Citation Nr: 1756741 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-33 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for loss of sight. 2. Entitlement to service connection for chronic ear infection. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and AR ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to December 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2015. A transcript of this hearing is of record. In December 2015, the Board remanded the current appellate claims for further development, to include competent medical examinations. Such examinations were accomplished in February 2016, and all other development directed by the Board's remand appears to be substantially accomplished. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The case has now been returned to the Board for additional appellate consideration. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic eye disorder that was incurred in or otherwise the result of his active service. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic right ear disability, other than hearing loss. 3. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a left ear disability that was incurred in or otherwise the result of his active service. 4. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a bilateral hearing loss disability that was incurred in or otherwise the result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for loss of sight are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for a grant of service connection for chronic ear infection are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for a grant of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as indicated in the Introduction, the Board determined in December 2015 that competent medical examination and opinion was required to resolve the Veteran's appellate claims. Such examinations were accomplished in February 2016. However, the Veteran's accredited representative contended in a November 2017 written statement that these examinations were not adequate for resolution of the Veteran's appeal. In pertinent part, the representative noted that the February 2016 VA eye examiner was an optometrist and not an ophthalmologist. The representative contended that an optometrist was not a medical doctor, has training and experience in treating a limited range of eye disorders, whereas an ophthalmologist is a specialist who has completed medical schools followed by years of training to become competent in identifying and treating all disorders of the eye, as well as performing surgical procedures on the eyes. However, the representative has not disputed this VA examiner does has the requisite training and experience of an optometrist. Thus, the examiner is qualified to provide competent medical evidence in this case. See 38 C.F.R. § 3.159(a)(1); see also Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); and Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (all of which generally stand for the proposition that any health care professional is qualified to render a medical opinion.). Further, the Board did not specify in the remand that the examination be conducted by an ophthalmologist, nor is there competent medical evidence that demonstrates the Veteran has an eye condition for which this examiner is not qualified to diagnose and determine the etiology thereof. As such, while an ophthalmologist may have more qualifications, the Board finds the examiner is adequately qualified for purposes of this case. The Veteran has not challenged the qualifications of the other February 2016 VA examiners who evaluated his ear infection and hearing loss claims. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Nevertheless, the representative contended in the November 2017 statement that the pertinent VA examiner's rationale as to the hearing loss claim was inadequate because the sole rationale for the negative opinion was that the service treatment records did not reveal hearing loss on active duty, even though the examiner admitted the whisper testing prior to separation was "not a valid measure of hearing sensitivity." However, a review of the stated rationale reflects that the lack of documented in-service findings was but one of the factors noted in support of the examiner's opinion. As detailed below, that rationale also included the Veteran's own account of his medical history at that examination, as well as review of other evidence of record. The Board further notes that the February 2016 VA examiners were familiar with the Veteran's medical history from review of his VA claims folder; no inaccuracies have been demonstrated with respect to the findings on these examinations as to the current nature of the claimed eye and ear disabilities; nor is there competent medical evidence that explicitly refutes the opinions expressed by these examiners as to the etiology of the current disabilities. For these reasons, the Board finds that the February 2016 VA examinations are adequate for resolution of the Veteran's appellate claims. Moreover, no other purported deficiency regarding the duties to notify and assist has been identified by the Veteran regarding this case, or in the conduct of his October 2015 hearing. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Analysis - Loss of Sight In regard to the loss of sight claim, the Board notes that, as a general rule, vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Such a condition is part of a life-long defect, and is normally a static condition that is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). The Board further notes that the Veteran was specifically noted as having defective vision on his October 1959 enlistment examination. In pertinent part, his distant vision was 20/100 for both eyes, correctable to 20/20. Similar results were noted on a subsequent December 1959 service examination. Where a preexisting disease or injury is noted on the entrance examination, 38 U.S.C.A. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In this case, the Veteran testified at his October 2015 hearing that his eyes did get worse during his period of military service. Further, the post-service treatment records reflect he currently has glaucoma, which is a disability for which service connection may be established. Nevertheless, the service treatment records do not document an increase in severity regarding the Veteran's pre-existing defective vision. Further, while the Veteran is competent, as a lay person, to describe vision problems the Board finds that competent medical evidence is required to determine whether such problems are due to something other than refractive error of the eye, and, if so, whether the current eye disorder was incurred in or otherwise the result of his active service. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board further notes that the only competent medical evidence to explicitly address the issue of whether the Veteran's current eye condition is etiologically linked to service is that of the February 2016 VA examination. In pertinent part, the examiner diagnosed bilateral glaucoma, and legal blindness. Moreover, the examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has already noted that the VA examiner was familiar with the Veteran's medical history from review of his VA claims folder. Moreover, the examiner accurately noted pertinent aspects of the Veteran's history regarding his eyes as part of the examination report. The examiner's opinion was not expressed in speculative or equivocal language, and was supported by stated rationale. In pertinent part, the examiner stated that the available service treatment records contained no evidence of an eye condition other than congenital/development refractive error, noting the findings of the October and December 1959 examinations as detailed above. The examiner also noted the Veteran's hearing testimony regarding when his eyesight began to get worse; various medical findings of record regarding his eyes over the years; that his blindness was caused by glaucoma; and summarized the nature and major risk factors for glaucoma. Further, the examiner stated no evidence was discovered of ocular injury or surgery during the Veteran's service; there was no scientific evidence of an association between congenital/developmental refractive error and glaucoma; and that there was no evidence the Veteran's diagnosis of glaucoma was discovered prior to 2001. Finally, the examiner stated there was no evidence supporting the presence of an eye condition or acquired eye disability that was related to or had its onset in service was discovered in the service treatment records, post-service treatment records, or the Veteran's statements in the record or at the examination itself. The Board reiterates that no competent medical evidence is of record which refutes the opinion of the February 2016 VA examiner as to the etiology of the Veteran's current eye condition. As such, the Board finds this examination and opinion is adequate, persuasive, and entitled to significant probative value. Further, the examiner's determination that the defective vision noted on entry was refractive error, and that his current glaucoma and associated blindness were unrelated to that refractive error, reflects service connection is not warranted on the basis of aggravation. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic eye disorder that was incurred in or otherwise the result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. Analysis - Chronic ear infections and hearing loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. In this case, the Board notes that the evidence of record, including the pertinent February 2016 VA examination, reflects the Veteran currently has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Further, Veteran was also diagnosed with status-post canal wall down tympanomastoid surgery of the left ear on February 2016 VA examination. The Board notes, however, the pertinent February 2016 VA examiner also indicated that there Veteran had no chronic ear infection of the right ear because there was no objective evidence of diagnosable disease or pathology. No competent medical evidence is otherwise of record which demonstrates a current disability of the right ear. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. In regard to the current bilateral hearing loss disability and left ear disorder, the Board notes the Veteran indicated at his October 2015 hearing that his chronic ear infections and hearing loss were due to the condition that resulted in his loss of sight. See Transcript p. 8. Service connection may be established for a disability that was caused or aggravated by an already service-connected disability. See 38 C.F.R. § 3.310. Nevertheless, as detailed above, the Board has determined that service connection is not warrant for his loss of sight claim. Thus, service connection cannot be established or considered on this basis. In any event, the February 2016 VA examiners expressed opinions against the Veteran's hearing loss and left ear disability being related to his eye condition; and no competent medical evidence is of record which supports such an etiological link. Regarding whether service connection is warranted for the current hearing loss and left ear disability as directly related to service, the Board notes that while the Veteran initially indicated in October 2015 that his hearing started to get worse while he was on active duty, he subsequently stated that his hearing loss and other ear problems started after service. He also indicated he did not receive treatment until years after service, approximately 18 years prior to the time of the October 2015 hearing; and could not recall when his ear infections started. See Transcript pp.3-5, 8-12. The Board further notes the Veteran's service treatment records contain no entries showing a diagnosis of or treatment for hearing loss and/or other ear problems to include infection(s). Granted, no audiological testing appears to have been conducted during service to include on the Veteran's October 1959 enlistment examination and December 1959 separation examination. As mentioned above, the whispered and spoken voice testing conducted on these examinations have been acknowledged by the February 2016 VA examiner as not being a "valid measure of hearing sensitivity." Nevertheless, the Veteran's ears were evaluated as normal on these examinations. Moreover, the first competent medical evidence of the claimed disabilities appears to be years after service; and the Veteran has acknowledged he did not receive treatment until such time. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). In addition, the February 2016 VA examiners provided opinions against the Veteran's current left ear disability and bilateral hearing loss being etiologically linked to service. The Board has already noted these examiners were familiar with the Veteran's medical history from review of the VA claims folder. The examiners also accurately noted pertinent aspects of that history with respect to the Veteran's ears and hearing loss in the examination reports. Further, the examiners' opinions were not expressed in speculative or equivocal language, and were supported by stated rationale. In pertinent part, for the left ear claim, the examiner noted that the Veteran served on active duty for approximately 3 months in 1959; his service treatment records showed no diagnosis or treatment for ear infections during service; that the Veteran noted a history of ear surgery in the 1990s, approximately 30 years after service; that review of the record was silent for chronic ear infections from 2001 to present; and the current examination showed no evidence of current ear infection. Stated another way, the examiner indicated that the Veteran's documented medical history, and current medical findings, were inconsistent with a chronic ear infections from the time of his active service. With respect to the hearing loss claim, the examiner noted that the Veteran's service treatment records showed inadequate audiometric testing at entrance and discharge, to include the aforementioned notation that the testing was "not a valid measure of hearing sensitivity." However, the examiner also indicated that the record did not document ear/hearing problems until years after service. Further, it was noted that the Veteran served approximately 3 months of service, and that he denied any hazardous noise exposure during military service. Although the Veteran reported his ear problems began during boot camp, it was noted he could not provide any specific details; and that the service treatment records were negative for any ear related complaints or issues during military service. While he was treated during service for tonsillitis, this was unrelated to missed hearing loss/middle ear pathology. The Veteran also reported a significant post-military hazardous noise exposure, the details of which were summarized in the examination report. Moreover, the examiner opined that the current sensorineural component of the Veteran's hearing loss was more likely due to his post-service noise exposure; and that the conductive component of the hearing loss was not related to military noise exposure and the service treatment records showed no evidence of any ear issues or complaints during military service. No competent medical evidence is of record which explicitly refutes the findings of the February 2016 VA examiners regarding the nature and etiology of the Veteran's hearing loss and left ear disability. In view of the foregoing, the Board finds the opinions expressed by the aforementioned February 2016 VA examiners to be adequate, persuasive, and entitled to significant probative value in the instant case. For these reasons, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a left ear disability and/or a bilateral hearing loss disability that was incurred in or otherwise the result of his active service. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application; and these claims must be denied. ORDER Service connection for loss of sight is denied. Service connection for chronic ear infection is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs