Citation Nr: 18146465 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-31 614 DATE: October 31, 2018 ORDER Service connection for hearing loss is denied. Service connection for a left eye disorder is denied. REMANDED Service connection for a neck disorder, to include as secondary to lumbar strain, is remanded. Service connection for a right hip disorder, to include as secondary to lumbar strain, is remanded. Service connection for a left hip disorder, to include as secondary to lumbar strain, is remanded.   FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA purposes. 2. The Veteran does not have a left eye disorder such as hyphema and iritis; and his refractive astigmatism is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for a left eye disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to March 2012. The case is on appeal from January 2013, November 2015 and May 2016 rating decisions. In May 2018, the Veteran testified at a Board hearing. In October 2018, the Veteran perfected an appeal as to an effective date issue for posttraumatic stress disorder (PTSD). He also requested a Board hearing. The hearing for this newly appealed issue will be scheduled in future and a separate Board decision will be issued, if and when in order. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pertinent to a service connection claim, such a determination requires a finding of a current disability as one of the elements. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 1. Service connection for hearing loss. Hearing loss for the purpose of VA disability compensation is considered 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. 38 C.F.R. § 3.385. The Veteran’s service treatment records (STRs) do not document hearing loss. However, his service personnel records (SPRs) show his military occupational specialty (MOS) was as an equipment operator, an MOS with a high probability of noise exposure. Further, his service records contain an August 2011 record which indicated the Veteran was injured while driving a truck that hit an improvised explosive device (IED). Thus, the Veteran has established in-service noise exposure, the second element of service connection. However, as noted above, every service connection claim requires a finding of a current disability. Brammer, 3 Vet. App. at 225. The Veteran was afforded a February 2015 VA examination in which audiological testing showed pure tone thresholds in his right ear were 10, 15, 15, 5 and 10 decibels, at 500, 1000, 2000, 3000 and 4000 Hertz respectively. In his left ear, pure tone thresholds were 5, 10, 5, 0 and 0 decibels, at 500, 1000, 2000, 3000 and 4000 Hertz respectively. Further, speech recognition scores using the Maryland CNC Test were 100 percent in both ears. Thus, current hearing loss for VA purposes was not found. 38 C.F.R. § 3.385. The Veteran’s VA treatment records indicated decreased hearing, including records from August and September 2015. However, there was not audiological testing in the VA records which revealed hearing loss. Additionally, the Veteran was afforded a May 2018 Board hearing in which he indicated he did not believe he currently suffers from hearing loss. He specifically stated, “I don’t think I have hearing loss.” After review of the evidence, the Board finds that the Veteran was exposed to loud noise during service, as his MOS was an equipment operator and he was also injured by an IED. However, the Board finds that the preponderance of the evidence is against the claim. The evidence overall, including the audiological test results, does not show the Veteran has current hearing loss for VA purposes under 38 C.F.R. § 3.385. Furthermore, while the current disability element can in some circumstances be established with a showing of functional impairment even without a diagnosis, VA has specifically defined what a current disability represents for hearing loss. Cf. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Given that the probative evidence of record fails to show current hearing loss, the preponderance of the evidence is against the Veteran’s hearing loss claim. Thus, there is no reasonable doubt to be resolved and service connection for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for a left eye disorder. The Veteran’s STRs show injuries to his left eye. A July 2010 STR indicated the Veteran’s left eye was irritated as he got a chemical substance into the eye. He was diagnosed with keratitis. Further, an October 2011 VA STR noted the Veteran was hit directly in the left eye with a baseball. This caused immediate left eye and peri-orbital pain, a laceration and he experienced some blurry vision. He was diagnosed with traumatic hyphema and traumatic iritis. His March 2012 separation examination also noted left eye complaints. The Veteran was afforded a February 2015 VA examination in which the examiner diagnosed him with previous traumatic hyphema and traumatic iritis, both of which had resolved. The examiner also reported he has astigmatism refractive error of an unknown origin. He stated there was no ocular injury or pathology in the left eye upon examination, aside from refractive astigmatism. He indicated while it is possible that irregular astigmatism can result from an ocular injury, the measured astigmatism during the VA examination is equivalent to that which was recorded in a January 2009 examination, prior to the Veteran’s service and left eye injuries. Post-service VA treatment records reveal no left eye diagnosis. Further, during the May 2018 hearing, the Veteran addressed his left eye claim. He significantly testified that he can see fairly well with his glasses and that he is not experiencing other symptoms related to a left eye injury. The Board determines service connection for a left eye disability is not warranted. The diagnoses of traumatic hyphema and traumatic iritis have both resolved according to the persuasive and probative medical evidence. While the Veteran suffered documented in-service left eye injuries, the preponderance of the evidence is against a connection between a current left eye disorder and service. Additionally, the Board notes that refractive error was found at the February 2015 examination. Refractive errors of the eye are diseases or injuries for which service connection cannot be granted. See 38 C.F.R. §§ 3.303(c), 4.9; see also O’Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (refractive error of the eye is not a compensable disease because it is specifically excluded from the regulation even though refractive errors of the eye can progress) (citing Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003)). The Board finds the most probative evidence of record is the February 2015 VA examination report which indicated the only left eye condition which has not resolved was astigmatic refractive error, and such is not related to service. Further, as noted above, the Board acknowledges the Veteran’s reports during the May 2018 hearing that he suffers no left eye residuals of his in-service injuries. In sum, the preponderance of the evidence is against the claim of service connection for a left eye disorder; and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection is not warranted for a left eye disorder. REASONS FOR REMAND 1. Service connection for a neck, to include as secondary to lumbar strain. 2. Service connection for a right hip disorder, to include as secondary to lumbar strain. 3. Service connection for a left hip disorder, to include as secondary to lumbar strain. The Veteran contends that he has neck and hip disorders which are related to his service-connected low back disability. Alternatively, he asserts that the conditions are directly related to service. As noted above, the Veteran was injured in service when a truck he was driving struck an IED. A November 2012 statement indicated upon hitting the IED, his vehicle jumped approximately 10 feet off the ground and landed on its side. He reported experiencing a lot of pain in his lower back. The Veteran was afforded an April 2016 VA examination in which he was diagnosed with a cervical strain. The examiner indicated the Veteran’s neck disorder is not related to his low back disability. He stated the two conditions are not medically related and are separate entities entirely. He further noted the medical literature does not support a relationship between the low back and neck disorders, and a nexus has not been established. With regard to the bilateral hips, the examiner concluded no condition was identified for the bilateral hips and thus, there was no relationship between hip and back disorders. The Veteran reported he was injured during service in an IED and his bilateral hips hurt after the incident; however, he did not seek treatment until October 2015. The Veteran further indicated he suffers sharp bilateral hip pain, made worse with heavy labor and which causes a dull ache at times. The Veteran submitted a November 2017 substantive appeal in which he indicated he disagreed with the VA examiner. He stated he strongly believes that his neck and hip disorders were caused or aggravated by the required physical adjustments necessary for his service-connected low back disability. Additionally, during the May 2018 Board hearing, the Veteran asserted that his neck and hip disorders may be directly related to his in-service injury involving hitting an IED. The Board finds another VA examination is warranted to address direct and secondary service connection theories of entitlement, for both claims. With regard to the bilateral hips claim, a thorough explanation is required as to why the Veteran’s reported bilateral hip pain is not a diagnosable condition. To the extent that the Veteran does not have a diagnosed hip disability, VA must consider whether he has functional impairment for which service connection may still be granted. See Saunders, 886 F.3d at 1356 (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). The examiner must fully address secondary causation, including the aggravation prong. Direct service connection also needs to be addressed, as such has been raised by the Veteran and has not yet been discussed by a VA examiner. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any diagnosed neck and bilateral hip disorders. The examiner should identify whether the Veteran has current disabilities of the neck and bilateral hips. If none can be identified, it should be explained why this is so. The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified neck and/or hip disorders had their onset during, or are otherwise causally related to, service, to include the Veteran’s in-service injury involving being struck by an IED. If not, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the neck and/or hip disorders were caused or aggravated by the service-connected low back disability. Aggravation is an increase in disability beyond a temporary flare-up or natural progress of the disease. Consideration should be given to the lay evidence of record. The examiner must provide a complete rationale for all opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel