Citation Nr: 21073856 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-52 986 DATE: December 10, 2021 ORDER A temporary total disability rating based on hospitalization is dismissed. Service connection for a bilateral retinal disorder is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a speech disorder is remanded. FINDINGS OF FACT 1. At a June 2020 hearing, the Veteran expressed his desire to withdraw the appeal regarding entitlement to a temporary total disability rating based on hospitalization. 2. The Veteran's bilateral retinal disorder was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding a temporary total disability rating based on hospitalization have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a bilateral retinal disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) regional office in August 2017 and April 2018. In June 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is in the claims file. 1. A temporary total disability rating based on hospitalization At the June 2020 hearing, the Veteran expressed his desire to withdraw the appeal regarding entitlement to a temporary total disability rating based on hospitalization. The Board may dismiss any appeal which fails to identify the specific determination with which a veteran disagrees. 38 U.S.C. § 7105. A veteran or their authorized representative may withdraw an appeal as to any or all issues involved at any time before the Board issues a decision. 38 C.F.R. § 19.55. A veteran's verbal withdrawal of an issue on the record at a Board hearing must be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the veteran. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). During the hearing, the undersigned identified the issue the Veteran indicated he wanted to withdraw, and explained the consequences of such a withdrawal to the Veteran. The Veteran affirmed that he wanted to withdraw the temporary total rating issue. The Board finds that the criteria for withdrawal of that issue are satisfied. Accordingly, the appeal regarding a temporary total disability rating based on hospitalization is dismissed. 2. Service connection for a bilateral retinal disorder The Veteran contends he has retinal detachment due to head trauma from fights in service. After careful review, the Board finds that service connection for a bilateral retinal disorder is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(c), refractive error of the eye is a not a "disease or injury" for VA disability compensation purposes. See also 38 C.F.R. § 4.9; Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003). The most probative evidence in this case comes from a January 2018 Compensation and Pension examination with a VA optometrist. The 2018 VA examiner indicated that the Veteran was diagnosed in 2016 with retinoschisis in both eyes and retinal detachment in the right eye. The examiner also indicated that these diagnoses are not congenital or developmental errors of refraction. The Board finds that these diagnoses satisfy the current disability requirement for service connection. The Veteran told the 2018 examiner that he was in a physical altercation in service in 1977. He reported that he was hit and kicked in the head multiple times, sustained black eyes, and needed stitches under his right eye for a laceration. He also reported a longstanding history of a left "lazy eye," as well as flashes and floaters in his vision. These lay statements to the examiner are consistent with the other evidence on file, including the Veteran's June 2020 Board hearing testimony. The Board finds the Veteran's statements about in-service injuries and his subjective symptoms credible. Ultimately, the 2018 examiner determined that the Veteran's disability was less likely than not incurred in or caused by service. The examiner reasoned that retinoschises are not typically associated with a history of eye trauma, according to medical literature, and that the Veteran's retinal detachment is more likely due to the retinoschisis. The examiner explained that the retinal detachment was localized within an area of retinoschisis that was just discovered in 2016. The examiner thus found it unlikely that a physical altercation in 1977 directly caused retinal detachment, as the detachment would have likely progressed since then, causing vision loss. The 2018 examiner clearly considered and discussed not only pertinent medical records, but also the Veteran's lay statements about his in-service injury and his symptoms. See Miller v. Wilkie, 32 Vet. App. 249, 25960 (2020). The examiner provided a well-reasoned medical opinion with clear conclusions and supporting data. The Board finds the examiner's opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence on file that contradicts the 2018 VA medical opinion, or otherwise shows a nexus between a retinal disorder and service. The Board notes that the Veteran is competent as a layperson to report the onset of his subjective symptoms. However, he lacks the expertise needed to competently link his retinal diagnoses to an in-service cause without additional supporting medical evidence. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In other words, his lay statements alone are not sufficient to establish a nexus in this case. In sum, the preponderance of evidence is against service connection for a retinal disorder. As such, the benefit-of-the-doubt rule is not applicable in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal must be denied. REASONS FOR REMAND 3. Service connection for bilateral hearing loss is remanded. The Veteran attributes his hearing loss to noise exposure in service. The Board finds that remand to the agency of original jurisdiction (AOJ) for an addendum medical opinion is warranted. A March 2016 VA Compensation and Pension examination revealed that the Veteran has bilateral sensorineural hearing loss. The 2016 examiner determined that his hearing loss was less likely than not incurred in or caused by service because the Veteran "separated from the service with normal hearing from 500Hz through 6000Hz." However, the examiner provided no other rationale in support of this opinion. Notably, the examiner did not discuss the Veteran's reported history of military noise exposure, even though the same examiner found that his tinnitus was at least as likely as not due to this noise exposure. The 2016 examiner also did not discuss the Veteran's lay statement during the examination that he "crawled through [a ditch or trench during bootcamp] and his head was pushed underwater and he could not hear for a while after that." The Board notes that a September 1975 service treatment record shows that he complained of a left ear earache after being in a ditch during training as a recruit. The Board finds the 2016 VA medical opinion inadequate because the examiner failed to address the Veteran's lay statements, and improperly relied solely on the information in his service treatment records. Miller, 32 Vet. App. at 259-60; see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). An addendum opinion is necessary. On remand, the examiner must clearly consider and discuss the Veteran's lay statements about his history of noise exposure and symptoms during service, including his statements to the March 2016 VA examiner and his June 2020 Board testimony. 4. Service connection for a speech disorder is remanded. At hearing, the Veteran testified that he developed a stutter during bootcamp, which he associated with anxiety. His representative asserted that the claimed speech disorder may be secondary to service-connected posttraumatic stress disorder (PTSD). Remand to the AOJ for an examination is warranted. Non-VA speech therapy records reflect that the Veteran is diagnosed with a fluency disorder. These records also show that he reported having symptoms since service. Additionally, in a June 2020 letter, a VA social worker ("L.P.-A") stated they had witnessed an increase in the Veteran's stuttering while focusing on stressful events and/or trauma-related experiences during counseling sessions. To date, the Veteran has not received a VA examination in connection with his speech disorder claim. The record contains competent evidence of a current disability, evidence of an in-service event or illness, and "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the [Veteran's] service or with another service-connected disability." However, there is insufficient medical evidence on file to decide the claim. As such, an examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran's claimed bilateral hearing loss. Schedule another in-person examination only if the examiner deems one necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner must provide an opinion on the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that bilateral hearing loss was incurred in service, or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that bilateral hearing loss became manifest within one year of separation? If so, what were the manifestations? In particular, the examiner must clearly consider and discuss the Veteran's lay statements about his history of noise exposure and symptoms during service, including his statements to the March 2016 VA examiner and his June 2020 Board testimony. 2. Schedule an examination by an appropriate clinician to determine the nature and etiology of the Veteran's claimed speech disorder. After reviewing the claims file, including this remand, the examiner must provide an opinion on the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that a speech disorder was incurred in service, or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that a speech disorder is proximately due to or the result of the Veteran's service-connected PTSD? (c.) Is it at least as likely as not (50 percent or greater probability) that a speech disorder is aggravated beyond its natural course by the Veteran's service-connected PTSD? In particular, the examiner must clearly consider and discuss the Veteran's lay statements about his history of speech-related symptoms, including his June 2020 Board testimony. The examiner must also clearly consider and discuss the June 2020 letter from "L.P.-A.," VA social worker. 3. Review the medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 4. Readjudicate the Veteran's claims. If either claim remains denied, issue supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return the claims to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.