Citation Nr: 18144476 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-26 409 DATE: October 24, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for left eye corneal abrasion with blurred vision (“eye condition”) is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for migraine headaches is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a sleep disorder is reopened. To that extent only, the appeal is granted. Entitlement to service connection for a left eye condition is denied. Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A November 1995 rating decision denied service connection for an eye condition. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. The evidence received subsequent to the November 1995 final denial of the claim for service connection for an eye condition is new, and is also material because it raises a reasonable possibility of substantiating the claim. 3. A May 1999 rating decision denied service connection for headaches. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 4. The evidence received subsequent to the May 1999 final denial of the claim for service connection for headaches is new, and is also material because it raises a reasonable possibility of substantiating the claim. 5. A November 1995 rating decision denied service connection for a sleep disorder. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 6. The evidence received subsequent to the November 1995 final denial of the claim for service connection for a sleep disorder is new, and is also material because it raises a reasonable possibility of substantiating the claim. 7. The evidence of record indicates that the Veteran does not have a left eye condition that was incurred in or otherwise related to his period of active service. 8. The Veteran’s migraine headaches did not manifest as a result of active military service. 9. The Veteran’s obstructive sleep apnea did not manifest during or as a result of active military service. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria to reopen the claim for service connection for a left eye condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received, the criteria to reopen the claim for service connection for migraine headaches have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received, the criteria to reopen the claim for service connection for a sleep disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a left eye condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1971 to March 1975 and August 1975 to November 1994. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, 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”--the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 1. Left Eye Condition The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for a left eye condition is reopened. The Veteran contends that his left eye condition was caused by his active military service. Service treatment records show the Veteran was treated for a left eye corneal abrasion in January 1992. The Veteran was also treated for conjunctivitis in service. During an August 1994 retirement examination, the Veteran reported eye trouble and blurred vision, which the clinician noted was an ongoing problem with no treatment sought. Post-service, the Veteran received a VA examination in January 2016. The examiner noted that there was no indication of any current residuals in the left eye from the Veteran’s in-service corneal abrasion and conjunctivitis. While the Veteran was found to be diagnosed with nuclear sclerotic cataracts in the right eye, the examiner further opined that there was no eye condition in either eye that was at least as likely as not related to the claimed in-service injury, noting that corneal abrasions such as the Veteran’s documented in-service injury, were not a risk factor for cataract formation. The Board acknowledges that the January 2016 examiner also found that the Veteran had congenital/developmental refractive error. However, refractive error of the eye is not a disease or injury for VA purposes. See 38 C.F.R. § 3.303 (c) (2017). Refractive error of the eye is recognized by applicable law as a developmental defect, and is not a disease or injury for which VA compensation benefits (i.e., entitlement to service connection) may be awarded. See 38 C.F.R. §§ 3.303 (c), 4.9 (2017). As the Veteran does not have a diagnosis of any residuals of the in-service left corneal abrasion or conjunctivitis, there is no current disability and the first element of service connection has not been met. Therefore, service connection must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Migraine Headaches The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for migraines is reopened. The Veteran contends that his current migraine headaches originated during active military service. Service treatment records show the Veteran complained of weekly headaches with increased frequency in August 1985. The assessment was headache, rule out migraine. In August 1989, the Veteran was treated for sore throat and headache associated with cold symptoms. During an August 1994 retirement examination, the Veteran denied any frequent or severe headaches. Post-service, VA treatment records show the Veteran was diagnosed with migraine headaches in June 1998. He stated that he had experienced intermittent headaches since 1991, with some nausea, photophobia, and dizziness. The Veteran received a VA examination in August 2013, and the examiner opined that the Veteran’s migraine headaches were less likely than not caused by his military service. The examiner explained that although the Veteran was treated for a migraine in service, it was only one time, almost 30 years prior to the examination. As such, the examiner opined that due to the time lapse, there was no evidence of causality between his current migraine headaches and the one-time in-service treatment. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s migraines are less likely than not related to his period of active service. Although the Veteran contends that he has had migraines since service, there is no evidence showing in-service treatment for this condition after August 1985. The Veteran was treated for a headache in 1985 and the diagnosis was rule out migraine, but on separation in 1994, there was no indication of any frequent or recurring headaches. In fact, the Veteran was not diagnosed with migraines until June 1998, 13 years after the initial in-service headache treatment. The Board acknowledges the Veteran’s assertions that his migraines are related to active duty service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Veteran is competent to describe his symptoms, without medical training, he has not demonstrated the competency to opine on matters requiring medical expertise, such as the etiology or natural progression of migraine headaches. See Jandreau, 492 F.3d at 1376. As such, the Board assigns little probative weight to the Veteran’s assertions that his migraines are related to his military service. The Board does not find that the lay statements of headaches since service constitute probative evidence of a nexus between the Veteran’s military service and the currently diagnosed migraines. There is no evidence of record to demonstrate a probative medical link between the Veteran’s migraine headaches and his time in service. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Sleep Disorder The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for a sleep disorder is reopened. The Veteran contends that his current sleep apnea was caused by his active military service. Service treatment records are silent for any complaint or diagnosis of a sleep disorder. During an August 1994 retirement examination, the Veteran denied any frequent trouble sleeping. Post-service, the Veteran underwent a sleep study in September 2009 and was diagnosed with moderate obstructive sleep apnea, though severe during sleep. The Veteran submitted lay statements by his wife, indicating that the Veteran had been snoring since his time in the military and that his snoring prevented him from falling asleep. In an October 2012 statement, the Veteran’s wife stated that the Veteran snored loudly and would stop breathing in his sleep. The Veteran received a VA examination in January 2016 and the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not caused by his military service. The examiner acknowledged the Veteran’s and his wife’s statements recounting snoring in service, noting that the Veteran’s wife described his current sleep apnea symptoms while reporting that he snored for years prior to this. The examiner explained that snoring alone is not sufficient to meet the criteria for a sleep evaluation and that it was not predictive of a positive sleep study. The examiner further stated that snoring can be a symptom of a number of upper respiratory issues and is most often seen in the absence of obstructive sleep apnea. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran’s current obstructive sleep apnea is less likely than not related to his period of active service. There is no probative medical evidence demonstrating a causal link between the Veteran’s service and his sleep apnea. The Board acknowledges the Veteran’s and his wife’s lay statements regarding the onset of the Veteran’s snoring. While the Veteran and his wife are competent to describe his symptoms, without medical training, they have not demonstrated the competency to opine on matters requiring medical expertise, such as the etiology or natural progression of sleep apnea. See Jandreau, 492 F.3d at 1376. As such, the Board assigns little probative weight to the Veteran’s and his wife’s assertions that his obstructive sleep apnea is related to his military service. Although the Veteran contends that his snoring originated in service, there is no medical evidence supporting a diagnosis of sleep apnea or other sleep disorder in service. Moreover, as indicated by the January 2016 VA examiner, snoring alone is not sufficient to establish a diagnosis of sleep apnea. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Bilateral Hearing Loss The Veteran contends that his service-connected bilateral hearing loss has increased in severity over time. In a May 2017 brief, the Veteran stated that the evaluation of his hearing loss does not reflect his current level of disability and his hearing has worsened since his last VA examination. The Veteran was afforded a DBQ examination for his hearing loss in October 2012, and the examination was adequate for rating purposes at that time. However, this examination is unduly remote, as it is almost 6 years old. The Board is unable to determine the current severity of the Veteran’s service-connected hearing loss, and concludes that a remand is needed to afford the Veteran an opportunity to undergo updated an VA examination to assess the current nature, extent, and severity of this disability and to obtain any outstanding VA treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered “contemporaneous”); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran’s claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claims. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. All necessary tests should be conducted, and the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran’s bilateral hearing loss on any occupational functioning and activities of daily living. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel