Citation Nr: 21015937 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-26 132 DATE: March 18, 2021 ISSUES 1. Entitlement to service connection for bilateral hearing loss (BHL) disability. 2. Entitlement to service connection for an eye disability. ORDER Entitlement to service connection for BHL disability is denied. REMANDED Entitlement to service connection for an eye disability is remanded. FINDING OF FACT The Veteran does not have a BHL disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for BHL have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from February 2001 to February 2004 and from October 2006 to October 30, 2009. The Veteran had dishonorable service from October 30, 2009, to January 19, 2011; thus, VA benefits may not be awarded based on the Veteran’s period of service from October 30, 2009, to January 19, 2011, and that period of active duty service will not be discussed further. See 38 U.S.C. § 5303 (West 2014); 38 C.F.R. § 3.203 (2017). This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Veteran testified before the undersigned during a January 2020 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in March 2020, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives in regards to the claim for service connection for BHL decided below, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).   During the pendency of this appeal, service connection for posttraumatic stress disorder; cannabis use disorder was granted in a September 2020 rating decision. As such, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran’s claimed hearing loss did not manifest to a compensable degree within one year of separation from service. In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in September 2020 that did not show a current BHL disability for VA compensation purposes. That is, his Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 15 20 15 25 35 24 LEFT 10 20 10 20 20 18 The speech recognition scores were 94 percent in the right ear and 96 percent in the left ear. In the instant case, the evidence does not establish the first Hickson element, a current disability, with respect to the Veteran’s alleged BHL. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection must fail because the most probative medical evidence does not indicate current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board notes that the Veteran is competent to report his symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board must still evaluate the credibility and probative value of the Veteran’s statements. Moreover, while lay statements are sufficient to describe what witnesses observe, such as hearing loss, lay statements are not competent to diagnose hearing loss disability or the extent of impairment as set forth in VA regulations. See e.g., Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); Charles, 16 Vet. App. 370, 374; Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). REASONS FOR REMAND The Veteran contends that service connection is warranted for an eye disability as it had onset in or is related to his honorable active duty service, to specifically include his combat service with exposure to improvised explosive device (IED) blasts. The Veteran’s DD Form 214 shows that he served as an infantryman with numerous decorations to include the Iraq Campaign Medal with Three Campaign Stars, Valorous Unit Award, Global War on Terrorism Service Medal, and Combat Infantryman Badge. His DD Form 214 shows that he served in Iraq in an imminent danger pay area during time that included his honorable service. Service treatment records also show that in January 2008 a diagnosis of left eye corneal ulcer. Therefore 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Notwithstanding, the Federal Circuit explained that “[e]ven when the section 1154(b) combat presumption applies, a ‘veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.’“ Id. As such, in-service eye injuries are conceded. In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in September 2020 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's 2008 left eye corneal ulcer resolved without complication; there was no chronic disability associated with this resolved condition. The examiner stated that the Veteran did have a current diagnosis of dry eye. The examiner stated that service treatment records were negative for the condition, and there was not enough information to determine if the condition was service related. The examiner stated that the Veteran also presented with longstanding vitreous syneresis (floaters); service treatment records documented the Veteran's complaint of floaters but no documented diagnosis. The examiner stated that vitreous floaters in the absence of retinal holes and tears was a benign condition with no visual impact. In this case, the Board finds that a remand is warranted to obtain an addendum opinion to address whether the diagnosed dry eyes and vitreous syneresis had onset in service or are otherwise etiologically related to service with due consideration given to the fact that in-service eye injuries are established by virtue of the combat presumption, despite no documentation of the same. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the September 2020 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion.  The electronic claims file must be made available to and reviewed by the examiner.  An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any dry eyes and vitreous syneresis diagnosed during the pendency of this appeal had onset in service or are otherwise etiologically related to service, to include the aforementioned January 2008 diagnosis of left eye corneal ulcer. In addressing this question, the examiner is advised that in-service eye injuries are established by virtue of the combat presumption, despite no documentation of the same. Failure to concede in-service eye injuries and the resulting disabilities will render the opinion inadequate. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the current limits of medical knowledge. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.