Citation Nr: 21073820 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-31 570 DATE: December 10, 2021 ORDER Service connection for adenoid removal with a resulting speech condition is denied. Service connection for a bilateral eye condition is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had his adenoids removed, or that he experienced a resulting speech condition at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's bilateral eye condition began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding the Veteran's bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's tinnitus 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 adenoid removal and a resulting speech impairment are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a bilateral eye condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus 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 served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision. In his June 2018 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. The VA sent a letter to the Veteran and his representative in January 2019 informing them of a February 2019 hearing. The letter to the Veteran was returned to the VA in the mail. As a result, the hearing was rescheduled. In August 2021, the Board sent another letter to the Veteran and his representative scheduling a hearing in September 2021, which was not returned. The Veteran did not report for the scheduled hearing and good cause was not submitted to explain such failure. Accordingly, the case will be processed as though the hearing request was withdrawn. 38 C.F.R. § 20.704(d). SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board notes that some of the Veteran's service treatment records and personnel records are unavailable, as they have been deemed destroyed in a fire at the National Personnel Records Center (NPRC). The Board acknowledges VA's heightened duty to assist a claimant where records are deemed fire related or otherwise lost. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Adenoids removal with speech condition The Veteran contends that his adenoids were removed while in service and he has a speech impairment as a result. The preponderance of evidence does not show that the first element required for service connection is met. Therefore, the claim must be denied. An analysis of service treatment records, or post-service treatment records, fails to show that the Veteran had his adenoids removed. While there are multiple records concerning different throat problems in service, including a peritonsillar abscess, tonsillitis, and pharyngitis, no records show that the Veteran had his adenoids removed. As part of his separation examination, he noted that he did not have any ear, throat, or sinus problems, and no abnormalities were noted. These records are also negative for any speech problem associated with a throat condition. The symptoms the Veteran experienced while in service have not been diagnosed as separate disorders or disabilities independent of specific medical causes. There is no medical evidence of record that shows that the Veteran had his adenoids removed or experiences a speech problem as a result. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Bilateral eye condition In this instance, the Veteran satisfies the first element to be service-connected. He had a lamellar hole in his left eye, which was resolved as of February 2018. As of February 2018, he had a lamellar hole in his right eye. He also had imperfect vision in both eyes. There is no evidence showing that the Veteran's eye condition was caused by his time in service. The records show he was prescribed eyeglasses while in service; however, in the absence of any underlying pathology, refractive error in the eyes is considered congenital. 38 C.F.R. § 3.303(c). In May 2004 and May 2006, the Veteran was diagnosed with presbyopia. The record lacks any mention of an in-service event that could have caused the Veteran's eye condition, and he does not identify a cause of his eye disability. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Bilateral hearing loss 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. The Court of Appeals for Veterans' Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. As for a current disability, a November 2016 VA audiological examiner found a current diagnosis of hearing loss, as defined by VA at 38 C.F.R. § 3.385. Therefore, the first element is met. In addition, VA has already acknowledged the Veteran's in-service noise exposure. See March 2018 Informal Conference Report. Therefore, the second element is met. Notably, the Veteran's service treatment records do not include any audiometric tests. Whispered voice testing during his separation examination was normal. There is no evidence that the in-service noise exposure caused the Veteran's hearing loss. Thus, the third element is not met. September 2005 treatment records indicate the Veteran had hearing loss for 12 years, or since approximately 1993. The November 2016 VA examiner stated that without audiometric data from service, the VA examiner could not find a method to establish service connection. Since this data is unavailable, further medical opinion development is not warranted. In March 2018, VA encouraged the Veteran to obtain a private medical opinion concerning his hearing loss; however, no report has been submitted. Thus, there is ultimately no evidence linking the Veteran's hearing loss to an in-service event or disease. The Board considered the Veteran's statements that his hearing loss is service-connected. However, he does not possess any medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., hearing loss; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Here the Veteran did not state that he has had hearing loss since service, and in 2005 said it had been present for about 12 years. There is no medical evidence connecting his time in service to current hearing loss. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Tinnitus The first element required to establish service connection for tinnitus is met. The Veteran reported having tinnitus in February 2004, and he is competent to report that specific diagnosis. That being said, in November 2016 at a VA examination, the Veteran did not report having tinnitus. As for the second element, noise exposure has already been conceded. See March 2018 Informal Conference Report. Nonetheless, the clam is denied because the third element is not met. The preponderance of evidence does not show that the Veteran's in-service noise exposure, caused the Veteran's tinnitus. Thus, the third element for service connection is not met. The Veteran did not report any hearing problems or tinnitus on his separation examination. The Veteran had similar results in the whisper test on both entrance examinations and separation examinations. There is no indication that the Veteran had tinnitus within one year of service. There is no evidence linking the Veteran's tinnitus to an in service event or disease. The Veteran does not claim that tinnitus began while in service. In rendering this decision, the Board acknowledges that the Veteran attributes his tinnitus to in service noise exposure. However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., tinnitus; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). However, he has not done so. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.