Citation Nr: 1339867 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-33 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an eye disorder. 3. Entitlement to an initial compensable evaluation for pseudofolliculitis barbae disability. 4. Entitlement to an initial compensable evaluation for allergic rhinitis disability. 5. Entitlement to an initial compensable evaluation for genital herpes disability. 6. Entitlement to an effective date prior to April 30, 2007 for award of service connection for pseudofolliculitis barbae disability. 7. Entitlement to an effective date prior to April 30, 2007 for award of service connection for allergic rhinitis. 8. Entitlement to an effective date prior to April 30, 2007 for award of service connection for genital herpes disability. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1980 to November 2000. These matters come on appeal to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs Regional Office located in Roanoke, Virginia (RO). In pertinent part of that rating decision, the RO denied the benefits sought on appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The Board acknowledges that the Veteran has recently submitted additional statement in support of his claims in September 2013; however, his statement is cumulative of the arguments that he has previously submitted. Also, the Veteran has submitted copies of his service treatment records that are duplicative of those records already contained in the claims folder. The Board finds it may proceed with adjudication of the Veteran's claim for entitlement to service connection for bilateral hearing loss without prejudice to the Veteran. The issues of entitlement to service connection for an eye disorder as well as entitlement to increased initial evaluations and earlier effective dates for award of service connection for pseudofolliculitis barbae, allergic rhinitis, and genital herpes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the competent evidence of record is against a finding that the Veteran has a current bilateral hearing loss disability that is etiologically related to his period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, VA sent a letter to the Veteran in November 2007 that addressed the notice elements concerning his claim. The letter informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with audiology examination in June 2013, in which the examiners identified the nature and severity of the Veteran's claimed bilateral hearing loss, and the examiner reported the audiogram results. The June 2013 VA examiner stated that an etiology opinion for the Veteran's bilateral hearing loss could not be made without resorting to speculation because evidence of record demonstrated that the Veteran had normal hearing acuity during his period of service and there was only evidence of some hearing loss present at 3,000 Hertz, which is not typical for noise induced hearing loss. The Board finds that the opinion is still adequate because the examiner explained the rationale for such an opinion. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Specifically, the examiner listed what information was lacking in the record and why it prevented a definitive opinion from being rendered. Therefore, a remand for a new opinion or examination is not necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the rules regarding service connection in general, there are additional considerations for addressing claims of entitlement to service connection for hearing loss. Under the laws administered by VA, a certain threshold level of hearing impairment must be shown in order for hearing loss to be considered a disability. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater; or when speech recognitions scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. With audiology examinations, the threshold for normal hearing is from zero to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet App. 155 (1993). However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss. He asserts that he has bilateral hearing loss as a result of firing weapons without the use of any hearing protection. See the report of a June 2013 VA examination report. The Veteran also contends that he has hearing loss as a result of performing his duties as signal systems analysis for over fifteen years where he was subjected to high pitch and multiple frequency signals. See April 2009 statement in support of claim. A review of the Veteran's service treatment records show that he underwent at least five audiology evaluations during his active service. None of these service audiometric results demonstrate findings of hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. While the audiogram results during his period of service do reflect that the Veteran had some diminished levels of hearing acuity from the time of his enlistment to his later years on active duty, none of these results show hearing loss as defined under 38 C.F.R. § 3.385. See Hensley, 5 Vet App. at 155. The most recent service audiometric come from the periodic examination report dated in July 1997, which revealed the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 0, 5, 5, 0 and 0 decibels in the right ear, and 0, 5, 10, 15, and 5 decibels in the left ear. The average pure tone thresholds were 2 decibels in the right ear and 7 decibels in the left ear. Although the record does not contain an examination report from the time of the Veteran's separation from service, the most recent audiometric findings of record from the report of a June 2013 VA audiology examination report still do not reflect hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. The report of a June 2013 VA examination report shows the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 10, 15, 15, 15 and 15 decibels in the right ear, and 10, 15, 20, 35, and 20 decibels in the left ear. The average pure tone thresholds were 14 decibels in the right ear and 20 decibels in the left ear. Here, the most recent audiometric findings reveal that the Veteran does not have any pure tone thresholds of 40 decibels or greater in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, that the Veteran does not have at least three pure tone thresholds at 26 decibels or greater at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 3.385. The Board acknowledges that the June 2013 VA audiology examination report shows that the Veteran's speech recognition scoring utilizing the Maryland CNC word list was 88 percent in the right ear and 84 percent in the left ear, which does demonstrate bilateral hearing loss disability as defined by VA. See 38 C.F.R. § 3.385 (speech recognitions scores of less than 94 percent for hearing loss disability). However, the June 2013 VA examiner concluded that these speech recognition scores were not valid due to language difficulties, cognitive problems, inconsistent speech discrimination scores that make the combined use of pure tone average and speech discrimination scores inappropriate. The VA examiner further stated that the while conducting the speech recognition test, the examiner had to modify the performance intensity function, and the level of presentation with the best performance were at 55 decibels for the right ear and at 49 decibels for the left ear. The examiner noted that given that the Veteran's pure tone thresholds reflected normal hearing in the right ear and mild loss in the left ear, it was expected that the Veteran's word discrimination scores would have been much better than what was acquired during the testing. Again, the VA examiner concluded that the Veteran's speech recognition scores were invalid. Without valid speech recognition scoring utilizing the Maryland CNC, the record does not show that the Veteran bilateral hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. While the Board has considered the Veteran's assertions of hearing difficulties, he does not have the appropriate training and expertise to provide the testing results needed to establish current disability within the meaning of 38 C.F.R. § 3.385 on the basis of lay assertions, alone. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). VA laws and regulations provide that there must be a current hearing loss disability in order to warrant an award of service connection. See Hickson, 12 Vet. App. at 253 (1999). Here, the June 2013 VA audiology examination did not reveal puretone threshold findings that show hearing loss in either ear as to constitute a disability as defined by 38 C.F.R. § 3.385. Moreover, the VA examiner concluded that the Veteran's speech recognition scores were invalid. There are no other audiometric findings of record. The Veteran has not submitted any post-service private treatment records that should he has hearing loss disability as defined by VA in either ear. Without a diagnosis of a hearing loss disability, the claim for service connection for hearing loss must be denied. 38 C.F.R. §§ 3.303 and 3.385. Even when, assuming arguendo, that the Veteran's June 2013 speech recognition scores were valid, the preponderance of the competent evidence of record is against a finding that the Veteran's bilateral hearing loss is causally related to his period of service. The Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). In this regard, the Veteran has reported that he was exposed to gunfire and multiple noise frequency during his period of service. Given the circumstances of the Veteran's duties in service, the Board finds that he was likely exposed to some noise exposure in service. Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. The question remains, however, whether the Veteran's bilateral hearing loss is related to such noise exposure. Here, the preponderance of the competent evidence is against such a finding. Again, the Board points out that a layperson is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 93 (1993). The Veteran is also competent to testify about observable symptoms such as hearing loss and continuity of symptomatology. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 303. However, the Board points out that the Veteran did not complain of bilateral hearing loss in service or for seven years thereafter. The record includes no medical documentation of any complaints of bilateral hearing to medical personnel prior to his filing of the claim for service connection in April 2007. The Board also again points out that VA examiner found that the Veteran's reports regarding his hearing-related symptoms are unreliable. Accordingly, given all the above, the Board finds that the Veteran's assertions of continuity of symptoms of bilateral hearing loss from service to the present simply are not credible. Moreover, there is no competent opinion that links the Veteran's bilateral hearing loss to his in-service noise exposure. Significantly, the Veteran has not presented or identified any contrary competent evidence or opinion that supports the claim. The June 2013 VA examiner stated that an etiology opinion for the Veteran's bilateral hearing loss could not be made without resorting to speculation. The examination report shows that the examiner reviewed the claims file and the findings from clinical examination, including the Veteran's reported history. The VA examiner noted that the evidence of record demonstrated that the Veteran had normal hearing acuity during his period of service and there was only evidence of hearing loss present at 3,000 Hertz, which is not typical for noise induced hearing loss. This inconclusive opinion is not probative and cannot be used in support of his claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010). Therefore, a nexus is not established. Finally, the Board notes that, as for any direct assertions by the Veteran that there exists a medical relationship between his bilateral hearing loss disability and service, such assertions provide no basis for allowance of the claim. As indicated above, the matter of medical nexus upon which this claim turns is a matter within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is shown to be other than a layperson without appropriate training and expertise, neither is competent to render a probative (persuasive) opinion on such a matter. See, e.g., Bostain, 11 Vet. App. at 127; see also Routen, 10 Vet. App. at186 (1997). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claims for service connection for bilateral hearing loss must be denied. 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 each 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). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND Initially, the Board notes that the Veteran has expressed his disagreement with the initial assigned noncompensable evaluations and assigned effective dates following the RO's August 2013 award of service connection for pseudofolliculitis barbae, allergic rhinitis, and genital herpes. See September 2013 notice of disagreement. However, the RO had not yet furnished the Veteran a statement of the case (SOC) addressing the Veteran's disagreements and the matters must be remanded. See Manlincon v. West, 12 Vet. App. 238 (1999). With regard to the Veteran's claim for entitlement to service connection for an eye disorder, originally claimed as vision impairment, a remand is need for additional development prior to the adjudication of the Veteran's claim. The Veteran has not yet been afforded a VA eye examination in conjunction with his claim for service connection. An April 2005 post-service private eye treatment record shows that the Veteran was assessed with myopia and pinguecula. The Board notes that refractive errors of the eyes are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VAOPGCPREC 82-90 (July 18, 1990). Myopia is a refractive error also called nearsightedness. Dorland's Illustrated Medical Dictionary 1094 (28th ed. 1994). Congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service- connected. Id. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including, 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. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990). While the Veteran has not asserted that he sustain direct trauma to his eye, he does complain that he sustained injury from straining his eyes while he performed his duties as a signal intelligence analysis. The Veteran asserts that as a signal intelligence analysis, he spent 8 to 10 hours a day working in a dark room viewing reconnaissance film through a signal magnifying eye-piece as well as working on computer screens. See September 2009 statement in support of claim. In addition, his service treatment records show that he complained of impaired vision during his period of service and his visual acuity decreased during his period of service from 20/20 uncorrected, bilaterally, to 20/100, uncorrected, bilaterally. Also, a March 1988 service eye consultation report shows that the Veteran presented with complaints of occasional eye tearing and difficulty seeing at night. He had a normal eye examination, but the examining service physician felt that he had possible asthenopic secondary to his job demands. The Veteran subsequently required eye-glass prescription to correct his vision. The Veteran has not yet been afforded a VA eye examination. The Board is without medical expertise to determine if the Veteran's current pinguecula was caused by his period of service or if the Veteran's refractive error (myopia) is the result of a superimposed injury during his period of service. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In sum, the Board finds that a VA examination is necessary to elucidate and reconcile the existing medical evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC with respect to the Veteran's claims seeking entitlement to initial compensable ratings and earlier effective dates for award of service connection for his disabilities due to pseudofolliculitis barbae, allergic rhinitis, and genital herpes. The Veteran, as well as his representative, should be informed of the period of time within which he must file a Substantive Appeal to perfect his appeal to the Board concerning this issue. 2. Seek the Veteran's assistance in identifying and obtaining any outstanding records of pertinent treatment records for his claimed eye disorder. 3. After all the available records have been obtained and associated with the claims folder, scheduled the Veteran for a VA examination in order to determine the nature and likely etiology of the claimed eye disorder. Following a review of the entire claims folder, the examiner should identify all current eye disorders. For any diagnosed refractive error (myopia), the examiner should opine whether it at least as likely as not (i.e., 50 percent or greater probability) that the refractive error results from a superimposed injury? In doing so, the examiner should consider the Veteran's reports that he strained his eyes looking at screens while performing his duties as signal systems analysis For each diagnosis identified other than refractive error (myopia), the VA examiner should opine as to whether it is at least as likely as not that any current eye disability had an onset during his period of service or is otherwise related to his period of service. If the examiner cannot provide the requested opinion, then he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made. 4. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs