated that the RO had not exhausted all possible search avenues to obtain Navy records in order to corroborate the Veteran's report of a plane crash on his ship during which he claims to have suffered a head injury. The remand directed the RO to obtain from the Veteran a two-month period of time during which the plane accident occurred; and, if he responded, then a search for deck logs was to be undertaken. The Veteran did not respond to this request. However, a review of the previously obtained Navy Command History Reports shows that there was an F-45 landing accident on June 4, 1983 where the pilot and aircraft were lost at sea. In addition, the RO requested another search for the Veteran's Navy personnel file. The RO was advised of an alternate search method and provided the criteria to the NPRC. In August 2013, the RO received the Veteran's Navy personnel file. The RO also requested additional service treatment records from the Navy hospital where the Veteran's claims to have received treatment during service, as well as from the NPRC. The RO obtained a negative response from the Navy hospital and the NPRC that no additional service treatment records could be located. Because the RO obtained information from the Navy corroborating a plane accident in 1983, and because the RO ultimately obtained the Veteran's Navy personnel file (which was deemed unavailable at the time of the July 2012 remand), the purpose for which the deck logs were initially sought has been fulfilled. Therefore, any defect as to the RO's lack of an additional search for deck logs is harmless error. The July 2012 remand also directed the RO to provide additional VA examinations for the Veteran to ascertain the current nature and likely etiology of the claimed disabilities because these medical opinions were necessary in order to decide the claims. VA medical opinions were obtained in November 2012 and May 2013. The opinions are adequate because they were based on a review of the history, examinations and a rationale was provided. Although the examinations were conducted before the Navy personnel file was received, the contents of the Navy personnel file only serve as additional evidence to support the examiner's opinions. These records in no way contradict any findings by the 2012/2013 examiners. Thus, any procedural defect in this regard is harmless error. The examinations of record provide the necessary evidence to fairly adjudicate the claims decided herein. In addition, the RO obtained and associated with the Veteran's claims file and/or Virtual VA file, VA treatment records, pursuant to the remand instructions, and Navy personnel records and all obtainable Navy medical records. Accordingly, the RO substantially complied with the Board's remand directives, and no further action is necessary in this regard. The agency of original jurisdiction (AOJ) adequately complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Finally, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Service Connection The Veteran seeks service connection for hearing loss, a headache disability, a cervical spine disability and a vision disability, all reportedly incurred during his honorable period of service from September 1981 to September 1985. At his personal hearing before the undersigned in September 2008, the Veteran testified that during service in the United States Navy, he suffered an injury while serving aboard the USS Midway in 1983. The Veteran testified that when he was serving as a firefighter on the flight deck of his ship, there was an incident where an F-18 fighter jet was trying to land on the ship and it crashed and burned. The Veteran's job was to help put the fire out. While attempting to go through the watertight hatch, another person was trying to come through the other side, and this caused the Veteran to hit the top of his head. According to the Veteran, he ended up with a cut in his head that needed stitches, and ever since that time, he has had headaches, neck pain, and vision problems. The Veteran asserts that he was treated for his injuries at the hospital on the ship. With regard to the claim of service connection for hearing loss, the Veteran testified that in addition to the flight deck noise from aircraft, he also served as a boiler operator and boiler tech, which included welding duties. The Veteran testified that he was exposed to loud noises every day during service in the Navy. The service treatment records (STRs) are negative for any evidence of a head injury or treatment of any residuals therefrom. Further, the Veteran's Navy personnel records are also negative for any findings regarding a head injury or any disabilities or complaints related to hearing loss, headaches, blurred vision, or a cervical spine disorder. The Veteran's Report of Medical Examination at discharge in June 1978, at the end of his Army service shows all systems normal and no hearing loss disability was diagnosed. The Veteran's audiometric findings on examination indicated a pure tone threshold of 25 decibels at 500 Hz bilaterally and at 1000 Hz. in the right ear. All other pure tone thresholds at 1000, 2000 3000 and 4000 Hz. were 15. Audiometric results on the Veteran's separation examination, show pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 25 25 20 25 25 25 LEFT 25 25 15 25 20 25 A hearing loss disability was not diagnosed. A VA audiology examination in October 2004 indicates that the Veteran had noise exposure in the Navy and had difficulty hearing. The examiner indicated that an ear examination was normal and an audiometric examination showed bilateral moderate sensorineural hearing loss. The examiner opined that the Veteran's sensorineural hearing loss was at least as likely as not due to his military service. The examiner provided no rationale for his opinion. As a result, the opinion is not entitled to any probative weight. An August 2004 VA eye examination report acknowledges the Veteran's complaints of blurred vision, and notes that his ocular history was positive for blurred distance and near vision without correction in both eyes. The only finding on examination was refractive error. A September 2004 VA orthopedic examination acknowledges the Veteran's reported history of a head injury during service when he hit his head on the hatch in the Navy and loss consciousness. The Veteran also reported that the laceration on his forehead was stitched up and that he had hit his head many other times both before and after service and also while in the Navy. He said that his head injury did not bother him, but complained of intermittent stiff neck and stiffness into the shoulders, as well as frequent headaches; and, blames these conditions on his in-service head injury. The diagnosis was status post minor head injury while in service, which healed without sequelae; and, chronic neck tension as the cause of his headaches. The examiner opined that it was not likely that his head injury led to the increased neck tension. At his Board hearing in September 2008, the Veteran testified that he began going to the VA Medical Center (VAMC) in East Orange for back/neck treatment prior to filing his claim in June 2003. The Veteran also testified that his only treatment was at the VAMC in East Orange. Finally, the Veteran testified that he noticed that he had trouble hearing people around him while he was still in service. Pursuant to the May 2010 Board remand directives, the RO obtained VA outpatient treatment records from July 10, 2003 through October 13, 2004. The VAMC's October 2011 cover letter associated with these treatment records specifically indicates that there was no record in the current system of treatment dated January 1, 1988 through July 9, 2003, and that included a complete search of the active files as well as archived listings. The Veteran was notified of this in the January 2012 Supplemental Statement of the Case. A review of the Navy's Command History Report of 1983 indicates that there was a landing accident on June 4, 1983 with the pilot and aircraft lost at sea. There is no indication of a fire related to that accident or during any part of 1983. In a November 2012 VA examination report, the Veteran reiterated his contentions regarding an in-service head injury aboard the USS Midway, and also reported chronic intermittent neck pain radiating to the shoulders, and mild frontal headaches since the accident. November 2012 x-rays revealed mild retrolisthesis of C5 on C6; and, straightening of the cervical spine. Vertebral body height was maintained. Moderate degenerative disc disease was noted at the C5-C6 and C6-C7 levels. The posterior elements appeared grossly intact. The atlantoaxial articulation was maintained and the prevertebral soft tissues appeared grossly unremarkable. The examiner concluded that the Veteran had cervical degenerative disc disease with no objective evidence that it had its onset while in service and no mention of any complaints regarding the neck in the service medical records, therefore, the examiner opined that the Veteran's cervical degenerative disc disease (DDD) was less likely than not related to his time in service. On VA audiological evaluation in November 2012, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 20 25 25 LEFT 20 15 20 25 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. The diagnosis was sensorineural hearing loss in the right ear and normal hearing in the left ear. The examiner referred to VA audiometric findings from October 2004, which revealed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 20 25 25 LEFT 20 15 25 25 The examiner noted a review of the claims file and opined that the Veteran's hearing loss was not as likely as not cause by or a result of an event in service. The examiner explained that the pure tone findings in the claims file were within normal limits bilaterally and indicated no significant threshold shifts. The examiner also based his opinion on the Veteran's report of his responsibilities during service as well as occupational noise exposure as documented in a VA examination report from 2004. A review of the record shows that the September 2004 VA medical record to which the examiner refers indicates that the Veteran was looking for work at Amtrak; however, a review of the VA records associated with the Veteran's Virtual VA folder shows the Veteran's post-service employment history on a VA mental health assessment in November 2011. That report indicates that the Veteran has a past history of employment as a boiler operator. The Veteran last worked for a pharmaceutical company in NJ where he was a boiler operator for six months. Prior to that the Veteran worked at a university as a boil operator for two years 2008-09. The Veteran worked at another facility as a plumber for a period of one year 2007. The Veteran worked for the Dept Of Public Works where he was a boiler operator from 1999-2007. This employment history is consistent with the examiner's report of post-service occupational noise exposure. The examiner in 2012 also noted the Veteran's assertions that his hearing loss was related to in-service noise exposure and indicated that per the Veteran's report, ear protection was reportedly available and used. The November 2012 eye examination report indicates that the Veteran does not have any eye condition other than refractive error. The Veteran reported that after his head injury he lost consciousness and when he awoke, his vision was blurred. He further reported that he has suffered from headaches ever since. There was no history of eye injury or eye surgery. On examination, the Veteran had uncorrected distance vision of 20/50 in the right eye that was corrected to 20/40 or better. His uncorrected vision in the left eye was 20/40 or better. Corrected near vision in both eyes was 20/40 or better. The Veteran did not report blurred vision. Eye examination was normal and the Veteran did not have a visual field defect. Finally, a November 2012 VA examination of the Veteran's headaches indicates that the Veteran has a diagnosis of migraine headaches, diagnosed in September 2004. The examiner determined that the Veteran had recurrent moderately severe migraine and tension headaches. At the time of this examination, the examiner did not have access to the Veteran's claims file; however, the claims file was made available to the examiner in May 2013. Upon review of the claims file, the examiner noted that there was no record of a head injury in service and no symptoms of a head injury or headaches were found during the Veteran's honorable period of service and thereafter. Therefore, according to the examiner, it is less likely as not that the Veteran's current headaches are related to or caused by service. Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. In this case, the criteria for establishing service connection for hearing loss, headaches, a cervical spine disorder and visual impairment are not met. Upon separation examination, the spine, neurologic system, ears and eyes were evaluated as normal. Also, the Veteran signed a statement indicating that he was informed of and understood the provisions of Article 15.56(3) of the Manual of the Medical Depart. Again, the opinion of the 2004 VA examiner linking the Veteran's hearing loss to service is not probative, because no rationale was provided. By contrast, the November 2012 examiner specifically indicated that no hearing loss was noted in service, and any current hearing loss is more likely unrelated to noise in service. The examiner supports the opinion by pointing out that the Veteran had a post-service employment history that included years of occupational noise exposure. In addition, the examiner found that there was no significant threshold shift during service and no reports of trouble hearing during service. The Veteran's discharge examination did not diagnose a hearing disability. The preponderance of the evidence is against linking the Veteran's current hearing loss to service. While the Veteran currently has hearing loss that meets the requirements of 38 C.F.R. § 3.385 and he is certainly competent to report when he noticed a hearing loss, and such assertions are credible and probative, his statements are outweighed by the more probative opinion of the VA examiner. The Doctor of Audiology conducted an examination, reviewed the history including audiological testing in service, and provided an opinion supported by a rationale. Based on the examiner's medical training, the medical opinion is entitled to greater weight. With regard to the claimed visual impairment, the record establishes that there is no current disability of the eyes other than refractive error. Both the 2004 examiner and the 2012 examiner specifically indicated that the only disabling condition of the eyes was his refractive error, which was fully correctable to 20/40 or better in both eyes. Significantly, congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2013); Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Myopia, astigmatism, and presbyopia are all considered to be forms of refractive error. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10 (December 29, 2007). Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. Congenital or developmental defects are not diseases or injuries for the purposes of service connection, and can only be granted by establishing aggravation of the congenital disorder. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Although the Veteran reported blurred vision at the time of the claimed in-service head injury, no blurred vision has been reported at any time during the period covered by this appeal other than what was deemed refractive error. In this case, viewing the evidentiary record in this entirety, there is no medical evidence to show that the Veteran is suffering from a service connectable eye disability. Under 38 U.S.C.A. § 1110 (West 2002), 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); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Veteran, as a lay person, is not competent to diagnose an eye disability as such is beyond the capability of a lay person to observe. Regarding the headaches and cervical spine disability, there is no objective evidence showing that the Veteran suffered a head injury in service and his separation examination report was negative for any complaints treatment or diagnosis of headaches or a cervical spine disability. Even if the Veteran did injure his head in 1983 as he has reported, the preponderance of the evidence is against finding that the Veteran's current headaches and cervical spine disability are related to that head injury. While the September 2004 neurological examiner diagnosed posttraumatic headache disorder and chronic cervical strain, the examiner did not provide an opinion supported by a rationale. Accordingly, no probative weight attaches to the examination report. The September 2004 spine examiner determined that chronic neck tension caused the headaches and it was not likely that his head injury led to the increased neck tension. He also opined that the status post minor head injury while in service healed without sequelae. In May 2013, a VA examiner provided an opinion that no symptoms of head injury or headaches were found from September 1981 to 1985, and thereafter, therefore the current headaches are less likely as not related to or caused by service. Moreover, the 2012 spine examiner determined that there were no complaints regarding the neck in the service treatment records therefore his current disorder was less likely than not related to his time in service. The separation examination found no abnormalities with respect to the spine or neurologic system nor did the Veteran assert any relevant complaints at the time of separation. Accordingly, the Veteran's assertions that he currently has disabilities that began after the injury in service are not credible as they conflict with the separation examination. Therefore, the preponderance of the credible and probative evidence is against finding that the Veteran has headaches and a cervical spine disorder as a result of a head injury in service. For all the foregoing reasons, the preponderance of the evidence is against the claims and service connection for hearing loss, loss of vision, a cervical spine disability and headaches is not warranted. As the preponderance of the evidence weighs against the claims, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for hearing loss is denied. Service connection for headaches is denied. Service connection for visual impairment, claimed as a residual of an in-service head injury, is denied. Service connection for a cervical spine disorder is denied. REMAND The November 2012 VA audiological examination report did not include an opinion as to whether tinnitus is related to service. It appears that the examiner did not provide the opinion since the Veteran did not report having tinnitus at that time. However, since tinnitus was diagnosed by VA in August 2003, an addendum opinion should be requested. Accordingly, the case is REMANDED for the following: 1. Request an addendum opinion from the November 2012 VA audiological examiner or another qualified examiner. As tinnitus was diagnosed by VA in August 2003, during the pendency of this claim, the examiner is asked to express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that tinnitus began in or is otherwise the result of his active service from September 1981 to September 1985, to include as a result of credible reports of excessive noise exposure therein. A complete rationale for any opinion expressed must be provided. If the clinician determines that an interview or examination is necessary in order to provide the requested information then such should be scheduled. 2. Thereafter, take any other development action that is deemed warranted and then readjudiate the claim. If the benefit sought is not granted, issue a supplemental statement of the case to the Veteran and his representative and provide them with an opportunity to respond before the case is returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify the appellant if further action is required on his or her part. The appellant 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). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs