Citation Nr: 21066690 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-33 053 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a bilateral eye or vision disability is denied. FINDINGS OF FACT 1. Bilateral hearing loss was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative evidence of record does not show bilateral hearing loss to be etiologically related to a disease, injury, or event in service. 2. The most probative evidence of record does not show tinnitus to be etiologically related to a disease, injury, or event in service. 3. The most probative evidence of record does not show a bilateral eye or vision disability to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. § §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 2. The criteria for service connection for tinnitus have not been met. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. § §§ 3.102, 3.159, 3.303, 3.304 (2020). 3. The criteria for service connection for a bilateral eye or vision disability have not been met. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. § §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1978. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the duty to notify and the duty to assist, the Veteran has not raised any issues, with the exception of arguments made regarding the May 2021 audiological Disability Benefits Questionnaire (DBQ), which will be addressed below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any other potential issues in this regard. Additionally, the Veteran has not alleged any deficiency with his January 2021 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board notes that, although new medical literature was received along with the September 2021 Written Brief Presentation after the July 2021 supplemental statement of the case (SSOC), the evidence does not require waiver of initial Agency of Original Jurisdiction (AOJ) consideration, as the Veteran's substantive appeal was received after February 2, 2013. As such, the Board may proceed to adjudicate the claims as done below without prejudice to the Veteran. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As organic diseases of the nervous system, such as hearing loss, are listed as a "chronic disease" under 38 C.F.R. § § 3.309 (a), the provisions of 38 C.F.R. § § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. §§ 3.307 pertaining to presumptive service connection for chronic disease apply to the Veteran's hearing loss claim. With respect to hearing loss disability, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § § 3.385 (2020). "[I]mpaired 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." The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, indicated that 38 C.F.R. §§ 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that 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, including myopia, presbyopia, anisometropia, hyperopia, and astigmatism, 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. 45,711 (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). 1. Entitlement to service connection for bilateral hearing loss and tinnitus is denied. The Veteran is seeking service connection for bilateral hearing loss and tinnitus. Specifically, the Veteran asserts that he was exposed to noise while serving on a ship and working as a radio operator during service. A review of his service treatment records reveals no complaints, treatment, or diagnoses of tinnitus or bilateral hearing loss. The Veteran underwent a VA audiological examination in October 2010, at which he was diagnosed with hearing loss of the right ear only and bilateral subjective tinnitus. As the service treatment records were not available for review at that time, a VA addendum opinion was provided in February 2011. In the February 2011 addendum, the examiner concluded that it is less likely than not that the Veteran's bilateral hearing loss and tinnitus are caused by or a result of military noise exposure. The examiner noted that the claims file review indicated normal hearing in both ears at enlistment in 1974 and at separation in 1978. The examiner noted that the Institute of Medicine, in a 2005 study on military and noise exposure, stated that there was no scientific evidence to support delayed onset of noise-induced hearing loss. Acoustic trauma in the military has been conceded. The Veteran reports noticing the tinnitus for the past 18 to 20 years with no event associated with the onset (around 1990 which would be about 12 years after the service.) In support of his claim, the Veteran submitted a November 2020 private medical opinion, in which the physician determined that the Veteran's sensorineural hearing loss and tinnitus were more likely than not caused/aggravated by an in-service event. The physician noted that noise levels high enough to cause acoustic trauma without hearing protection would cause hearing loss and tinnitus, and that the Veteran served before the hearing conservation program. Notably, the physician did not review the Veteran's service treatment records. As discussed in the March 2021 remand, the Board finds the November 2020 private opinion has little probative value, as it was not based on a review of the Veteran's claim file, to include his service treatment records and prior VA examination. The February 2011 VA addendum opinion also has little probative value, as it appears to be largely based on a lack of in-service evidence of hearing loss. Lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Veteran underwent a new VA audiological examination in May 2021. The examiner determined that the Veteran's bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner noted that the claims file revealed normal hearing at the enlistment and separation examinations, and there were no significant in-service thresholds shifts present. The examiner noted that the military occupational specialty (MOS) of radioman is not highly likely to encounter hazardous noise levels on a regular basis. The examiner went on to reference relevant medical literature. The examiner further determined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner found that the Veteran's tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner noted that the Veteran's service treatment records were silent for tinnitus complaints, and there was no significant in-service threshold shift present on any post-enlistment audiogram in the claims file. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The Veteran's MOS of radioman is not highly likely to encounter hazardous noise levels on a regular basis. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In this case, the service treatment records show no indication of tinnitus of hearing loss. Moreover, the May 2021 VA opinion specifically does not link the Veteran's hearing loss or tinnitus to service. The Board finds this opinion is the most probative medical evidence of record on the matter, as the examiner reviewed the claims, examined the Veteran, and provided a detailed rationale for the opinion. As noted above, the Board finds the November 2020 private opinion has little probative value, as it was not based on a review of the Veteran's claim file, to include his service treatment records and prior VA examination. The Board has considered the Veteran's contentions that he has hearing loss and tinnitus related to his service. However, the Board finds that the Veteran is not competent to link a current diagnosis of hearing loss or tinnitus to his service, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current bilateral hearing loss or his tinnitus and his service exists. Additionally, the Board has considered the assertions set forth by the representative in the September 2021 Written Brief Presentation. Specifically, the representative referenced medical literature addressing noise-induced hearing loss. However, the Board finds that such generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Further, the Board acknowledges that the representative took issue in the September 2021 Written Brief Presentation with the May 2021 VA examiner not defining or applying the term "normal measurement variability" in the examination report. Moreover, the representative also asserted that the examiner did not properly consider the "legal environment" with regard to Occupational Safety and Health Administration (OSHA) becoming law in late 1970 and the Noise Control Act of 1972, and the examiner did not rely on current research. The Board finds that the May 2021 VA medical opinion was based on a review of the claims file and considered the specific circumstances of the Veteran's situation. The examiner examined the Veteran, provided a detailed rationale for her opinion, and referenced relevant medical literature. As such, the Board finds that the May 2021 VA opinion is adequate and is the most probative evidence of record on this matter. The Board notes that the examiner responded to the question in the DBQ form regarding normal measurement variability. However, the examiner was not asked to provide a definition of this term in this DBQ, nor does the Board find that the lack of a definition in the DBQ impacts the provided rationale. While the examiner did not cite all of the medical literature or relevant law from the 1970s referenced in the Written Brief Presentation, the examiner did discuss relevant medical literature in the examination report. The examiner was essentially asked to consider the circumstances of the Veteran's service and provide a rationale for an opinion as to whether the Veteran's hearing loss or tinnitus is related to service. The Board finds that the May 2021 VA opinion complied with this request. As noted above, the audiologist reviewed the claims file, examined the Veteran, and provided a detailed rationale for the opinion, in which she discussed pertinent medical literature. The opinion is adequate. The Board notes that there is no competent or credible evidence of record reflecting that the Veteran demonstrated hearing loss of either ear to a compensable degree within one year of discharge from active duty. As such, service connection for hearing loss cannot be granted on a presumptive basis. With regard to the issue of continuity of symptomatology for his hearing loss under 38 C.F.R. § § 3.303 (b), the Veteran specifically denied ear trouble on a March 1978 and a May 1987 Report of Medical History. There is no other evidence from service or within one year of separation from service documenting hearing loss of either ear to a compensable degree. In summary, as the most probative medical evidence of record on the matter does not link the Veteran's hearing loss or tinnitus to service, and the Veteran is not competent to provide the link himself, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss or tinnitus, and the benefit-of-the-doubt rule is not for application. 2. Entitlement to service connection for a bilateral eye or vision disability is denied. The Veteran is seeking service connection for a bilateral eye or vision disability. At his January 2021 hearing, the Veteran asserted that his private doctor informed him that the time he spent in service using a radar scope may have affected his vision. The Veteran asserted that his vision has worsened over the years. He also asserted in a January 2016 Report of General Information that he believed low light levels in the radio operator room in the military impacted his sight. A review of his service treatment reveals changes in his visual acuity from his March 1974 Report of Medical Examination to his March 1978 Report of Medical Examination. In a July 2021 DBQ, a VA examiner specifically noted that the Veteran did not have an eye condition (other than congenital or developmental error of refraction). It was noted that he requires glasses mainly to read and his condition has stayed the same since its onset. In a July 2021 VA opinion, the examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran denied any in-service injury to his eyes, and his only problem is developmental refractive error, which is not related to service and is a normal occurrence. The Veteran's use of the radar scope is in no way connected to his normal developing refractive error. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In this case, the only medical opinion on the matter specifically does not link an eye or vision disability to service, to include his use of a radar scope. There is no medical evidence to the contrary. The Board has considered the Veteran's contentions that he has a bilateral eye or vision disability related to his service, to include his specific assertion that using a radar scope may have affected his vision. However, the July 2021 VA examiner specifically addressed this assertion. Moreover, the Veteran is not competent to link a current diagnosis of a bilateral eye or vision disability to his service, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current bilateral eye or vision disability and his service exists. In summary, as the most probative medical evidence of record on the matter does not link an eye or vision disability of any kind to service, and the Veteran is not competent to provide the link himself, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral eye or vision disability, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.