Citation Nr: 18160237 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 16-03 665 DATE: December 27, 2018 ORDER Service connection for idiopathic orbital inflammation (claimed as loss of vision) is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for a mental condition including insomnia. FINDINGS OF FACT 1. The Veteran’s current visual disability, as manifested by idiopathic orbital inflammation, was not incurred in service nor is it otherwise related to any aspect of service. 2. The Veteran does not have bilateral hearing loss within the statutory definition of that disability. 3. A diagnosis of tinnitus is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a visual disability, as manifested by idiopathic orbital inflammation, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385 (2018). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1996 to February 1997 and from August 2005 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in March 2013 and December 2014 from the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2018), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds VA has complied with its duty to assist the Veteran in the development of the claims decided herein. In this respect, the Veteran’s service treatment records have been obtained. Additionally, all available post-service medical evidence identified by the Veteran has been obtained. The Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Neither the Veteran nor his representative have identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claims decided herein. Accordingly, the Board will address the merits of the Veteran’s claims. Service Connection Service connection may be granted for a disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 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. With a chronic disease in service, subsequent manifestations of the same chronic disease, at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to service connection for idiopathic orbital inflammation (claimed as loss of vision). The Board finds that service connection is not warranted for idiopathic orbital inflammation, claimed as loss of vision. There is no evidence in the record which links this condition to the Veteran’s active duty military service. The Veteran’s service treatment records were silent for a diagnosis of idiopathic orbital inflammation, but do note that the Veteran experienced eye trouble, though with no evidence of a specific condition. He was also diagnosed with scleritis of the left eye while in military service. At a December 2014 VA examination, the examiner diagnosed the Veteran with idiopathic orbital inflammation, but found that this condition was not related to the Veteran’s military service. The examiner noted that while the Veteran was treated for eye trouble in service, the scleritis of the Veteran’s left eye that was diagnosed during the Veteran’s military service was an acute and transient condition which resolved without residuals. After an in-person examination, and a review of the claims file, the examiner opined that the Veteran’s current eye disorder was less likely than not (less than a 50 percent probability) incurred in or caused by his active duty service or any complaints therein. Instead, the examiner opined that the Veteran’s vision loss was due to a refractive error, mild astigmatism, and presbyopia, all non-related to the Veteran’s complaints during active duty service; and unrelated to the scleritis diagnosis which resolved without residuals. The Veteran submitted a statement in October 2015 by Dr. Irizarry whereby the doctor stated that the Veteran suffered from a rare optical disorder that could be related to extreme weather situations like those in the Persian Gulf. However, the Board gives greater weight to the VA examiner’s opinion as the VA examiner conducted an in-person examination, and reviewed the entirety of the Veteran’s claims file. Additionally, the opinion provided by Dr. Irizarry was speculative with regards to the etiology of the Veteran’s condition, and it should be noted that idiopathic orbital inflammation is not one of the listed chronic multisymptom illnesses in 38 C.F.R. § 3.317. The probative value of a medical opinion is usually based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. Guerrieri v. Brown, 4 Vet. App. 467 (1993). As such, the Board affords the VA examiner’s opinion greater weight. The evidence demonstrates that the Veteran’s idiopathic orbital inflammation did not manifest during service, is unrelated to any eye complaints he had in service, and is not otherwise etiologically related to service. Additionally, no medical professional has provided a competent medical opinion that links the Veteran’s idiopathic orbital inflammation to any aspect of his service. With regard to the Veteran’s vision loss, for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Presbyopia is a visual condition that becomes apparent especially in middle age and in which loss of elasticity of the lens of the eye causes defective accommodation, and inability to focus sharply for near vision. McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Presbyopia is “hyperopia and impairment of vision due to... old age.” Dorland’s Illustrated Medical Dictionary 1349 (28th ed. 1994). Hyperopia is that error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus behind the retina, as a result of the eyeball being too short from front to back... Called also farsightedness and hypermetropia.” Dorland’s Illustrated Medical Dictionary 797 (28th ed. 1994). Astigmatism is due to unequal curvature of the refractive surfaces of the eye, hence a point source of light cannot be brought to a point focus on the retina, but is spread over a more or less diffuse area. Dorland’s Illustrated Medical Dictionary 151 (28th ed. 1994). Essentially, then, presbyopia and astigmatism all involve refractive error of the eyes, which is not a disability under VA regulations. The Board has considered the Veteran’s lay statements that his claims were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds service connection is not warranted for bilateral hearing loss. The record reveals that the Veteran does not have hearing loss for VA purposes, additionally, the Board finds that bilateral hearing loss was not present in service or within one year after the Veteran’s discharge from service. Service treatment records contain no complaints, treatment, or diagnosis of bilateral hearing loss. Additionally, audiometric examinations of the Veteran’s bilateral hearing were within normal limits throughout service, and there was no evidence of a diagnosis of bilateral hearing loss manifesting to a compensable degree within one year following discharge from active duty. The Veteran was afforded a VA examination to determine the severity of his hearing loss in March 2013. On that occasion, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 15 15 10 15 20 15 LEFT 10 15 5 10 15 11 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. These findings do not represent a hearing loss disability as defined by VA regulations. 38 C.F.R. § 3.385. After an in-person examination and a review of the Veteran’s claims file the VA examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran’s claimed condition incurred in or was caused by an in-service event, injury, or illness because the Veteran did not have hearing loss for VA purposes. With regard to tinnitus, the Veteran denied recurrent tinnitus at the March 2013 VA examination. The examiner indicated that the question of etiology of the Veteran’s tinnitus was moot because tinnitus was not reported. Review of systems performed at primary care visits as recently as May 2018 reflect no complaint, treatment, or diagnosis of bilateral hearing loss or tinnitus. Therefore, the medical evidence throughout the appeal period does not establish disabilities of either hearing loss or tinnitus. The preponderance of the evidence shows that the Veteran does not currently have a hearing loss or tinnitus disability. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for a mental condition including insomnia is remanded. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. VA treatment records from 2011-2018 show treatment reports for insomnia. These treatment notes from Ponce OPC starting around 2016 note that the Veteran’s insomnia is caused by a diagnosed anxiety condition. Additionally, private treatment notes throughout the appeal period indicate that the Veteran has been experiencing insomnia. The Veteran’s service treatment records do not show that he experienced problems associated with this claimed disability during active duty; however, he has reported that his insomnia began while he was stationed in Iraq. Based on the foregoing, the Board finds VA examinations and medical opinions are necessary to address this issue. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination(s) by an examiner(s) with sufficient expertise to address the etiology of the Veteran’s claimed mental disability including insomnia. All pertinent evidence of the record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner(s) should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed mental disabilities originated during the Veteran’s period of active service or are otherwise etiologically related to his active service. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner(s) should identify the additional information that is needed. 3. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. K. M. SCHAEFER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham