Citation Nr: 18143010 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 17-31 935 DATE: October 17, 2018 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for myopic astigmatism is denied. Entitlement to service connection for an eye disorder, to include an eye infection, is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s right shoulder disorder is not related to his military service. 2. The Veteran’s diagnosed myopic astigmatic refractive error is a congenital defect that was not caused by, a result of, and was not subject to a superimposed disease during service. 3. The Veteran is not shown to have an eye disability throughout the pendency of the appeal. 4. The Veteran does not have hearing loss in his right ear for VA purposes. 5. The Veteran’s left ear hearing loss is due to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for myopic astigmatism have not been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for entitlement to service connection for an eye disability to include an eye infection have not been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 1979 rating decision issued by the Department of Veterans Affairs (VA). In February 1981, the Veteran provided testimony at a Board hearing. A transcript of that Board hearing has been associated with the claims file. Subsequently, no action was taken on the Veteran’s appeal after he attended the Board hearing on February 6, 1981. Therefore, the Board finds that the Veteran has continuously prosecuted this claim since the date his claim was received by VA in December 1978. In May 2018, the Veteran was notified that he had the opportunity to appear before the Board in June 2018. The Veteran failed to report to the hearing and did not provide good cause for his inability to attend the hearing. The duty to assist is not always a “one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Thus, the Board will not remand this case for an additional opportunity for a Board hearing and finds that VA fulfilled its obligation to assist the Veteran in the development of his claim and his claim will be decided based on the evidence of record. In an August 2017 Rating Decision, the Veteran was granted service connection for migraines, residual of a head injury. Thus, this issue is no longer before the Board. Service Connection The Veteran contends that his right shoulder condition, eye disabilities, and bilateral hearing loss are caused by his military service. In order to establish service connection for the claimed disability, 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). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right shoulder disorder As to a current diagnosis, the record reflects that the Veteran’s right shoulder disability has been diagnosed to be mild impingement syndrome. See January 2013 VA examination. As to the in-service incurrence, the record reflects that the Veteran had a right shoulder injury during a volleyball game while he was on active duty. See August 27, 1974. The Board also notes that the Veteran indicated that he had a painful or “trick” shoulder or elbow on his separation examination. See June 1978 separation examination. As to the Veteran’s lay statements, the Veteran testified that he hurt his shoulder during a volleyball game and since then he has cramps in his shoulder and it will fall out of place. See February 1981 Board Hearing Transcript. Turning to the medical evidence at hand, the Veteran attended a VA examination in 1979. The Veteran’s shoulder was x-rayed and the examiner stated that “films of the right shoulder show no evidence of fracture, arthritis, or other abnormality.” Lastly, the examiner stated that the Veteran had a normal right shoulder. See February 2, 1979 VA examination. In January 2013, the Veteran attended an additional examination. Following the examination, the examiner stated that it was less likely than not that the Veteran’s shoulder disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner then opined that the “Veteran was seen and treated in service. Orthopedic evaluation August 1977 with diagnosis of possible rotator cuff strain.” The examiner added that there was “no evidence of any dislocations of the shoulder. If in fact he had recurrent dislocations, he would have significant arthritic changes in the glenohumeral joint of the shoulder.” The examiner concluded by stating that “his minor arthritic changes in the a-c joint are age acquired.” In sum, the Board finds that entitlement to service connection for a right shoulder disability is not warranted. In reaching this conclusion, the Board has considered the Veteran’s lay statements and the available medical information. After a review of the record, the Board finds that the January 2013 VA examination, which demonstrates that the Veteran’s right should disability is not caused by or related to his military service, is the most probative evidence of record. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a right shoulder disability must be denied. 2. Entitlement to service connection for myopic astigmatism As to a current diagnosis, the Veteran was diagnosed with myopic astigmatism. See February 1979 VA examination. As to the Veteran’s lay statements, the Veteran testified that his eyes sometimes blur. See February 1981 Board Hearing Transcript. Turning to the medical evidence at hand, in February 1979, the Veteran attended a VA examination. At the examination, the Veteran reported that his eyes were sensitive to light. Following the examination, the examiner diagnosed the Veteran with myopic astigmatism. See February 1979 VA examination. In June 2013, the Veteran attended an additional examination. Following the examination, the examiner indicated that the Veteran did not have any eye conditions and the examiner indicated that the Veteran did not have a diagnosis for any eye disabilities. See June 2013 VA examination. In addition to the Veteran’s VA examinations, the Board has also reviewed the Veteran’s medical records. The Veteran’s VA treatment records show that the Veteran does not have blurred vision, eye pain, nor is he visually impaired. See August 4, 2016, and August 24, 2016, VA Progress Notes The Board notes that certain disabilities or conditions are not recognized by the VA to be eligible for service connection. Refractive error of the eyes is not considered a disability for VA purposes. Refractive error of the eyes, which include myopias astigmatism, is considered to be a congenital defect and service connection cannot be established, absent evidence of aggravation by superimposed disease or injury. 38 C.F.R. §§3.303 (c), 4.9 (2017). The Veteran’s blurry vision, diagnosed as myopic astigmatism cannot be service connected absent evidence of aggravation by superimposed pathology, which the evidence does not demonstrate existed during or after the Veteran’s active service. In sum, the Board finds that service connection for myopic astigmatism is not warranted. After a review of the record, the evidence does not show that a disability was superimposed on the Veteran’s myopic astigmatic refractive error, during service. In fact, the record shows that the June 2013 VA examiner found that the Veteran did not have a diagnosis for any eye disabilities. The Board acknowledges and is sympathetic to the Veteran’s assertions of symptoms of blurry vision. However, those symptoms and manifestations are a condition for which service connection is unavailable. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of service connection for service connection for myopic astigmatism. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a myopic astigmatism must be denied. 3. Entitlement to service connection for an eye disability to include an eye infection As to the Veteran’s lay statements, the Veteran testified that he had an eye infection in the service and then he experienced an eye infection after he separated from the service. The Veteran also stated that he attributed his eye infections to working around dirty clothes when he was assigned to the gym on base. See February 1981 Board Hearing Transcript. In February 1979, the Veteran attended a VA examination for this issue. Following the examination, the examiner noted that there was no eye infection present. See February 1979 VA examination. In June 2013, the Veteran attended an additional examination. Following the examination, the examiner indicated that the Veteran did not have any eye conditions and the examiner indicated that the Veteran did not have a diagnosis for any eye disabilities. See June 2013 VA examination. In addition to the Veteran’s VA examinations, the Board has also reviewed the Veteran’s medical records. The Veteran’s VA treatment records show that the Veteran does not have blurred vision, eye pain, nor is he visually impaired. See August 4, 2016, and August 24, 2016, VA Progress Notes In sum, the Board finds that service connection for this disability is not warranted. The Board finds that the most probative evidence of record demonstrates that the Veteran does not have a diagnosis of an eye disability or a disability related to an eye infection at any time during the pendency of the appeal. In reaching this conclusion, the Board has considered the Veteran’s lay statements, his full medical history, and his VA examinations. Accordingly, since the most probative evidence of record demonstrates that the Veteran does not have a diagnosis of a disability at any time during the pendency of the claim on appeal, the Board must conclude that entitlement to service connection for an eye disability including any residuals from an eye infection must be denied because the preponderance of the evidence is against the claim. 4. Entitlement to service connection for bilateral hearing loss In addition to the previously discussed principles regarding service connection, the Board notes that service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. As to a current diagnosis, the Veteran has been diagnosed with bilateral sensorineural hearing loss. See July 2017 VA examination. As to the in-service incurrence, the Board notes that the Veteran served as an armor crewman when he was on active duty in the United States Army. The record reflects that the Veteran testified that his abnormal hearing was due to working on tanks and firing the tank’s weapons. As to the Veteran’s lay statements, the Veteran testified shortly after discharge from service that “sometimes his hearing is normal and sometimes it ain’t.” See February 1981 Board Hearing Transcript. Turning to the medical evidence at hand, the Veteran attended a VA examination for this issue in February 1979. At the examination, the Veteran reported that “his hearing is a little bad.” Following the examination, the examiner simply noted that there was no hearing loss noted. See February 1979 VA examination. The Board is unable to place any probative weight on this opinion because the examination report did not include any test results and the examiner did not provide a thorough and well-reasoned opinion as to the nature and etiology of the Veteran’s hearing loss. See Davidson, supra. In July 2017, the Veteran attended an additional VA examination for this issue and at the examination, the Veteran reported that he had a gradual hearing loss that began in the 1980s. The Veteran also reported that he has difficulty understanding the television at a comfortable volume and further stated that his wife complains that “he can’t hear well.” Following the examination, the examiner reported that the Veteran had mild to moderate hearing loss bilaterally, but found that the Veteran’s hearing loss was less likely than not that due to his military service. The examiner based his opinion on the fact that the Veteran’s separation examination revealed hearing that was within normal limits. In addition, the Board notes that the results of the examination indicated that the Veteran’s left ear had hearing loss for VA purposes, but the Veteran’s right ear did not meet the criteria for hearing loss for VA purposes. See July 2017 VA examination. The Board is unable to place more that limited probative weight on this opinion because the examiner did not provide a thorough and well-reasoned analysis regarding the etiology of the Veteran’s hearing loss and simply relied on the fact that the Veteran’s separation examination showed hearing within normal limits. See Davidson, supra. The Board notes that throughout the course of the appeal, the Veteran has credibly and consistently noted a reduction in his hearing since service and as such, his hearing loss may be presumed to be related to service based on continuity of symptomatology. As was noted previously, as diseases of the nervous system, the Board finds that the Veteran’s hearing loss is entitled to the application of this provision. In sum, the Board finds that service connection for right ear hearing loss is not warranted. Although the Veteran has experienced decreased hearing acuity after his service due to acoustic trauma, the audiological findings of record do not support a finding that the Veteran has right ear hearing loss for VA purposes. Specifically, the Board notes that the July 2017 VA examination showed that the Veteran’s speech recognition score was 100 percent, the Veteran did not have a score of 40 decibels or greater in any of the frequencies from 500 to 4000 Hertz, and the Veteran did not have at least three frequencies of 26 decibels or greater in the frequencies from 500 to 4000 Hertz. Thus, for the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for right ear hearing loss must be denied. On the other hand, the Board finds that service connection for left ear hearing loss is warranted. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for left ear hearing loss is at least in equipoise. For the above stated reasons and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for left ear hearing loss is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel