Citation Nr: 18143084 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 13-09 174A DATE: October 18, 2018 ORDER Service connection for a right wrist disorder, to include arthritis, is denied. Service connection for an unhealed left eye injury is denied. Service connection for an unhealed right eye injury is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for broken jaw residuals is denied. Service connection for loss of teeth is denied. A disability rating of more than 80 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right wrist disorder, to include arthritis, was not caused by any in-service injury, disease, disorder, or event; has not existed continuously since service; and did not manifest to a compensable degree within one year of service separation. 2. The Veteran does not have an unhealed left eye injury that is related to or a result of active duty service. 3. The Veteran does not have an unhealed right eye injury that is related to or a result of active duty service. 4. The Veteran’s chronic obstructive pulmonary disease (COPD) is not related to or a result of active duty service. 5. The Veteran does not have broken jaw residuals that are related to or a result of active duty service. 6. The Veteran’s loss of teeth is not related to or a result of active duty service. 7. The Veteran’s hearing loss does not manifest a severity supporting a finding of disability rating greater than 80 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disorder, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 2. The criteria for service connection for a left unhealed eye injury have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 3. The criteria for service connection for a right unhealed eye injury have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 4. The criteria for service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 5. The criteria for service connection for broken jaw residuals have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 6. The criteria for service connection for loss of teeth have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 7. The criteria for a disability rating higher than 80 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.14, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1970 to June 1972, and from March 1985 to June 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2016, the Veteran testified as a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In August 2016, the Board remanded the Veteran’s appeal for further development of the record. The matter is ready for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Regarding the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). As an initial matter, the Veteran has reported that during active duty service he was struck (a) by a hatch and (b) by a loose turret while aboard the USS Nashville, and that these incidents caused his right wrist disorder, right and left eye injury, broken jaw residuals, and loss of teeth. A complete review of the Veteran’s service treatment records and military personnel file was conducted. Beyond the Veteran’s own statements, to include August 2010 VA medical records which note that the Veteran reported being struck by a hatch door and was temporarily knocked unconscious, there is no other evidence to indicate that either of these incidences occurred. The Board has considered the Veteran’s statements, but the Board finds these statements not credible as they are not consistent with contemporaneous evidence. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant’s statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). The Board may draw inferences against the claimant from the absence of documentation when there is logical reason to suppose that the event or condition would have been recorded. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. See AZ v. Shinseki, 731 F.3d 1301, 1315 (Fed. Cir. 2013). Here, the Board finds that both alleged incidences would have been recorded, especially given the significant injuries the Veteran reported. Notably, the Veteran repeatedly reported that he was in good health and had not sustained any head injuries. See Report of Medical History from March 1970, June 1972, August 1984, March 1985, July 1986, and January 1987. As there is no record of either incident and the Veteran did not report any such head injury during active duty service during an examination, the Board finds that neither incident occurred. 1. A right wrist disorder The Veteran contends that during active duty service, while aboard the USS Nashville, a hatch came off its hinges and in an attempt to catch the hatch, his right wrist was injured. He reported that he was diagnosed with a right wrist sprain in 1982 because of this incident. The Veteran has a current diagnosis of right wrist degenerative arthritis. Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the evidence does not show that arthritis manifested within one year of separation from active duty service. Moreover, as is explained in detail below, there is no competent or credible lay or medical evidence of manifestations of symptoms consistent with arthritis until 2010, approximately 25 years after discharge from service. As such, service connection is not warranted on a presumptive basis. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of any right wrist disorder or joint pain. In September and October 2010, the Veteran was treated for right wrist carpal tunnel at the Bay Pines VA. The Veteran reported right hand pain and numbness that began approximately 25 years prior. In October 2010, the Veteran underwent a VA examination when he reported right wrist pain that began in 1971. The examiner concluded that the Veteran’s right wrist disorder was not related to the Veteran’s active duty service, citing that the Veteran’s service treatment records do not contain any right wrist entries, his separation examination was negative for joint abnormalities, and 2005 VA medical records were negative for joint abnormalities. In October 2017, a VA examiner noted the Veteran’s 2010 diagnosis of right wrist degenerative arthritis. However, the examiner stated that there was no evidence of a right wrist condition during active duty service. The examiner opined that the Veteran’s current right wrist disorder was less likely than not incurred in or caused by active duty service. Although the Veteran has a current right wrist disorder, the evidence does not show in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The evidence is silent for any incident in which the Veteran sustained a right wrist injury during active duty service nor is there any credible evidence of the Veteran being struck by a hatch door. Both VA examiners concluded that the Veteran’s right wrist disorder was less likely than not incurred in or caused by active duty service. Thus, the claim for service connection for a right wrist disorder must be denied. 2. An unhealed left eye injury The Veteran contends that during active duty service he was struck by a hatch door, which caused his eye to be dislodged from the socket and hanging by the optical nerve. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of any left eye injury, to include any event or incident that resulted in his left eye being dislodged from the socket. The Veteran currently has age-related cataracts which were diagnosed in approximately 2006 and bilateral ocular hypertension which was diagnosed in July 2014. No other eye injury (either healed or unhealed) has been diagnosed. December 2005 VA medical records showed that the Veteran reported a left eye cataract extraction, but no other left eye injuries or complaints were noted. May 2013 scans did not show evidence of acute osseous or a soft tissue injury and the orbital rims, walls, and floors were intact. In November 2017, a VA examiner concluded that there was no evidence of a left eye injury, or sequelae thereof, in the Veteran’s claims file nor on examination. In June 2018, a VA examiner concluded that there was no evidence of a left eye injury. The evidence does not show an unhealed left eye injury. Additionally, although the Veteran has age-related cataracts and bilateral ocular hypertension, the evidence does not show in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The evidence is silent for any incident in which the Veteran sustained a left eye injury nor is there any credible evidence of the Veteran being struck by a hatch door. Thus, the claim for service connection for an unhealed left eye injury must be denied. 3. An unhealed right eye injury The Veteran contends that he sustained a right eye injury during active duty service when he was struck by a turret that swung loose. He reported having stiches to his eyelid; he did not report treatment of his eye. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of any right eye injury, to include stiches to his right eyelid. December 2005 VA medical records demonstrated that the Veteran requested to see an ophthalmologist for a right eye cataract, but he did not report any previous eye injury or residuals thereof. May 2013 scans did not show evidence of acute osseous or a soft tissue injury and the orbital rims, walls, and floors were intact. In November 2017, a VA examiner concluded that there was no evidence of a right eye injury, or sequelae thereof, in the Veteran’s claims file nor on examination. In June 2018, a VA examiner concluded that there was no evidence of a right eye injury. The evidence does not show an unhealed right eye injury. Additionally, although the Veteran has age-related cataracts and bilateral ocular hypertension, the evidence does not show in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The evidence is silent for any incident in which the Veteran sustained a right eye injury nor is there any credible evidence that the Veteran was hit by a loose turret. Thus, the claim for service connection for an unhealed right eye injury must be denied. 4. Chronic obstructive pulmonary disease (COPD) The Veteran contends that his COPD began in January 1973 and that he was treated at Camp Pendleton, California. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of COPD, nor any other lung disease. December 2005 VA treatment records indicated that the Veteran was a then-current tobacco user. His lungs were clear to auscultation with all fields without rales, rhonchi, or wheezing. There was no use of accessory muscles of inspiration. March 2006 VA medical records indicated that the Veteran was scheduled to attend a smoking cessation program. From at least June 2010 to January 2011, VA medical records continue to indicate that the Veteran was smoking. The Veteran expressed interest in medication to assist with tobacco cessation. A January 2011 VA medical records notation indicated that the Veteran smoked less than one pack of cigarettes per day. In January 2016, the Veteran reported that he quit smoking in 2012. In October 2010, the Veteran underwent a VA examination when he reported that he first experienced shortness of breath in 1974. The examiner concluded that the Veteran’s COPD was not related to events that occurred during active duty service, citing that the Veteran was not diagnosed with COPD during active service and that 2005 VA medical records demonstrated that the Veteran was negative for cough or wheezing. The examiner opined that the Veteran’s COPD was due to smoking. In May 2016, the Veteran testified that he was not a cigarette smoker, but did occasionally smoke cigars. In October 2017, the Veteran underwent a VA examination for his COPD diagnosis. The examiner noted that the Veteran reported that he stopped smoking approximately four to five years prior. The examiner opined that the Veteran’s COPD was less likely than not incurred in or caused by active duty service. The examiner found no evidence of COPD in the Veteran’s service treatment records and concluded that the Veteran’s COPD was likely secondary to smoking. Although the Veteran currently has COPD, the evidence does not show in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. On the contrary, the Veteran’s COPD has been attributed to smoking. Thus, the claim for service connection for COPD must be denied. 5. Broken jaw residuals The Veteran contends that he sustained a fractured jaw during active duty service after being struck by a hatch door. He reported that since the incident, he experiences pain when opening and closing his mouth. The Veteran’s service treatment records are silent for any complaints, treatment, or imaging of a fractured or painful jaw. The Veteran has current jaw pain, with evidence of crepitus or clicking of the joints or soft tissue of the left and right temporomandibular joints (TMJ). See October 2017 Temporomandibular VA Examination. December 2005 VA medical records showed that the Veteran reported no complaints of TMJ. In May 2016, the Veteran testified that after being struck by the hatch door, his jaw was broken, his eye was left hanging out of the socket, and that he was bandaged up. He did not report any further medical treatment for the injury. The evidence is silent as to this incident, to include any treatment for a fractured jaw or for his eye. In October 2017, a VA examiner indicated that from June 1972 to January 1987, service treatment records are silent for reports of jaw pain or complaints of dental or jaw problems. The examiner noted that a December 2013 medical examination is silent for complaints of arthralgia, myalgia, trauma, joint effusion, joint or bone deformity, paresis, or decreased range of motion of the Veteran’s joints, although there is a notation of the Veteran’s report of being struck by a hatch door. The examiner reported that neither the Veteran’s active duty service records nor his Marine Corps Reserve records contained evidence of a fractured jaw or fractured teeth. An April 2013 facial bone scan did not show an old or acute fracture, and April 2013 imaging of the mandible did not demonstrate an old fracture. May 2013 scans did not show evidence of acute osseous or a soft tissue injury and the mandible was shown to be intact. In November 2017, a VA examiner found no evidence of a fractured jaw in the Veteran’s service treatment or post separation imaging records. The examiner further indicated that post separation medical records, to include dental records, are absent for any complaints of a remote fractured jaw for several years and multiple visits following active duty service. Although the Veteran is currently diagnosed with jaw pain with evidence of crepitus or clicking of the joints or soft tissue of the bilateral TMJ, the evidence does not show an in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The evidence is silent for any incident in which the Veteran sustained a fractured jaw nor is there any credible evidence of the Veteran being struck by a hatch door. Thus, the claim for service connection for residuals of a broken jaw must be denied. 6. Loss of teeth The Veteran contends that when he was struck by a hatch door, he sustained a fractured jaw and cracked teeth. Subsequently, the damaged teeth were removed. The Veteran’s service treatment records, to include his dental records, are silent as to any complaints, treatment, or imaging of a fractured jaw or damaged teeth. December 2005 VA medical records showed that the Veteran reported no complaints of dental problems. After reviewing the claims file, to include April 2013, May 2013, and October 2017 imagining results, an October 2017 VA examiner concluded that the Veteran did not have a dental or oral condition beyond his current edentulous (toothless) state. The examiner found no evidence of a fractured jaw, fractured teeth, or residuals or a broken jaw during active duty service. The examiner noted that upon entering the active duty service, the Veteran was already missing teeth numbers 1, 16, 17, 30 and 32. In 1985, the Veteran was also missing teeth numbers 18, 19, and 31, although no cause for the extractions were noted. In September 2012, teeth numbers 5, 8, 9, and 11 and roots numbers 12 and 13 were removed at the Bay Pines VA, leaving the Veteran edentulous. The VA examiner opined that the Veteran’s edentulous state was less likely than not incurred in or caused by the claimed injury, event, or illness, citing that the there is no evidence in the service treatment records of treatment for a fractured jaw nor fractured teeth. Although the Veteran is currently edentulous, the evidence does not show an in-service incurrence or aggravation of a disease or injury, nor does it show a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The evidence is silent for any incident in which the Veteran sustained fractured teeth nor is there any credible evidence of the Veteran being struck by a hatch door. Although there is evidence that the Veteran lost three teeth between entering active duty service and 1985, there is no credible evidence that shows that this occurred during active duty service. As the VA examiner opined that the Veteran’s edentulous state was less likely than not incurred in or caused by the claimed injury, event, or illness, and the evidence does not contain a positive nexus opinion, the claim for service connection for loss of teeth must be denied. 7. Bilateral hearing loss The Veteran is currently in receipt of an 80 percent disability rating for bilateral hearing loss. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, DC 6100. Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). Hearing impairment evaluations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under DC 6100, Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86 regarding exceptional patterns of hearing impairment. The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85 (e). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran underwent audiological testing in October 2016. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 60 85 90 LEFT 55 40 55 90 100 Speech audiometry revealed speech recognition ability of 32 percent in the left ear and 40 percent in the right ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 69 decibels for the right ear, and 71 decibels for the left ear. These findings show bilateral hearing loss for VA rating purposes. When applying 38 C.F.R. 4.87 at Table VI to the Veteran’s audiological examinations of record, the results yield a numerical designation of IX for the right ear (between 66 and 73 average puretone decibel hearing loss, with between 36 and 42 percent speech discrimination), and a numerical designation of XI for the left ear (between 66 and 73 average puretone decibel hearing loss, with between 0 and 32 percent speech discrimination). Entering the category designations for each ear into Table VII results in an 80 percent disability evaluation. When the left ear, which displays an “exceptional” pattern of hearing loss disability, is applied via Table VIa, a numerical designation of VI is returned (between 70 and 76 puretone threshold). When the right ear, which displays an “exceptional” pattern of hearing loss disability, is applied via Table VIa, a numerical designation of V is returned (between 63 and 69 puretone threshold). When applying this with the numerical designation of I for the right ear obtained in Table VI (non-exceptional hearing loss pattern) into Table VII, a 20 percent disability rating is obtained. Thus, the Veteran has shown entitlement to a disability rating of higher than 80 percent for his hearing loss on a schedular basis. The Board must also consider the functional impacts associated with the loss of hearing acuity. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran has reported that his hearing loss makes communicating difficult and that he must increase the volume when watching television. The level of severity is not so unique as to be outside of what is contemplated by the assignment of a schedular rating. The Veteran can continue with his daily activities with minimal interference outside of frustrations in communicating. As this is the case, schedular hearing criteria accurately contemplate the severity of the hearing loss disability picture, and a disability rating higher than 80 percent is not warranted. (Continued on the next page)   The preponderance of the evidence is against finding a disability rating higher than 80 percent for the Veteran’s hearing loss at any point during the appellate period. All VA medical examination audiometric results are probative and valid for rating purposes. The results include both pure tone thresholds and speech discrimination testing using the Maryland CNC test. The results of the tests reflect the severity of the Veteran’s bilateral hearing loss at the time. The appeal as to an increased rating for bilateral hearing loss is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel