Citation Nr: 21072735 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 20-05 184 DATE: December 6, 2021 ORDER Service connection for a bilateral eye disability is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran does not have a current bilateral eye disability that was caused by or incurred in service, or that pre-existed service and was aggravated during service. CONCLUSION OF LAW The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss, tinnitus, and a bilateral eye disability. The Veteran's notice of disagreement (NOD) was received in August 2017. The RO issued the statement of the case (SOC) in December 2019, and the Veteran's VA Form 9, substantive appeal was received in January 2020. In June 2021, the Board remanded the case for further development and adjudicative action. SERVICE CONNECTION 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 military, naval or air 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). Every Veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that (i) the injury or disease existed before acceptance and enrollment and (ii) was not aggravated by such service. 38 U.S.C. § 1111. The Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute notation of such condition. Id. at 240. However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but may bring a claim for service connected aggravation of that disorder. Id.; see also 38 U.S.C. § 1153. A presumption of aggravation arises if there is an increase in the pre-existing disability. If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease. " 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. In cases in which a hearing loss disability is claimed, and for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. 1. Entitlement to service connection for a bilateral eye disability The Veteran contends that he is entitled to service connection for a bilateral eye disability, which he contends was caused by service. Specifically, he reports that he was poked in the eye during service, requiring stitches; alternatively, that his eye disability pre-existed service and was aggravated therein. See NOD dated August 2017. At the Veteran's entrance examination in November 1965, his eyes were normal. A December 1965 Report of Medical History reflects that the Veteran denied any history of eye trouble. A January 1968 Service Treatment Record (STR) shows that the Veteran was treated for a half-inch laceration under the left eyelid, after he was struck in the cheek during a basketball game. At the Veteran's December 1968 separation examination, his eyes were evaluated as "normal." A December 1968 Report of Medical history shows that the Veteran denied any history of eye trouble. The attending examiner noted "no serious problems on active duty." April 2003 and May 2003 private ophthalmology notes show that the Veteran was seen for ocular treatment. The private ophthalmologist noted an ocular history significant for trauma to the left eye as a child, resulting in decreased vision. The Veteran's vision was 20/25 in the right eye and 20/40 in the left eye. Intraocular pressure was elevated in the right eye, and there were findings consistent with glaucoma. A November 2007 private ophthalmologist's note shows that the Veteran was diagnosed with a cataract in the right eye, and underwent a lens implant procedure in the right eye. October 2014, November 2015, and December 2016 private ophthalmology yearly examination reports show no evidence of diabetic retinopathy in either eye. A July 2016 private eye care note shows that the Veteran was assessed with moderate, chronic, allergic conjunctivitis and moderate conjunctiva hyperemia in the right eye. He reported a burning sensation in both eyes. He was also assessed with moderate bilateral dry eye syndrome; suspected glaucoma, bilateral; posterior capsule opacification (PCO), obscuring vision, severe and bilateral; PCO, mild, unspecified; and mild vitreous floaters, bilateral. He was prescribed prednisolone acetate eye drops. A November 2016 private ophthalmology note shows that the onset of suspected glaucoma was July 2016. An October 2016 VA primary care note shows that the Veteran uses glasses for presbyopia (farsightedness). The Veteran had a VA eye conditions examination in December 2019. The examiner conducted an in-person examination and reviewed the Veteran's claims file. The examiner noted diagnoses of posterior intraocular lens OU, with a date of diagnosis of 2007; corneal guttata, with a date of diagnosis in November 2019; and dry eye syndrome, with a date of diagnosis of 2014. The examiner described the history of the eye conditions as Eyesight began to decline about 50 years ago after being hit in the eye while in service. Then had a cataract removed from the left eye 15 years ago and eyes have still continued on a progressive decline ever since. Eyesight was extremely blurry and was seen by a doctor and was given glasses. Both eyes water persistently and see floaters in both eyes. Has used "every eye drop that can be named", but has not found anything that works efficiency to control symptoms. Still using eye Systane Ultra 3 times a day. Can't usually read anything unless using readers, does not and cannot drive at night, cannot perform the simple task of writing. [sic] Then, the examiner opined that the Veteran's diagnosed eye conditions were less likely than not incurred in or caused by service; the rationale was as follows: The Veteran's diagnoses of (Posterior Intra Ocular Lens OU, Corneal Guttata, Dry Eye Syndrome, Posterior Vitreous Detachment OU) are all unrelated to laceration as the etiology of the conditions are age related. The diagnoses are unrelated to the referenced laceration as they are age related in nature and are not secondary to a laceration. Therefore, the Veteran's ([Posterior] Intra Ocular Lens OU, Corneal Guttata, Dry Eye Syndrome, Posterior Vitreous Detachment OU) is less than likely than not. The Board remanded this appeal for an additional VA opinion as the examiner did not adequately consider the private treatment records and did not complete the sentence of "is less likely than not" at end of the opinion. In July 2021, another VA examiner conducted a review of the Veteran's claims file, and provided several opinions concerning whether any eye disability was related to service. The examiner's review included reviewing the December 2019 VA examination report Disability Benefits Questionnaire (DBQ), which included the Veteran's lay statements concerning in-service onset; the STRs; and the medical records. The examiner opined that the Veteran's eye diagnoses were less likely than not incurred in or caused by service. The examiner also provided an unprompted opinion stating that the Veteran's eye diagnoses were less likely than not proximately due to or the result of a service-connected disability. The rationale for each opinion was as follows: It is less likely as not (i.e., probability of 50 percent or more) that an eye disorder had its onset during service between December 9, 1965 and December 4, 1968 as this is not supported by medical record review. The [Posterior Intra Ocular Lens] was [diagnosed] in 2007, the corneal guttata in 2019 and the dry eyes in 2014. [sic] Concerning whether the Veteran's eye disability pre-existed service, and was aggravated therein, the examiner opined as follows: It is not clear and [unmistakable] (i.e., undebatable) that the Veteran entered service in December 1965 with an eye disorder as there is no evidence as per STR review to support this. The [Posterior Intra Ocular Lens] was [diagnosed] in 2007, the corneal guttata in 2019 and the dry eyes in 2014. [sic] Turning to whether the elements of the service connection claim are met, the Veteran has several current diagnoses of the eyes. See, e.g. private treatment records; December 2019 VA eye conditions DBQ. Additionally, STRs document in-service treatment for an injury. Thus, the dispositive issue is whether a link exists to connect such eye disability/disabilities to service. The December 2019 and July 2021 VA examiners each opined on that issue. Upon review, the Board affords probative value to the December 2019 VA examiner's opinion, to the extent that the opinion addresses whether any of the Veteran's current eye disabilities were incurred in or caused by service on a direct basis. The December 2019 examiner's negative nexus opinion considered the Veteran's own recitation of the history of his eye disorders. The examiner reviewed the STRs, as evidenced by the examiner's acknowledgement of the in-service laceration below the eye. The examiner also reviewed the Veteran's private treatment records, as reflected by the examiner noting the numerous disorders diagnosed between 2007 and November 2019. Then, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. While the Board acknowledges that the examiner did not complete the sentence at the end of the rationale for the opinion, the examiner checked the box above indicating that the claim condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As such, reading the opinion as a whole, it appears clear that the examiner was providing rationale to support the negative nexus opinion. Importantly, the December 2019 VA examiner did not discuss the private medical records which suggest that the Veteran had pre-service trauma to the right eye. As so, the December 2019 examiner's opinion does not carry probative weight concerning whether any eye disability pre-existed service, and if so, whether such disability was aggravated by service. Next, the July 2021 VA examiner opined against a nexus connecting the Veteran's eye disabilities to service. Upon review, the Board affords probative value to this opinion, as it was formed with consideration for the STRs, the Veteran's statements made at the December 2019 VA examination concerning in-service onset and continuity of symptoms, and the private medical records concerning treatment for eye disabilities. The rationale in support of the opinion focused on an absence of in-service evidence of an eye disorder. Though not specifically citing the Veteran's lay statements that his eyesight began to decline after he was hit in the eye during service in the rationale, the examiner considered those lay statements, as is evidenced by the examiner referencing such assertions in the Evidence Review section of the corresponding July 2021 Medical Opinion DBQ. Accordingly, as the opinion clearly sets out the examiner's conclusions, and the DBQ provides the basis upon which the opinion was formed, the July 2021 VA examiner's negative nexus opinion carries probative weight on the issue of whether any current eye disability is related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. In light of the foregoing, the probative evidence of record reflects that the Veteran's various eye disorders were less likely than not related to service on a direct basis as caused by or incurred in service. However, service connection may still be warranted for a disability that preexisted service and was aggravated therein. As noted above, applicable law provides that every veteran shall be taken to have been in sound condition upon entrance to service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 38 C.F.R. § 3.304(b) states "only such conditions as are recorded in examination reports are to be considered as noted." Here, as no eye disability was noted at the Veteran's enlistment examination, the presumption that the Veteran's eye health was sound at entry into service attaches. While a single private ophthalmologist suggested pre-service trauma to the eye, the Board finds that the examiner's opinion does not rise to the level of clear and unmistakable evidence that the condition pre-existed service, particularly in light of the absence of any evidence of an eye disability upon entrance to service; any evidence of an in-service eye diagnosis or treatment, other than an in-service laceration below the eye which has not been connected to any current disability; a separation examination report which shows that the Veteran denied any current eye condition or history of any eye condition; and the absence of any evidence of treatment for an eye disability for nearly four decades after the Veteran's separation from service. Thus, the Board finds that the evidence does not meet the evidentiary standard necessary to rebut the presumption of soundness, and the Veteran's eyes are considered to have been of sound condition upon entrance to service. As a result, service connection is not warranted for an eye disability that pre-existed service and was aggravated therein, and no further discussion on the issue is necessary. Based on the foregoing, service connection for an eye disability is not warranted on either a direct basis or on an aggravation basis. There is no reasonable doubt to resolve in the Veteran's favor, and the claim is denied. REASONS FOR REMAND 1. Service connection for a bilateral hearing loss disability is remanded. The Veteran's audiometric examination on entry into service was conducted in November 1965. The Veteran's audiometric examination on separation was conducted in December 1968. By way of background, in the 1960s, the military changed its standard for reporting audiograms. Prior to 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Standards Organization American National Standards Institute (ISO-ANSI) standards. Historically, the Board has considered that since the military adopted ISO-ANSI standards as of November 1, 1967, any military audiograms conducted prior to November 1967 would be converted from ASA to ISO-ANSI units. However, recent historical research has revealed that the conversion date of November 1, 1967, may not have been consistent among all military branches. Therefore, unless it can be determined by looking at the audiogram whether it was conducted using ASA or ISO-ANSI standards, the Board's policy is to assume that service department audiometric test results prior to January 1, 1967, were reported in ASA standards, and that audiometric test results since December 31, 1970, were reported in ISO-ANSI standards. For the period between January 1, 1967 and December 31, 1970, the Board will consider the data under both ASA and ISO-ANSI standards unless the standard used is clearly indicated, relying on the unit measurements most favorable to the Veteran's appeal. The VA uses a system to convert ASA units to ISO-ANSI units that adds 15 dB to 500 Hz, 10 dB to 1000, 2000, and 3000 Hz, and 5 dB to 4000 Hz. Therefore, the Veteran's entrance examination from 1965 needs to be converted to ISO-ANSI units. The Veteran's separation examination was done during the period when it was unclear whether such thresholds were recorded using ASA units or ISO ANSI units, and as such the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. In this case, the converted results are the most favorable to the Veteran. In light of the above, the November 1965 examination at enlistment showed the following results in ISO-ANSI units, in decibels (dB): HERTZ 500 1000 2000 3000 4000 RIGHT 75 55 50 30 35 LEFT 35 15 10 10 5 The December 1968 audiometric examination at separation showed the following results in ISO-ANSI units, in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 20 15 LEFT 35 20 20 15 Neither VA examiner considered the converted audiometric results, and as such, remand is required for a new VA opinion. The Board notes that for pre-existing hearing loss to be "noted" upon entry, the entrance auditory examination must show hearing loss that rises to the level of a disability under VA law. See McKinney v. McDonald, 28 Vet. App. 15, 29 (2016). 2. Service connection for tinnitus is remanded. The Veteran's claim for tinnitus is inextricably intertwined with his claim of entitlement to service connection for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Development undertaken for the Veteran's bilateral hearing loss claim will bear directly on whether the Veteran is entitled to service connection for tinnitus. Therefore, a decision on this matter is deferred pending development on the bilateral hearing loss claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner regarding the nature and etiology of the Veteran's bilateral hearing loss. The claims file, including a copy of this Remand, must be made available to the examiner for review. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the record, the examiner is asked to provide a response to the following (the opinion must be supported by rationale): Right Ear: The examiner should address the November 1965 audiometric testing on enlistment, which notes hearing loss for VA purposes. The examiner should offer an opinion as to whether this is a valid representation of the Veteran's hearing on entrance into service. If the examiner finds that entrance examination is valid, he/she should answer the following question: (a.) Is it at least as likely (a 50 percent or great probability) that the Veteran's right ear hearing loss was aggravated (i.e. permanently worsened) during service? If the examiner finds that entrance examination is not a valid representation of the Veteran's hearing on entrance into service, he/she should answer the following question: (a.) Is the Veteran's right ear hearing loss at least as likely as not (a 50 percent or greater probability) related to service? Left Ear: (a.) Is the Veteran's left ear hearing loss at least as likely as not (a 50 percent or greater probability) related to service? Tinnitus: (a.) Is the Veteran's tinnitus at least as likely as not (a 50 percent or greater probability) related to service? (Continued on the next page) A detailed explanation is required to support the opinions. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Norah Patrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.