Citation Nr: 1337179 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-10 758 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for eye problems and vitreous degeneration. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant, (the Veteran) had active service from October 1952 to July 1954, and from August 1954 to July 1954. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the RO in Huntington, West Virginia. Although the Veteran requested a Board hearing in his substantive appeal (VA Form 9), he specifically withdrew his request in correspondence signed by him and received at the Board in August 2013. Although the Veteran disagreed with the denial of service connection for claimed hypercholesterolemia, hypertension, prostate cancer, tinea pedis, onychomycosis, and diabetes mellitus, he elected not to perfect appeals as to those matters to the Board. On the VA Form 9, he indicated that he had read the statement of the case and only wished to perfect appeals as to the denial of service connection for bilateral hearing loss and vitreous degeneration. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. If the statement of the case and any prior supplemental statements of the case addressed several issues, the substantive appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. See 38 C.F.R. §§ 20.200, 20.202 (2013). Accordingly, as the substantive appeal applies to only the issues of entitlement to service connection for hearing loss and vitreous degeneration, the Board has no jurisdiction over the other matters listed in the statement of the case. The Board emphasizes that the Veteran has not withdrawn an appeal as to any issue (see 38 C.F.R. § 20.204 (2013)). Therefore, action by the Board to dismiss an appeal is not necessary. Rather, the Veteran has not perfected appeals as to the denied claims of entitlement to service connection for hypercholesterolemia, hypertension, prostate cancer, tinea pedis, onychomycosis, and diabetes mellitus. The Board has not only reviewed the physical claims file, but also the electronic file on the "Virtual VA" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran sustained acoustic trauma during service; the Veteran's bilateral hearing loss is related to noise exposure in service. 3. There was no injury or disease of the eyes during service; the current eye disorders are not related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). 2. Eye problems and vitreous degeneration were not incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he sustained a bilateral hearing loss disability as a result of his service. In September 2008 correspondence, the Veteran described having been assigned to a 105mm gun while stationed in Korea, and having fired the gun all day and night. The Veteran asserts that his hearing has never been the same since. He also described firing two 30 caliber machine guns while stationed at Fort Bliss. His representative has asserted that his duty as a truck driver also exposed him to loud sounds. After a review of all of the evidence, the Board finds that the essential elements of service connection for bilateral hearing loss are either fully met or the evidence for and against them are in relative equipoise. The Board finds that the Veteran has a current bilateral hearing loss "disability" that meets the criteria at 38 C.F.R. § 3.385, based on audiometric test scores of 40 decibels or more. A January 2003 audiology assessment reveals the following puretone thresholds in Decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 70 70 70 LEFT 55 70 65 70 65 Speech recognition ability in the right ear was 76 percent. Speech recognition ability in the left ear was 72 percent. The Board finds that the Veteran was exposed to loud noises (acoustic trauma) in service. The Veteran is competent to describe his exposure to loud sounds in service, and the Board finds that his description is credible and consistent with his service. The Board therefore finds that the Veteran sustained acoustic trauma during service. There is no medical opinion of record regarding the etiology of current bilateral hearing loss. In September 2013 written argument, the representative requested that the issue of entitlement to service connection for bilateral hearing loss be remanded for a VA examination and opinion. The Board finds that this is not necessary. The Veteran's diagnosis of sensorineural hearing loss can be considered an organic disease of the nervous system (see 38 C.F.R. § 3.309(a)), which renders applicable the provisions for presumptive service connection for certain chronic diseases which are either shown to be chronic in service or noted in service, but not shown to be chronic. See 38 C.F.R. § 3.303(b), 3.307, 3.309(a). The Board acknowledges that sensorineural hearing loss was not shown to be chronic during service, based on normal clinical findings at service separation. The service separation examination did not include an audiogram, but included a whispered voice examination showing a score of 15/15, which was interpreted as normal auditory acuity. However, the Veteran has reported that he experienced a decrease in hearing acuity following an extended session of firing of a 105mm gun while stationed in Korea. The Veteran's service records reveal that he served with the 12th Field Artillery Battalion and was awarded the Korean Service Medal. The Veteran's description of his service is consistent with engagement in combat with the enemy. The Veteran is competent to report his symptoms, and the evidence does not contradict this assertion. The evidence only shows that his hearing was normal at service separation, not that it was unaffected. Where a condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, the presumption of service connection can be satisfied by a showing of continuity of symptomatology after service. 38 C.F.R. § 3.303(b). VA law does not define "noted" in the context of 38 C.F.R. § 3.303(b) and does not establish who must do the noting or the format of the notation. The Board finds that the Veteran is competent to note a decrease in hearing acuity and that it is not necessary for him to have officially recorded or reported his notation. The Board finds that his recollection that his hearing was diminished constitutes a notation of hearing loss during service, even though it was clearly not chronic at that time. Therefore the continuity of symptomatology provisions apply. Here, the Veteran has reported that his hearing has never been the same following an incident of having to fire his 105mm gun all day and night. Thus, non-chronic symptomatology noted in service has been related by continuity of symptomatology after service to a current diagnosis of bilateral sensorineural hearing loss. The Board acknowledges that the Veteran reported during a September 2000 audiology visit that he had onset of hearing loss 5 years prior; however, the examiner specifically recorded that the Veteran's daughter disputed this assertion. The Veteran's daughter apparently believed that his symptoms had been present from an earlier time. This raises sufficient doubt regarding the accuracy of the 5-year onset for the Board to diminish the probative weight attached to it. Based on the notation of an organic disease of the nervous system in service, which is related by continuity of symptomatology to a post-service diagnosis of sensorineural hearing loss, the Board finds that the evidence for and against a nexus between acoustic trauma in service and current sensorineural hearing loss has reached the point of relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As the Board is granting service connection for bilateral hearing loss, the claim is substantiated, and there are no further duties under the Veterans Clams Assistance Act of 2000 (VCAA). Wensch v. Principi, 15 Vet App 362, 367-368 (2001); 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004. Turning to the issue of entitlement to service connection for what the Veteran has termed eye problems and vitreous degeneration, it would appear that the condition for which the Veteran is seeking service connection is actually vitreous floaters. An August 2006 VA eye clinic note shows that the Veteran complained of black floating things in the left eye for the prior 3 weeks. The examiner diagnosed floaters in the left eye with no vitreous hemorrhage or evidence of a tear. Floaters are defined as "deposits in the vitreous of the eye, usually moving about and probably representing fine aggregates of vitreous protein occurring as a benign degenerative change." See Dorland's Illustrated Medical Dictionary 727 (31st ed. 2007). An August 2006 addendum by a VA ophthalmology staff physician indicates that a slit lamp examination revealed a single pre-retinal vitreous opacity in the left eye consistent with a post vitreous detachment. Thus, the Board surmises that the Veteran's reference to vitreous degeneration relates to the definition of floaters as a benign degenerative change and/or vitreous detachment. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that vitreous floaters, or vitreous detachment, are not related to service. The Veteran has not been specific regarding the asserted injury or disease in service that he relates his recent eye problems to, or the theory of etiology he believes would support a grant of service connection. In September 2013 written argument, the Veteran's representative asserted that the Veteran's vitreous degeneration was related to exposure to tear gas and mustard gas during service. Service treatment records reveal no treatment for eye complaints in service, and no treatment for exposure to tear gas or mustard gas. The Veteran has provided no description of the event or symptoms he may have experienced at the time. Thus, presuming that the Veteran was exposed to tear gas and mustard gas based on his combat participation, the evidence demonstrates no eye disability resulting. There were four examinations conducted during the Veteran's service, in September 1952, July 1954, August 1954, and August 1957. Each examination contains normal clinical findings regarding the eyes, visual acuity, and ophthalmoscopic examinations, providing some limited evidence against this claim. The Board acknowledges that, at the end of his Korean War term of service in July 1954, the Veteran reported that he had a history of eye trouble, however, his description was that his eyes burn when reading. If, in fact, he had sustained an eye injury based on his described and presumed exposure to tear gas or mustard gas, it is reasonable to expect that this would have been reported, if not at the time of the injury, at the time of the examination when he reported eye trouble. In this context, the comparatively benign description of eye trouble on reading does not support the claim, but provides evidence against the claim. This is a time at which it would be reasonable to expect a full reporting of the injury and onset of symptoms. Rather than supporting his assertion, the Veteran's report provides probative evidence against an injury or disease of the eyes during service based on the injury he has cited from so many years ago. Moreover, subsequent reports of medical history in August 1954 and August 1957 contain his assertion that he had no history of eye trouble, also providing probative evidence against an injury or disease of the eyes in service. Most significant to the Board is that the current reports of symptoms include vitreous floaters, but do not include burning of the eyes on reading, the problem the Veteran cited. The in-service and post-service symptoms would appear to be completely different. In effect, the Veteran's own statements provide some evidence against his own claim on this point. After service, the first medical evidence regarding the eyes comes from a September 2005 VA eye consultation, which is noted as his first diabetic eye examination. There were no pertinent findings regarding an eye disability or vitreous floaters. The next treatment report is the August 2006 report showing a diagnosis of floaters. There is no medical opinion that purports to relate vitreous floaters to service or to tear gas or mustard gas exposure. On the VA Form 9, the Veteran asserted that the hearing loss and eye condition were caused by his military service and had been present since discharge. The Board has accorded the Veteran the benefit of the doubt regarding hearing loss, principally because the symptoms he noted in service are the same as those experienced after service and currently, and because the evidence does not significantly contradict his competent account of onset of hearing loss. The Board also notes that sensorineural hearing loss is among the chronic disease to which the provisions governing continuity of symptomatology apply; whereas, vitreous floaters are not among those chronic diseases. Moreover, in contrast to hearing loss, the Board finds that there is significant contradictory evidence regarding the eye disability, and the weight of the evidence is against this assertion. The clinical evidence definitively demonstrates post-service onset of the vitreous floaters in 2006. As noted above, the Veteran reported to a VA clinician that the onset of symptoms was 3 weeks prior to his August 14, 2006 appointment. The Board considers the Veteran's account to his treating physician to be more reliable and accurate than the conflicting account presented in the VA Form 9. This is in simple recognition of the fact that there is a strong motive to present accurate facts to a health care provider in order to receive proper care. In contrast, when the Veteran thereafter presented his account to VA, he was seeking VA benefits rather than medical treatment. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate the onset of symptoms as he remembers it. Thus, his competency is not at issue. Rather, it is the accuracy of the Veteran's recent account in the VA Form 9 which the Board finds is lacking. As noted above, the Veteran also provided a more recent account of onset of hearing loss; however, this was immediately disputed by his daughter. In the case of hearing loss, this raised a reasonable doubt that was resolved in favor of the claim. The Board finds no similar doubt regarding the onset of vitreous floaters. The Board also notes that, prior to this decision, service connection was not in effect for any disability, and as of this decision, service connection is only in effect for bilateral sensorineural hearing loss. Thus, to the extent the Veteran asserts a relationship between his recent eye problems and diabetes mellitus, which appears to be raised by the diabetic eye examination report, such assertion cannot support a grant of service connection for an eye disability. As there was no disease or injury of the eye in service, and as the weight of the evidence demonstrates that there is no etiologic relationship between any current eye disability and service, the Board concludes that service connection for the claimed eye problems and vitreous degeneration is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Neither the Veteran nor his representative has raised any issue regarding the VCAA notice provided to the Veteran for his eye claim or the assistance provided. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions. The Veteran has not identified any additional outstanding medical evidence that is necessary to resolving the eye claim. While the service treatment records have been obtained, a review of those records reveals that they consist of photocopies of originals which show evidence of scorching and water damage. It cannot be determined whether the records are complete. In such circumstances, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board has resolved the doubts raised regarding the etiology of hearing loss in the Veterans favor. Regarding the eye claim, the Veteran has not requested additional assistance, and evidence for and against service connection are not in relative equipoise. Rather, the weight of the evidence is against the claim. The Board also notes that a VA examination has not been obtained regarding the eye claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Veterans Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed eye disability is related to his military service is his own conclusory generalized lay statements relating post-service vitreous floaters to remote in-service gas exposure from many, many years ago. These assertions are unsupported by even highly speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for eye problems and vitreous degeneration is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs