Citation Nr: 21072580 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 11-11 717 DATE: December 3, 2021 ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for a psychiatric disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an effective date prior to August 30, 2016, for the award of service connection for hearing loss of the left ear is denied. REMANDED Entitlement to service connection for hearing loss of the right ear is remanded. Entitlement to a compensable disability rating for hearing loss of the left ear is remanded. FINDINGS OF FACT 1. A current disability of either eye did not have its onset in service, has not been chronic or continuous since service separation, did not manifest within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 2. A current psychiatric disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifest within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 3. A current diagnosis of sleep apnea did not have its onset in service, has not been chronic or continuous since service separation, did not manifest within a year of service separation, and is not due to an in-service disease, injury, or other incident of service. 4. The Veteran's service connection claim for hearing loss was received on August 30, 2016; no prior pending claim is of record. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to an effective date prior to August 30, 2016 for the award of service connection for hearing loss of the left ear have not been met. 38 U.S.C. §§ 5107, 5110, 5121; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1976 and from January 1991 to June 1991. He had periods of active duty for training and/or inactive duty for training between August 1976 to January 1991 and from July 1991 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In a September 2019 decision, the Board remanded the issue of entitlement to service connection for a bilateral eye disability. The remaining issues were denied by the Board. The Veteran subsequently appealed these denials to the U.S. Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board's September 2019 denials and returning those issues to the Board for further adjudication. The Board then issued a February 2021 remand order, returning those issues to the RO for further development. That development has been accomplished and these issues are properly before the Board. Service Connection 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, 1131; 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). 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 chronic disease 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 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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a bilateral eye disability The Veteran seeks service connection for a disability of the bilateral eyes. He asserts he sustained injuries to the eyes during service, to include exposure to "high frequency radiation," and service connection is therefore warranted. Considering first the service treatment records, the Veteran was seen in April 1992, during a period of active duty for training or inactive duty training, for conjunctivitis and a pterygium of the left eye. He was given medication and returned to duty. On a subsequent September 1994 periodic physical examination, he was without any noted abnormalities of either eye, and on a concurrent report of medical history, he denied any history of eye trouble. The Veteran was noted during service to have refractive errors of the eye, but these were correctable with prescription lens. Additionally, the Board notes that refractive errors of the eye are not considered a disability for VA purposes. 38 C.F.R. § 3.303(c). Post-service, the Veteran first sought private treatment for a disability of either eye in approximately 2004, when he was found to have maculopathy of the left eye. In 2009, he was diagnosed with post-vitreous detachment of the right eye. On VA examination in February 2009, bilateral incipient senile cataracts were diagnosed, along with bilateral degenerative myopic changes. A macular edema of the left eye was also observed. Thus, a current disability of either eye was not diagnosed until more than 10 years after his last period of active duty service. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). While the Veteran was seen for conjunctivitis and a pterygium during a period of inactive duty for training in 1992, the Board must assume these disabilities were acute and transitory, as they were not noted on a subsequent physical examination in September 1994. Furthermore, the Veteran denied any history of eye trouble on a concurrent report of medical history. Thus, based on this evidence, the Board must conclude a current disability of either eye was not incurred in service, has not been chronic or continuous since service separation, and did not manifest to a compensable degree within a year of service separation. Additionally, competent evidence has not been presented of a nexus between any in-service disease, injury, or other incident of service, and a current eye disability. The Veteran was most recently provided with a VA examination in November 2019. The claims file was reviewed in conjunction with the examination. Notably, the Veteran denied any history of ocular trauma to either eye, to include during service. After examining the Veteran and reviewing the claims file, the examiner opined it was less likely than not that any current disability of either eye was incurred in or otherwise related to service. The examiner noted the Veteran's in-service diagnoses of conjunctivitis and pterygium of the left eye but observed that neither diagnosis was currently present. Additionally, his current disorders of the eyes, to include cataracts and maculopathy, were age-related, according to the examiner, with no evidence any such disability was incurred in or otherwise present in service. The examiner also observed that while the Veteran's myopia had worsened with age, this diagnosis was a congenital defect resulting in refractive errors of the eyes. The Veteran has asserted he worked with lasers in service and sustained an eye injury as a result. As noted above, the service treatment records are negative for any disease or injury of either eye attributable to use of lasers. In support of his contention, he submitted a June 2021 letter from J.R.P.V., M.D., a private physician. Dr. V. noted that lasers could have caused the Veteran's current disabilities of the eyes, but also admitted he had no evidence that the Veteran sustained such an injury during service. The Board finds this opinion to be of no probative value, as it merely speculates about the origin of the Veteran's cataracts and other current eye disabilities, without any evidence such precipitating injuries actually occurred in service. As noted above, the Veteran has denied any history of ocular trauma, and his service treatment records are negative for any injuries to either eyes related to use of lasers or any other cause. Rather, the Board accepts the November 2019 VA examiner's opinion to be the most probative evidence of record regarding whether the Veteran's bilateral eye disabilities are the result of his service, as it is based upon all relevant facts, is supported by a well-reasoned rationale and, is consistent with the other evidence of record. Thus, service connection for disabilities of either eyes must be denied. The Veteran himself asserts that he has a current bilateral eye disability which had its onset in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, disorders of the eyes are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a disability of either eye. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a psychiatric disability The Veteran seeks service connection for a psychiatric disability. He asserts such a disability had its onset in service, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a psychiatric disability. During the Veteran's service, he was afforded multiple physical examinations, all of which are negative for any psychiatric abnormalities. The last such examination was in September 1994. On a concurrent September 1994 report of medical history, the Veteran denied any history of depression, excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Post-service, private treatment records beginning in 2008 indicate diagnoses of depression and major depressive disorder. In July 2012, the Veteran was afforded a VA psychiatric screening as part of a periodic physical examination. Depression and posttraumatic stress disorder (PTSD) screenings were negative. Thus, based on this evidence, the first diagnosis of any psychiatric disability dates to 2008, more than 15 years after the Veteran's most recent period of active duty service. In the absence of any competent evidence of onset of a psychiatric disability either during service or within a year thereafter, the Board must conclude a current psychiatric disability did not have its onset in service and has not been chronic or continuous since service separation. In reaching this conclusion, the Board notes the Veteran's own denials of psychiatric symptomatology on the September 1994 report of medical history. Additionally, no private or VA examiner has suggested the Veteran has a current psychiatric disability which either began during service or is due to an in-service disease, injury, or other incident of service. The Board acknowledges that the Veteran has not been provided a VA examination for this claimed disability, however, as the evidence of record does not reflect an indication of a nexus between the Veteran's diagnosed depression and major depressive disorder and service, a remand for a VA medical examination is not warranted. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran himself asserts that he has a current psychiatric disability which had its onset in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. The Board notes the Veteran explicitly denied depression, excessive worry, and nervous trouble during service, and was negative for any psychiatric symptoms on numerous periodic physical examinations. In conclusion, the preponderance of the evidence is against the award of service connection for a psychiatric disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for sleep apnea The Veteran seeks service connection for sleep apnea. He asserts such a disability had its onset in service, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for sleep apnea or any other sleep-related disability. During the Veteran's service, he was afforded multiple physical examinations, all of which are negative for any sleep-related abnormalities. On a September 1994 report of medical history, the Veteran denied any history of frequent trouble sleeping. Post-service, obstructive sleep apnea was confirmed via a private sleep study conducted in January 2011. Thus, based on this evidence, the first diagnosis of any sleep disability dates to 2011, more than 15 years after the Veteran's most recent period of active duty service. Furthermore, the Veteran denied any difficulty sleeping on the September 1994 report of medical history. In the absence of any competent evidence of onset of sleep apnea either during service or within a year thereafter, the Board must conclude such a disability did not have its onset in service and has not been chronic or continuous since service separation. Additionally, no private or VA examiner has suggested the Veteran's obstructive sleep apnea either began during service or is due to an in-service disease, injury, or other incident of service. The Board acknowledges that the Veteran has not been provided a VA examination for this claimed disability, however, as the evidence of record does not reflect an indication of a nexus between the Veteran's diagnosed obstructive sleep apnea and service, a remand for a VA medical examination is not warranted. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran himself asserts his obstructive sleep apnea had its onset in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, respiratory disorders like sleep apnea are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. The Board notes the Veteran explicitly denied trouble sleeping during service and was negative for any sleep-related symptoms on numerous periodic physical examinations. In conclusion, the preponderance of the evidence is against the award of service connection for sleep apnea. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Earlier Effective Date In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2014). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b) (2014). Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). However, an effective date for increased disability compensation may be earlier than the date of receipt of the application. In such cases, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o). "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one-year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). 4. Entitlement to an effective date prior to August 30, 2016, for the award of service connection for hearing loss of the left ear The Veteran seeks an effective date earlier than August 30, 2016, for the award of service connection for his hearing loss of the left ear. The Veteran filed a VA Form 21-526b, Supplemental Claim for Compensation, requesting service connection for hearing loss; this document was received by VA on August 30, 2016. In November 2016, the RO granted service connection for hearing loss of the left ear with a noncompensable evaluation effective August 30, 2016, the date of his claim. The Board has thoroughly reviewed the evidence of record to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for hearing loss of the left ear prior to August 30, 2016. However, the Board can find no evidence that there was a pending, unadjudicated claim for service connection prior to this date. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). A specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 C.F.R. § 3.151(a). The Veteran has also not pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits regarding his hearing loss of the left ear. Having determined that the Veteran's only service connection claim for hearing loss was filed on August 30, 2016, the Board must now determine when entitlement to service connection arose. As noted above, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran had hearing loss that was linked to his service prior to the date of his claim, his August 2016 claim is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law. In sum, the Board finds that that an effective date earlier than August 30, 2016, for the grant of service connection for hearing loss of the left ear is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim and his appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss of the right ear 2. Entitlement to a compensable disability rating for hearing loss of the left ear The Veteran seeks service connection for hearing loss of the right ear, and a compensable rating for his service-connected hearing loss of the left ear. Service connection for hearing loss of the right ear was previously denied because prior 2016 and 2017 VA audiometric examinations did not indicate a decline in hearing acuity of the right ear sufficient to meet the regulatory definition of hearing loss as defined by VA. 38 C.F.R. § 3.385. Subsequent VA outpatient treatment notes indicate a current diagnosis of "hearing loss, bilateral", but do not provide numerical audiometric findings to determine if hearing loss of the right ear is present. Thus, remand is warranted to afford the Veteran a VA examination for the purpose of determining if he meets the regulatory criteria for a current diagnosis of hearing loss of the right ear. Regarding the Veteran's increased rating claim for his hearing loss of the left ear, he was most recently afforded a VA examination of this disability in 2017, four years ago. As the Veteran has reported a worsening of his symptomatology, a more current VA examination is warranted to determine his current level of impairment. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current etiology of his hearing loss of the right ear, if any, and the current severity of his hearing loss of the left ear. The examiner should provide a full description of the hearing loss disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If the Veteran has hearing loss of the right ear, as defined by VA at 38 C.F.R. § 3.385, the examiner is requested to state whether it is at least as likely as not any current hearing loss disorder is due to or otherwise the result of an in-service disease, injury, or other incident of service. A complete rationale for any stated opinion is requested. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. S. Morrad Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.