Citation Nr: 1804479	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  14-19 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for hypertension.

3. Entitlement to service connection for a bilateral eye condition.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and S. K.



ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel


INTRODUCTION

The Veteran, the appellant in this matter, served on active duty from May 1999 to March 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The Veteran and S. K., testified at a Travel Board hearing at the RO in Roanoke, Virginia, before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of the hearing is associated with the Veteran's electronic claims file. 

The issues of entitlement to service connection for hypertension and a bilateral eye disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran does not have a bilateral hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability are not met.  38 U.S.C. §§ 1101, 1112, 1113, 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

Finally, if there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3,309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means 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. Id. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends that he is entitled to service connection for his bilateral hearing loss disability as a result of noise exposure in service. In October 2017, the Veteran testified that he served as an Aero Space Ground Equipment Technician, and his DD-214 confirms his specialty in service. At the October 2017 hearing, the Veteran stated, "I was stationed with F15's and the Marines had the [inaudible] and they would go right by the shop where I worked and you couldn't always get hearing protection because it was literally 30 feet away." The Veteran further testified that he did not have hearing problems prior to service and that he noticed his hearing problems in service. At the October 2017 hearing, S. K., testified that she went to school with the Veteran and they dated when he was younger, and that now he has a lot of trouble hearing and has to make the TV very loud in order to hear it.

Despite the Veteran's asserted exposure to acoustic trauma in service, as will be explained further below, the Board finds that service connection for a bilateral hearing loss disability is not warranted because there is not a current bilateral hearing loss disability as defined by pertinent VA regulation.

In connection with the development of the Veteran's claim for service connection for a hearing loss disability, the Veteran was afforded an audiology examination in July 2017, which produced the following results for the bilateral ears:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
25
30
LEFT
20
15
25
30
35

The Veteran's Maryland CNC speech recognition score measured 96 percent in both ears, and the VA examiner noted that the use of speech discrimination score is appropriate for this Veteran. VA examiner found sensorineural hearing loss (in the frequency range of 300-4000 Hz) in both ears, with a notation that the Veteran "may not have hearing loss at a level that is not considered to be a disability for VA purposes." 

In accordance with 38 C.F.R. § 3.385, the Board does not find that the Veteran has a current bilateral hearing loss disability for VA compensation purposes. The July 2017 VA audiology examination does not indicate auditory thresholds of 40 decibels or greater for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz, or auditory thresholds for at least three of these frequencies to be 26 decibels or greater. Moreover, the Veteran's speech recognition scores measured above 94 percent in both ears and do not indicate a bilateral hearing loss disability under 38 C.F.R. § 3.385.

Therefore, the critical matter here is that the Veteran is not found to have a current bilateral hearing loss disability for VA compensation purposes. The Board finds the July 2017 VA examination to be reliable and persuasive. See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate). The VA medical examination report contains clear conclusions with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, the examination report is thorough in that it provides details on how the examination was given, indicates that the examiner reviewed the Veteran's claims, and supported his conclusion with data. Specifically, the examiner conducted audiometric testing with accurate and contemporaneous data, and concluded that the bilateral hearing loss does not meet the criteria for a disability under 38 C.F.R. § 3.385. 

The Board also notes that the record does not contain other audiometric evidence to indicate a current bilateral hearing loss disability. As such, the Board finds that the weight of the medical evidence does not indicate that the Veteran has a current bilateral hearing loss disability for VA purposes and as a result of service. Additionally, the Board notes that at the October 2017 Travel Board hearing, the Veteran testified that he felt that the July 2017 VA examination was adequate. Thus, affording the August 2015 VA examination report appropriate probative value, the Board finds that the Veteran does not have a current bilateral hearing loss disability under the law, and service connection for a bilateral hearing loss disability cannot be granted. Brammer, 3 Vet. App. at 223. Furthermore, as there is no current disability, service connection on a presumptive basis or based on continuity of symptomatology is also not warranted. See 38 C.F.R. §§ 3.307, 3.309; Brammer, 3 Vet. App. at 223; Walker, 708 F.3d at 1331.

Last, having carefully reviewed the entire claims file of record, the Board acknowledges the Veteran's statements of record as well as to the medical evidence of record. While lay statements are sufficient to describe what witnesses observe, such as hearing loss to the extent that one notices trouble hearing, lay statements are not competent to diagnose hearing loss disability or the extent of impairment as set forth in VA regulations. See e.g., Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). 

Thus, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.


REMAND

The Board remands the issues of entitlement to service connection for hypertension and a bilateral eye disability. For the reasons discussed below, the Board finds that additional development and adjudication is necessary.

I. Hypertension

The Veteran contends that he has hypertension as a result of his service, to include as a result of his service-connected major depressive disorder with anxiety disorder disability. See October 2017 hearing transcript. The Veteran asserts that his hypertension began at Fairchild in 2003 or 2004 and that he sought a counselor to put him on Ditropan and Zoloft to treat his anxiety, panic attacks, and depression. See id.

VA treatment records indicate elevated blood pressure readings without a diagnosis of hypertension. the Veteran has not been afforded a VA examination for his left heel condition. See VA treatment records from July 2012 to July 2017.

VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2) (2012), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. 

In this case, the Veteran has not been afforded a VA examination of his asserted hypertension. Here, the Veteran's VA treatment records note elevated blood pressure readings and the Veteran asserts hypertension that began in service and as a result of his service-connected acquired psychiatric disability. As there is evidence of a possible current disability, and a potential link between the Veteran's hypertension and his service-connected acquired psychiatric disability, examination is required to clarify the Veteran's current diagnosis and to obtain an opinion regarding the etiology of the Veteran's condition. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 79.

II. Bilateral Eye Disability

The Veteran asserts that he has a current eye disability as a result of his service. Specifically, at the October 2017 Travel Board hearing, the Veteran testified that he had an eye injury in service, which included metal debris in his eye. He stated that he went to the base hospital and they removed the metal debris. However, the Veteran states that, "[s]hortly after that my eye wouldn't focus quite right and I would say within a year I was wearing glasses." The Veteran asserts that he had excellent vision during his childhood and prior to entering the service, and that his right eye is worse than his left as a result of his in service injury. Service treatment records indicate treatment of his eye in April 2000, June 2002, and July 2003. 

VA treatment records report current vision acuity. The Veteran was afforded a VA general examination in April 2006, which noted decreased visual acuity.

Generally, a congenital disease or defect is not service connectable as a matter of express VA regulation. See 38 C.F.R. §§ 3.303 (c), 4.9. The only possible exception is if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOPGCPREC 82-90. VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). This General Counsel opinion concluded that a defect differed from a disease in that a defect is "more or less statutory in nature" while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at p. 2.

Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303 (c) , 4.9, 4.127. Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. In other words, in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, 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. Id. Service connection may be granted for hereditary diseases that either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990) published at 55 Fed. Reg. 43253 (1990) (a reissue of General Counsel Opinion 008-88 (September 27, 1988).

In this case, the Veteran asserts an injury in service and a worsening of his vision as a result. Therefore, the Board remands this matter to determine whether the Veteran's currently diagnosed bilateral eye disability is the result of his service, to include whether any refractory errors of the eyes was subjected to a superimposed disease or injury which created additional disability. 

Accordingly, the case is REMANDED for the following action:

1. Ensure that any outstanding and relevant treatment records, to include VA, private, and SSA records, are associated with the Veteran's electronic claims file. Specifically, ensure that all outstanding and ongoing VA treatment records from the Mountain Home Veteran's Hospital in Mountain Home, Tennessee, is of record. See October 2017 hearing transcript (testifying to his ongoing treatment for his asserted eye disability).

2. Thereafter, schedule the Veteran for a VA examination with a physician to determine the nature and etiology of his asserted hypertension, to include as secondary to his service-connected acquired psychiatric disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place.

After a review of the claims file, the examiner must respond to the following:

(a) Clarify whether the Veteran has a current diagnosis of hypertension. See VA treatment records from July 2012 to July 2017 (indicating elevated blood pressure readings without a diagnosis of hypertension).

(b) For any diagnosis of hypertension found in (a), is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed hypertension had its onset in service or is otherwise related to service? 

(b) For any diagnosis of hypertension found in (a), is it at least as likely as not that the Veteran's currently diagnosed hypertension was caused or aggravated (increased in severity) by the Veteran's service-connected acquired psychiatric disability, diagnosed as major depressive disorder with anxiety disorder? See October 2017 hearing transcript.

If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

A detailed rationale for the opinion must be provided. Review of the entire claims file is required.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. After completing directive (1), schedule the Veteran for a VA examination with a physician to determine the current nature and etiology of his asserted bilateral eye disabilities, to include any refractory errors. Make the claims file available to the examiner for review of the case. The examiner should review all records 
associated with the claims file and should note that this case review took place.

After a review of the claims file, the examiner must respond to the following:

(a) Clarify the Veteran's current bilateral eye disability(ies), to include any refractory errors.

(b) Indicate which, if any, diagnosed disability is considered to be a congenital disease or defect. 

Under VA law, a defect differs from a disease in that the former is considered "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Refractive error of the eyes, including myopia, presbyopia, and astigmatism, are considered congenital defects within the meaning of applicable legislation relating to service connection.

(c) If any eye disability is a congenital defect (to include refractory errors of the eyes-myopia, presbyopia, and astigmatism), was there any superimposed disease or injury in service, to include the Veteran's asserted metal debris in his eye during service, that resulted in additional eye disability? If so, identify such additional eye disability.

See Veterans treatment records and April 2006 general VA examination (noting decreased vision acuity).

(d) With respect to any diagnosed congenital disease, was such aggravated beyond the normal progress of the disease during or due to the Veteran's military service, to include the Veteran's asserted metal debris in his eye during service?

(e) Is there any eye disability that did not exist prior to service that is otherwise at least as likely as not (a 50% or greater probability) directly related to the Veteran's service?

The examiner's attention is directed to the Veteran's October 2017 testimony regarding his injury in service, namely metal debris in his eye with blurred vision as a result. The Veteran testified that his right eye is worse than his left eye. The examiner is also directed to review the Veteran's Service Treatment Records in addition to the Veteran's entire claims file.

The examiner is directed to discuss the right and left eyes separately as necessary.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it 


is as medically sound to find in favor of the proposition as against it.

A detailed rationale for the opinion must be provided. Review of the entire claims file is required.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

4. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and representative an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response.

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 2014).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs