Citation Nr: 21066388 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-25 648 DATE: October 29, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is dismissed. Entitlement to service connection for an obstructive sleep apnea disability is dismissed. REMANDED Entitlement to service connection for an eye disability and/or loss of visual acuity is remanded. FINDINGS OF FACT 1. The Veteran was granted service connection for a bilateral hearing loss disability in a September 2021 rating decision. 2. The Veteran was granted service connection for an obstructive sleep apnea disability in a September 2021 rating decision. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a bilateral hearing loss disability is rendered moot by the grant of service connection for the same bilateral hearing loss disability. 38 U.S.C. § 7105. 2. The claim of entitlement to service connection for an obstructive sleep apnea disability is rendered moot by the grant of service connection for the same obstructive sleep apnea disability. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in Waco, Texas. A transcript of the hearing is of record. These matters were previously before the Board in March 2020 at which time they were remanded for further development. 1. Entitlement to service connection for a bilateral hearing loss disability is dismissed. 2. Entitlement to service connection for an obstructive sleep apnea disability is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Veteran was granted service connection for bilateral hearing loss and obstructive sleep apnea in a September 2021 rating decision. Because this is considered a full grant of the benefits sought, see Grantham v. Brown, 114 F. 3d. 1156 (Fed. Cir. 1997), these issues are dismissed as moot. REASONS FOR REMAND 1. Entitlement to service connection for an eye disability and/or loss of visual acuity is remanded. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2021). VA considers such conditions to be part of a life-long defect and normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). VA's General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). VA's General Counsel explained that the definition that indicated that diseases were capable of improving or deteriorating whereas defects were stationary in nature was essentially valid and helped to clarify the differences between the terms. Id. Determining if a Veteran's disability is congenital defect or disease is a medical question. Id. The record shows that the Veteran currently suffers from a right eye vision loss disability. See August 2016 private treatment records. Additionally, the Veteran testified at the January 2020 Board Hearing that while in service, he suffered an eye injury in service that aggravated his vision loss in his right eye, claiming that he had to wear an eye patch for several weeks. Service treatment records appear to indicate treatment for an eye condition in service. See January 1984 Service Treatment Record. In its March 2020 decision, the Board remanded the matter to determine the nature and etiology of any vision disability that may be present. The Veteran was afforded such a VA examination in April 2021, at which time the examiner recorded diagnoses of superior eyelid dermatochalasis, cataract, and dry eye syndrome. The examiner found uncorrected right eye visual acuity of 20/40 for distance and 10/200 for reading. The examiner noted normal, 20/20 visual acuity upon entrance into service and acknowledged the Veteran's right eye injury in service. The examiner cited a March 1994 STR documenting bilateral hyperopia and astigmatism, but otherwise normal ocular health bilaterally. The examiner went on to cite a June 1993 STR documenting normal ocular health bilaterally and corrected visual acuity of 20/20 bilaterally. A March 1996 VA examiner, as the examiner noted, showed "slightly large cup to disc ration that is slightly suspicious of glaucoma." Finally, an August 2014 VA optometry consult found astigmatism and presbyopia bilaterally, but noted otherwise normal ocular health bilaterally, as referenced by the examiner. While the examiner rendered nexus opinion, and found that the Veteran's superior eyelid dermatochalasis, cataract, and dry eye syndrome were less likely than not related to service, citing the Veteran's advanced age and no damage to the right eye, it remains unclear if the Veteran's vision loss, which appears to have begun in service is considered a congenital defect or disease. Although the Board regrets the additional delay, we find that an additional remand is necessary in order to determine the nature and etiology of all of the Veteran's vision disabilities. Specifically, the Board requires verification of whether any loss of visual acuity, as recorded in the STRs, is a congenital defect or disease. See VAOPGCPREC 82-90 (1990) (finding that the determination of whether a Veteran's disability is congenital defect or disease is a medical question). The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate the records with the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran's eye disability and/or loss of visual acuity. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. The examiner is asked to address the Veteran's loss of visual acuity documented in service and clarify whether such loss of visual acuity can be classified as a congenital defect (i.e., static and immutable) or a congenital or developmental disease. For each eye disability and/or loss of visual acuity identified, the examiner is asked to opine whether such disability is at least as likely as not (probability of least 50 percent) incurred in, or aggravated by active duty service. In rendering the requested opinions, the examiner is instructed to specifically acknowledge the Veteran's testimony that he experienced an eye injury on the firing range while in service. See January 2020 Hearing Transcript. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.