Citation Nr: 1802832 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-38 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a head injury, claimed as right eye vision loss. 2. Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to February 1955. This matter comes to the Board of Veterans Appeals (Board) on appeal from a December 2013 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017, the Veteran testified at a Board video conference hearing. A transcript of the hearing is of record. At the hearing the Veteran testified that........ Accordingly, the issue of entitlement to service connection for residuals of a head injury has been recharacterized to include right eye vision loss. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Residuals of a head injury, claimed as right eye vision loss, is not manifest in service and is not related to any event or incident of active service. 2. Bilateral hearing loss did not manifest in service or within one year thereafter, and is not related to any event or incident of active service. CONCLUSIONS OF LAW 1. Residuals of a head injury, claimed as right eye vision loss, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Bilateral hearing loss is not shown to have been incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS II. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). For the showing of 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. Hearing loss as an organic disease of the nervous system is considered to be chronic diseases for VA compensation purposes; if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim with respect to active duty service. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after service 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). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Facts The Veteran's service treatment records appear incomplete and may have been affected by a fire at the National Personnel Records Center in 1973. See NPRC letter dated in October 2012 letter. The service treatment records that are available do not show a head injury or complaints or treatment for hearing loss or vision problems. They include the Veteran's February 1955 separation examination report showing that he had a normal general clinical evaluation of the eyes and ears. This report also shows that his distant vision in the right and left eyes was 20/20 and that his hearing acuity was 15/15 for both the whispered and spoken voice. The earliest post service medical evidence on file consists of VA outpatient treatment records dated in 2012. These records show that the Veteran had not been seen by a provider in nine years. According to a November 2012 treatment record, the Veteran was being seen for new patient orientation. A December 2012 record shows that he presented to establish primary care. He reported at that time being hard of hearing and requested a hearing evaluation. He also reported that he had been told that he had cataracts. In terms of his medical treatment, the Veteran testified in October 2017 that he has received all of his treatment from VA medical facilities. A January 2013 VA outpatient record notes the following: "Trauma: 6-7 years OD - unknown, [veteran] reports decrease vision post trauma." A November 2013 VA audiological examination report contains the Veteran's report of significant occupational noise exposure. His employment history included painting and carpentry work with no hearing protection. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 35 40 45 LEFT 105+ 105+ 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 0 percent in the left ear. The examiner diagnosed the Veteran as having sensorineural hearing loss in each ear. When asked to provide a nexus opinion, the examiner reported that based on his review of the Veteran's claims file, review of his service and medical history, clinical expertise, review of the related literature, and present degree of hearing loss, he was unable to render such an opinion without resorting to speculation. He explained that Veteran's service treatment records were lost to fire so there is no record of his hearing status in the military. He noted that the Veteran reported significant occupational noise exposure and opined that it is "likely/possible" that aging, occupational and recreational noise exposure and general health have contributed to his hearing loss and/or tinnitus. He went on to report that it would thus be speculative to allocate a degree of his current hearing loss to each of the mentioned military versus non- military etiologies. VA eye evaluations in March 2017 in May 2017 note that the Veteran had right eye vision loss. They also note that he was an ex-smoker. Following the evaluations, he was assessed as having ocular pain and pupillary block glaucoma in the right eye. He was additionally noted to have dense cataracts in the right eye as well as blindness in the right eye. He was further noted to have ocular hypertension in the right eye. His reported history includes right eye trauma in 1953 causing visual loss. The examiner reported that the Veteran's complaint of eye pain was most likely due to dry eye syndrome. Discussion Missing Service Treatment Records It should be noted at the outset that some of the Veteran's service treatment records appear missing and are presumed destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri, in 1973. When service department records are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit-of-the-doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In the instant case, the Board finds that VA has satisfied its heightened duty to assist by making exhaustive efforts to obtain the Veteran's service treatment records as detailed in a letter to the Veteran dated in March 2017. See 38 U.S.C.§ 5103A; 38 C.F.R. § 3.159 (c). He has not identified any other records or evidence he wished to submit or have VA obtain. Residuals of Head Injury The Veteran asserts that he sustained a head injury in service in 1954 that resulted in loss of consciousness. Regarding the nature of the injury, he asserted at a VA audiological hearing in January 2013 that he suffered a "blow to the head" when the military vehicle that he was riding in rolled over. He subsequently testified at a Board hearing in October 2017 that he lost consciousness after being hit in the head with an object, but he did not know what the object was. He also testified that he was treated for this injury in service at a dispensary, but that he was not hospitalized. He asserts that this injury caused him to lose vision in his right eye. There are inconsistencies in the record as outlined above regarding the nature of the head injury in addition to whether there are any residuals of such an injury. In this regard, the Veteran's February 1955 separation examination report shows that he a normal general clinical examination of the eyes and he had normal distant vision of 20/20 in each eye. Moreover, a January 2013 VA outpatient record indicates that the right eye trauma occurred six to seven years earlier, thus placing the trauma many years after service. These inconsistencies diminish the credibility of the Veteran's assertions both as to the nature of the injury and to any residuals thereof. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Moreover, despite the Veteran's assertion of having right eye vision loss since service, the earliest medical documentation of right eye vision loss is not until January 2013, approximately 60 years after service. Indeed, a December 2012 VA outpatient record notes that the Veteran had not seen a provider in 9 years. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000) (the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that may weigh against a claim for service connection.). In light of the inconsistencies above and diminished credibility of the Veteran's assertions, service connection under the provisions of 38 C.F.R. § 3.303 (a) and (b) is not warranted. As for service connection under 38 C.F.R. § 3.303 (d), there is no medical nexus opinion evidence of record. That is, the Veteran has not submitted any evidence linking his postservice diagnosis of right eye vision loss to service. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) ("It is the veteran's 'general evidentiary burden' to establish all elements of his claim"). Inasmuch as the weight of evidence is against an essential element of this claim, i.e., (3) competent evidence of a causal relationship ("nexus") between residuals of a head injury, claimed as right eye vision loss, and a disease or injury incurred or aggravated during service, the claim must be denied. Holton, 557 F.3d at 1366. 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 this claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). Bilateral Hearing Loss The Veteran testified that his hearing loss is due to exposure to loud noise from artillery and big guns in service and it has been present ever since service and has worsened over time. He denied noise exposure from any other source post service. His personnel record (DD Form 214) shows that he was assigned to an anti-aircraft artillery battalion. In terms of his claimed noise exposure from artillery and big guns, the Board concedes such exposure. The Board also finds that the Veteran meets VA's definition of having a bilateral hearing loss disability under 38 C.F.R. § 3.385. See May 2017 VA outpatient audiological report. Thus, the issue in this appeal comes down to the nexus element. That is, whether the evidence establishes a link between the Veteran's post service diagnosis of bilateral hearing loss and his inservice noise exposure. See Holton, supra. As noted, the Veteran's service treatment records are not complete. Nonetheless, he was found to have normal hearing of 15/15 for the spoken and whispered voice at his service separation examination in February 1955, and he did not seek treatment for hearing loss until many years after service, approximately 60 years after service. In this regard, the Veteran reported at VA outpatient clinic visit in December 2012 that he was hard of hearing and he requested hearing evaluation. In light of these facts, service connection under the provisions of 38 C.F.R. § 3.303 (a) and (b) is not warranted. Moreover, service connection under the provisions of 38 U.S.C.A. § 1101 and 38 C.F.R. §§ 3.307, 3.309 is not warranted since a hearing loss disability is not shown to have become manifest within one year of service. As far as entitlement to service connection under the provisions of 38 C.F.R. § 3.303 (d), there is no medical nexus opinion evidence of record. That is, the Veteran has not submitted any medical evidence linking his postservice diagnosis of bilateral hearing loss disability to service. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) ("It is the veteran's 'general evidentiary burden' to establish all elements of his claim"). As outlined above, the only medical opinion addressing the nexus element of this claim is a VA audiological examiner in May 2017. However, this examiner concluded that he was unable to render such an opinion without resorting to speculation. He came to this conclusion based on his review of the Veteran's claims file, review of the Veteran's service and medical history, his clinical expertise review of the related literature, and the Veteran's present degree of hearing loss. He also noted that the Veteran's service treatment records were lost to fire so there is no record of his hearing status in the military. He did not comment on the Veteran's normal hearing acuity of 15/15 for the whispered and spoken voice at his separation examination in February 1955 which is evidence unfavorable to the Veteran's claim. The Board has considered the statements of the Veteran regarding having hearing loss ever since service. As discussed above, the Veteran is certainly competent to report as to the observable symptoms he experiences. However, his assertions of having hearing loss since service is inconsistent with the audiological findings at his service separation in February 1955 showing normal hearing of 15/15 for the whispered and spoken voice and no notations of hearing difficulty. Moreover, the fact that the Veteran waited approximately 60 years to seek medical attention for his service loss warrants consideration. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000) (the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that may weigh against a claim for service connection.). Additionally, the Veteran has not identified a medical professional that has related such a disorder to his service-connected disability. Inasmuch as the weight of evidence is against an essential element of this claim, i.e., (3) competent evidence of a causal relationship ("nexus") between a bilateral hearing loss disability, and a disease or injury incurred or aggravated during service, the claim must be denied. Holton, 557 F.3d at 1366. 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 this claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Service connection for residuals of a head injury, claimed as right eye vision loss, is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs