Citation Nr: 20040107 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-62 872 DATE: June 11, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a bilateral eye condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a current bilateral hearing loss disability, as defined by VA regulation, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a bilateral eye condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for service connection for a bilateral eye disability are not 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 had active duty service from November 1987 to August 1991 and from September 1993 to October 1994. However, the Veteran’s period of active duty service from September 1993 to October 1994 ended with an other than honorable discharge, which VA has determined to be dishonorable for VA purposes. This matter was previously before the Board in December 2018 and returns for readjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Service connection for a bilateral hearing loss disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. On the authorized audiological evaluation in September 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 20 20 LEFT 15 15 20 15 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. In comparing the results of the September 2019 examination to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against finding that the Veteran suffers from a hearing loss disability as defined for VA compensation purposes. Crucially, no other competent medical evidence in the record indicates a hearing loss disability in accordance with 38 C.F.R. § 3.385. The Veteran has not submitted any medical evidence showing that he suffers from a hearing loss disability. Indeed, the Board acknowledges that the Veteran has indicated that he would submit a private audiological examination that would demonstrate hearing loss, see March 2020 Correspondence, and was afforded an additional 30 days to do so, but to date, no results have been submitted. In the absence of proof of a present disability, there can be no valid claim for service connection. Although the Board in no way calls into question the Veteran’s own observation of diminished hearing acuity, and recognizes the September 2019 VA examiner’s conclusion that the right ear hearing impairment that was demonstrated upon examination was more likely than not related to in-service noise exposure, the Board is constrained at this time from finding that the Veteran’s hearing loss is of such severity to qualify as a disability for VA purposes, as defined by regulation. For this reason, the claim must be denied. If the Veteran’s hearing loss worsens in severity, he is encouraged to file a supplemental claim. 2. Service connection for a bilateral eye condition. The Veteran contends that his current eye problems, which includes eye pain and a need for glasses, are the result of an incident in service where battery acid and/or diesel fuel was splattered in his face and eyes. See June 2014 Correspondence; December 2016 Correspondence. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bilateral eye concretions. See October 2019 VA examination. Service treatment records show that in April 1989, the Veteran sought emergency treatment after battery acid was splashed in his face and eyes. Both were irrigated. On a March 1990 report of medical history, the Veteran denied experiencing any eye problems. In May 1991, the Veteran sought treatment for left eye pain and swelling. On his July 1991 report of medical history, the Veteran again denied any eye problems and wrote that he was in good health. The Board concludes that, while the Veteran has a diagnosis of eye concretions, and evidence shows that that the Veteran reported eye issues in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury. The Veteran underwent a VA examination in October 2019. At that time, he was diagnosed with bilateral eye concretions. The Veteran reported that during service, he was working on a generator and a spark flew into one of the cells causing an explosion, and that he was taken to the clinic where his eyes were washed out. The Veteran said that his condition had progressed and that he needs glasses and to wash out his eyes. The only condition noted was a cornea/conjunctiva condition, namely, concretions. The examiner concluded that it was less likely than not the Veteran’s eye condition was incurred in service. By way of rationale, the examiner noted that chemical injuries to the eye would have caused visible changes and would not affect refractive error. There were no signs of damage to the Veteran’s external eye. Moreover, the examiner concluded that the Veteran’s concretions were associated with aging and the inflammatory changes associated with aging. The Board finds that the examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the examiner provided a clear etiology as to the Veteran’s sole diagnosis of concretions. The Board also notes that the Veteran has not submitted any medical evidence that is contrary to the finding of the October 2019 VA examiner. To the extent the Veteran also has a diagnosis of refractive error and has asserted that his need for glasses is due to the injury sustained in service, the Board notes that VA regulations provide that refractive error does not constitute a “disease” or injury” within the meaning of applicable legislation for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9; Terry v. Principi, 340 F.3d 1378 (Fed.Cir.2003). Therefore, service connection may not be allowed for refractive error of the eyes. See VAOPGCPREC 82-90 (July 18, 1990). The Veteran believes his eye condition is related to an in-service injury, and the Board does not doubt that the Veteran’s eye problems affect his daily life. The Veteran, however, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized knowledge of ocular pathology. Therefore, it is outside the competence of Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2019 VA medical opinion. Insofar as the Veteran is asserting he has experienced eye problems continuously since his injury in 1989, the Board does not find such assertions credible given his denial of any eye problems at times subsequent to the injury during service, to include on a July 1991 Report of Medical history. A private treatment report of record dated July 13, 2001 also confirm that at that time, the Veteran had “no eye or vision problems.” See a July 13, 2001 Hospital Admission Assessment. For all these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral eye condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.