Citation Nr: 20082012 Decision Date: 12/31/20 Archive Date: 12/31/20 DOCKET NO. 17-28 446 DATE: December 31, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for glaucoma is granted. REMANDED Entitlement to service connection for a kidney condition, to include as due to contaminated water exposure at Camp Lejeune is remanded. Entitlement to service connection for a skin condition, to include as due to contaminated water exposure at Camp Lejeune is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of right ear hearing loss for VA purposes. 2. The Veteran’s glaucoma is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for glaucoma have been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1978 to October 1981 and from June 1982 to August 1988. This appeal comes to the Board of Veterans’ Appeals (Board) from December 2016 and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection 1. Entitlement to service connection for right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as ‘chronic’ in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 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. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for right ear hearing loss. The Veteran contends that he was exposed to loud noise during his military service. He worked on operating equipment in the Marine Corps for at least 5 hours a day without any hearing protection. The Veteran’s DD-214 shows that his military occupational specialty (MOS) was an engineer equipment mechanic. The Board notes that veterans are competent to attest to noise exposure during service, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and the Veteran’s statements in this case are consistent with the places, types and circumstances of his military occupation. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Therefore, the Board concedes that the Veteran was exposed to loud noise during his active service. Although the Board concedes that the Veteran was exposed to noise during service, the Board still must find that the Veteran has a current disability. Impaired hearing is a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. In December 2016, the Veteran was afforded a VA examination for his hearing loss. The Veteran demonstrated the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 10 15 30 35 22.5 Speech discrimination testing (Maryland CNC) performed at the time revealed speech recognition of 100 percent in the right ear. The VA examiner concluded that the Veteran had sensorineural hearing loss in the right ear. The examiner opined that the Veteran’s hearing loss was at least as likely as not caused by or a result of an event in the military. The Veteran reported hearing loss that was initially diagnosed less than one year after service during an initial physical for an occupational examination. His military occupation specialty during service verified his noise exposure. A comparison of the 1978 entrance audiogram and the 1981 separation audiogram indicated no significant shifts in hearing threshold during the Veteran’s first term of service; however, significant threshold shifts in the additional periods of active duty cannot be ruled out as there was no separation audiograms from the Veteran’s other period. In August 2019, the Veteran was afforded a VA examination for his hearing loss. The Veteran demonstrated the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 Average RIGHT 5 5 15 25 35 20 Speech discrimination testing (Maryland CNC) performed at the time revealed speech recognition of 96 percent in the right ear. The VA examiner diagnosed the Veteran with sensorineural hearing loss in the right ear. No etiology was provided. A review of the Veteran’s medical records, including service treatment records and December 2016 and August 2019 VA examinations, shows that the Veteran does not have right ear hearing loss for VA purposes. Neither the Veteran nor his representative provided evidence supporting a finding that he currently suffers from right ear hearing loss for VA purposes. Although the August 2016 VA examiner gave a positive medical nexus opinion regarding the Veteran’s right ear hearing loss, the Board is precluded from granting service connection for the Veteran’s right ear at this time, as he does not meet the criteria for a disability in that ear. 38 C.F.R. § 3.385. Importantly, this does not preclude a grant of service connection for right ear hearing loss at a later date, should the Veteran’s hearing diminish further. The Board’s conclusion here is based on the fact that the objective evidence of record simply does not demonstrate that the Veteran currently has hearing loss for VA purposes in his right ear during the pendency of this appeal. Therefore, the Board finds that evidence of a present hearing loss disability has not been presented; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The claim of entitlement to service connection for right ear hearing loss is denied. 2. Entitlement to service connection for glaucoma. The Veteran is seeking service connection for glaucoma. The Veteran testified during his January 2020 Board hearing that he started having eye problems while he was in service. The Veteran got his first eye infection then. He was told that he had high pressure in both eyes. The Veteran’s service treatment records are silent for any signs, symptoms, treatment for, or diagnosis of glaucoma. However, the Veteran’s service treatment records did show that the Veteran had problems with his visual acuity. In January 2020, the Veteran submitted a private medical opinion from his eye care specialist, Dr. J.J. Dr. J.J. was board credentialed to practice in his specialty of Doctor of Optometry. The physician had been treating the Veteran since January 2015. The physician diagnosed the Veteran with severe open angle glaucoma. The physician stated that he personally reviewed the Veteran’s medical history during the Veteran’s office visits. Dr. J.J. noted that the circumstances and events of the Veteran’s military service were per the Veteran’s recollection, which included increased ocular pressure while in service that was not treated properly. Due to this, the Veteran sustained severe optic nerve damage, in the 10 years while in service. Dr. J.J. was not able to review the Veteran’s medical records during his military service. Dr. J.J. reported that he was familiar with the Veteran’s history and had examined the Veteran while under his care. The Veteran had no other known risk factors that might have precipitated his current condition. After a review of the pertinent records, it was the physician’s professional opinion that it was most likely that the Veteran’s condition as a direct result of his increase in eye pressure which caused severe open angle glaucoma at some point during his military service. The Board finds the Veteran’s statements during his testimony at his hearing to be competent and credible that he had problems with his eyes while in service. Additionally, the January 2020 private medical opinion was written by a certified physician who had been treating the Veteran since 2015. The positive opinion is afforded great weight and probative value by the Board. As there is no other negative opinion of record, the Board finds that service connection for glaucoma is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a kidney condition, to include as due to contaminated water exposure at Camp Lejeune is remanded. The Veteran contends that he has a kidney condition that is related to his military service, to include exposure to contaminated water at Camp Lejeune. Service treatment records show that the Veteran had kidney stones and was admitted to the hospital in November 1986 for ureteropelvic junction calculi left (kidney). During his hearing before the Board in January 2020, the Veteran complained that he had kidney problems. Additionally, VA has already conceded that the Veteran was exposed to contaminated water at Camp Lejeune. The Board finds that the evidence of record is sufficient to trigger VA’s duty to assist in providing the Veteran with a VA examination to determine whether his claimed kidney condition is etiologically related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a skin condition, to include as due to contaminated water exposure at Camp Lejeune is remanded. The Veteran is seeking service connection for a skin condition. He claims his current skin condition, which he claims to be rash breakouts, is related to his exposure to the contaminated water at Camp Lejeune. VA has already conceded that the Veteran was exposed to contaminated water at Camp Lejeune. The Board finds that the evidence of record is sufficient to trigger VA’s duty to assist in providing the Veteran with a VA examination to determine whether his claimed skin condition is etiologically related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current kidney condition. All necessary tests should be performed. A copy of this remand and claims file should be reviewed the examiner. The examiner should consider the following: (a.) Is it at least as likely as not that the Veteran’s kidney condition is related to his military service, to include exposure to contaminated water at Camp Lejeune and kidney stones and hospitalization for ureteropelvic junction calculi? The Board concedes the Veteran’s exposure to contaminated water at Camp Lejeune. All opinions must be accompanied by a sufficient rationale. An absence of medical evidence cannot be the sole basis for a negative opinion. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his current skin condition. All necessary tests should be performed. A copy of this remand and claims file should be reviewed by the examiner. The examiner should consider the following: (a.) Is it at least as likely as not that the Veteran’s skin condition is related to his military service, to include exposure to contaminated water at Camp Lejeune? The Board concedes the Veteran’s exposure to contaminated water at Camp Lejeune. All opinions must be accompanied by a sufficient rationale. An absence of medical evidence cannot be the sole basis for a negative opinion. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.