Citation Nr: 18152007 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-24 512A DATE: November 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral loss of vision is denied. Entitlement to service connection for hypokalemia is denied. Entitlement to a rating in excess of 10 percent for hypertension is denied FINDINGS OF FACT 1. The Veteran’s tinnitus is etiologically related to acoustic trauma sustained in active service. 2. The Veteran does not have a disability for VA compensation purposes manifested by decreased visual acuity. 3. The Veteran’s hypokalemia has not resulted in disability. 4. The Veteran’s hypertension is not manifested by diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for bilateral loss of vision have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for hypokalemia have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from November 1991 to October 1996 and from March 2003 to May 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Service Connection — Tinnitus The Veteran has asserted that she has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that during active service she was exposed to hazardous noise while stationed on a Marine Corps base where loud artillery was used daily. Additionally, she was exposed to hazardous noise from artillery use during training, while participating in rifle practice, and while setting up mock hospitals. The Board finds that the Veteran's report of noise exposure is consistent with her service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran reported complaints of tinnitus while in service. However, the Veteran has reported that she first experienced tinnitus while she was in active service and that her symptoms have continued since that time. The Board notes that the Veteran is competent to report when she first had symptoms of tinnitus and that is has continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In June 2014, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported in-service noise exposure and that her tinnitus began in the 1990’s. The VA examiner diagnosed tinnitus and opined that it was less likely than not that the Veteran's tinnitus was due to in-service noise exposure. In this regard, the examiner noted that the Veteran responded “no” to complaints of ringing in her ears during a July 1996 medical examination. The Board finds the June 2014 VA medical opinion inadequate for adjudication purposes. In this regard, the Board notes that the examiner failed to consider the Veteran's lay statements regarding the onset and continuity of her tinnitus. Further, the examiner heavily based the negative opinion on the fact that the Veteran failed to complain of ringing in her ears during the July 1996 examination. That alone is not a sufficient basis for a negative conclusion. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify tinnitus and her statements have been found credible. In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. The Veteran has competently and credibly reported that her tinnitus began in service and has continued since that time. The Veteran has been diagnosed with tinnitus and the VA medical opinion of record is not probative. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Bilateral Loss of Vision The Veteran has asserted that she sustained decreased visual acuity as a result of her active service. STRs are silent for an injury to the Veteran’s eyes while she was in active service. At the time of her separation examination, the Veteran did not report any injury to her eye and specifically reported that she had not experienced any vision changes or double vision during active service. The Veteran’s eyes, pupils, ocular motility and ophthalmoscopic examination were all clinically normal. The Veteran’s distance vision was 20/20 in both eyes at that time. There is no other indication from the separation examination report that the Veteran has any vision problems at that time. A review of the post-service medical evidence of record shows that the Veteran receives optometry care at that VA Medical Center. In November 2017, the Veteran was seen for complaints of blurry distance vision at night with habitual glasses. At that time, the Veteran’s best corrected distance vision was 20/20 in both eyes. The Veteran did not report any vision problems that had their onset during service, or were otherwise related to her service. The Veteran’s VA Medical Center optometrist diagnosed refractive error, with normal corrected vision. The Board acknowledges that a VA medical examination or medical opinion has not been obtained in response to the claim. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159 (c)(4) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). There is no competent evidence of record indicating that the Veteran has a vision problem that is related to her active service. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and a VA examination or medical opinion is unnecessary. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or contemporary to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, while the Veteran does have refractive error, refractive error is not a disability for compensation purposes. 38 C.F.R. § 3.303(c) (2018). There is no other indication from the record that the Veteran has a vision disability that is related to her active service. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a vision disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Hypokalemia Regarding the Veteran’s hypokalemia, no chronic disability has been shown. The Board acknowledges that the Veteran has low potassium. However, the finding of low potassium is a laboratory result and not, in and of itself, a disability for VA compensation purposes. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). The term “disability,” used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In this case, there is no evidence of record that suggests that the Veteran’s hypokalemia causes any impairment of earning capacity. Thus, there is no basis for granting service connection. Increased Rating — Hypertension The Veteran has asserted that her hypertension is worse than contemplated by the currently assigned rating. At January 2016 VA hypertension examination, the Veteran reported that she took medication to control her blood pressure. Her blood pressure readings at the examination were as follows: 122/70, 118/68, and 124/80, with an average reading of 120/75. The examiner specifically noted that the Veteran did not have a history of diastolic pressure of predominantly 100 or more. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to her hypertension. In May 2018, the Veteran was afforded a VA heart examination. At that time, the Veteran reported that she took medication to control her blood pressure. Her blood pressure reading at that time was 134/80. A review of the record shows that the Veteran received treatment at the VA Medical Center for her hypertension. A review of the treatment notes of record does not show the Veteran to have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. In short, the VA Medical Center treatment notes of record do not show symptoms of hypertension that are worse than those described in the VA examination reports of record. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for hypertension. Specifically, the evidence does not show that the Veteran's diastolic blood pressure was predominantly 110 or more, or that her systolic blood pressure was predominantly 200 or more. In fact, it appears that the Veteran’s hypertension is fairly well-controlled with medication. Therefore, a rating in excess of 10 percent for hypertension is not warranted at this time. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for hypertension is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christina Quant, Law Clerk