Citation Nr: 21021185 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-35 228 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for minor opacity of right eye cornea is granted. Entitlement to service connection for an eye disability, other than a left eye corneal scar, bilateral cataracts, and minor opacity of right eye cornea, is denied. REMANDED Entitlement to service connection for cataracts is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss manifested more than one year after service and is not etiologically related to an in-service event, injury, or disease. 2. The Veteran’s minor opacity of right eye cornea is the result of service. 3. The Veteran does not have an eye disability, other than left eye corneal scar, cataracts, and minor opacity of right eye cornea, that is etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for minor opacity of right eye cornea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an eye disorder, other than left eye corneal scar, cataracts, and minor opacity of right eye cornea, have not been met. 38 U.S.C. §§ 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 1980 to January 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision by a Department of Veterans Affairs (VA) regional office. In March 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The case was remanded by the Board in September 2019 and the agency of original jurisdiction substantially complied with all the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Bilateral hearing loss The Veteran asserts her exposure in service to industrial and shipyard noise has caused 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 of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 Veteran has a current bilateral hearing loss disability. See, e.g., November 2020 VA Hearing Loss and Tinnitus Examination. She repaired, maintained, and installed equipment on United States Navy vessels with exposure to noise from generators, engines, tools, hydraulics, and weapons. In service noise exposure is conceded. The remaining question is whether the current hearing loss disability is related to service. The Veteran’s entrance audiological examination occurred in June 1979 and the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 5 LEFT 15 5 5 0 10 The Veteran’s hearing was tested multiple times in service, including November 1982, May 1983, January 1984, June 1985, June 1986, and May 1987, with similar results, i.e., at all relevant thresholds the pure tone threshold results were 20 decibels or less indicating normal hearing. Service treatment records show no complaints, diagnosis, or treatment related to hearing loss. At the January 1989 separation examination, the Veteran reported having had hearing loss, but testing revealed normal hearing. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 0 0 LEFT 10 0 10 10 10 A bilateral hearing loss disability is not shown by medical evidence until many years after the Veteran’s separation from service. At an annual examination performed in July 1988 the Veteran reported having had hearing loss, but testing revealed normal hearing. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 10 0 10 10 10 A Costco Hearing Aid Center report from June 2012 shows pure tone thresholds as follows. HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 10 LEFT 40 30 50 60 75 In an October 2013 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 15 LEFT 15 20 15 15 15 The VA examiner found that use of the speech discrimination scores was not appropriate. The examiner opined that the Veteran did not have hearing loss resulting from military service. In support of this conclusion, the examiner noted that pure tones were within normal limits and there was no evidence to support acoustic trauma in the service records. In a November 2020 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 35 45 35 LEFT 30 30 25 30 40 Speech discrimination scores were 76 percent in the right ear and 88 percent in the left ear. As sensorineural hearing loss is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of sensorineural hearing loss is not shown, in-service incurrence of sensorineural hearing loss cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). While the Veteran reported experiencing hearing loss to examiners at separation and shortly after separation, hearing testing was performed at those times and showed no hearing loss. The diagnostic tests for hearing are afforded more probative weight regarding the presence of hearing loss as the testing results are objective and designed for determining if hearing is abnormal as opposed to subjective reports that hearing may be diminished. Thus, there is no continuity of sensorineural hearing loss traced back to service. While the hearing loss is not presumed related to service, service connection could still be granted if the evidence shows the hearing loss is related to an in-service event, injury, or disease. In connection with the November 2020 VA examination, the VA examiner interviewed the Veteran and reviewed the pertinent medical history. The examiner concluded that the Veteran’s hearing loss was not related to her service. In support of this conclusion, the examiner explained that separation audiogram was within normal limits and, after comparing her entrance examination and separation examination, there were no permanent threshold shifts. The examiner also found it significant that the October 2013 examination reported hearing sensitivity within normal limits. Those results suggest that the current hearing loss came on more than 23 years after her separation from the Navy. Citing a study by the Institute of Medicine, the examiner noted there is insufficient evidence to support the onset of noise related hearing loss years or decades after the cessation of exposure. While the examiner did not discuss the private 2012 test suggesting left ear hearing loss, the Board interprets the VA examiner’s report as concluding that a significant length of time between noise exposure and the onset of hearing loss, as well as the absence of threshold shifts during service, make it unlikely the Veteran’s hearing loss began during or is related to service. Notably, the examiner’s comment about an absence of hearing loss for years or decades holds true regardless of whether the hearing loss began in 2012 or 2020. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include her assertions that her hearing loss is related to service. As the Veteran is not shown to have medical education or experience, she is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., diminished hearing; (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). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection for hearing loss is denied. 2. Eye disability In September 1982, the Veteran was treated for a corneal abrasion in the left eye and then a few days later for a welding arc flash burn affecting both eyes. The Veteran has attributed her eye problems to the September 1982 welding arc flash burn but has also raised her exposure to Freon gas and to radiation from working on submarines and other naval vessels. Her service treatment records indicate she was exposed to Freon gas in May 1987. After the welding arc flash, the Veteran received treatment periodically for eye symptoms usually diagnosed as keratitis. The service treatment records contain a record monitoring occupational exposure to ionizing radiation from April 1983 to April 1984, but the film badges did not detect any exposure to ionizing radiation. In the September 2019 decision, the Board granted service connection for a left eye corneal scar. As a September 2013 VA examiner did not provide an opinion as to whether other eye disabilities were related to service, the Board remanded the claim ordering a new VA examination and opinion. The Veteran presented for a VA examination in November 2020, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner determined that the Veteran has bilateral staphyloma posticum, bilateral “PVD/vitreous degeneration,’ minor opacity of the right eye cornea, bilateral intraocular lens, and bilateral degenerative myopia. The Board notes “PVD” stands for “posterior vitreous detachment.” In addition, the intraocular lens refers to the lens implants the Veteran received after cataract surgery in July 2013. The issue of service connection for cataracts is being remanded and discussed in the next section of this decision. The Veteran reported floaters for several years worsening in the last 7-8 years. She noted the floaters after cataract surgery. She has been told she has vitreous degeneration which results in current visual symptoms such as a blur that goes in and out and the floaters in her line of sight. She cannot work on computers due to symptoms and reading paper copy is also difficult. She limits her driving and does not drive at all at night. Uncorrected, her right eye visual acuity was 15/200 and her left was 20/200 for distance and the right eye was 20/40 and the left 20/70 for near vision. On physical examination, the examiner noted her service-connected corneal scar as well as peripapillary atrophy in the optic disc. The macula was normal. She had posterior vitreous detachment and syneresis in the vitreous area of her eyes. In the periphery, she had bilateral staphyloma. She also had patchy atrophy post pole into the arcades of the right eye but the patch atrophy throughout in the left eye. While the Veteran had visual field contraction, it did not result in loss of vision field. The examiner determined the Veteran’s decreased visual acuity was due to staphyloma posticum and vitreous degeneration. Any decrease in the Veteran’s visual acuity was not attributable to a corneal condition. The examiner found the staphyloma is due to degenerative myopia and vitreous degeneration. The VA examiner stated the Veteran’s posterior vitreous detachment with significant vitreous degeneration, degenerative myopia with staphyloma, and retinal atrophy are in the posterior segment of the eye. The signs in the Veteran’s posterior segment of the eye are consistent with degenerative myopia which is not known to be caused by welding arc flash burns, freon gas exposure, or radiation. According to the examiner, any damage or effect from Freon gas or a welding arc burn would only damage the anterior eye segment. It is rare for a welding arc burn to cause damage to the posterior segment of the eye. When this does occur, signs are typically confined to one particular area of the retina and not scattered throughout as seen in the Veteran. As to any potential radiation exposure, the examiner stated there is no evidence that radiation causes these conditions. However, the VA examiner determined the Veteran’s minor opacity of right eye cornea is at least is at least as likely as not due to service. The VA examiner explained that the condition was noted in the service treatment records. The VA examiner acknowledged the Veteran also developed cataracts which have been removed and replaced by intraocular lens implants. Again, a claim for service connection for cataracts is being remanded. The Board finds the November 2020 VA opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. As the VA examiner has determined that the Veteran has minor opacity of right eye cornea attributable to service, service connection is granted for that disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The most probative evidence weighs against a finding that the other eye disabilities, including posterior vitreous detachment/degeneration, degenerative myopia with staphyloma, and retinal atrophy, are service-related. These disabilities were not shown during service and the VA examiner explained why they are unrelated to service. The Board has considered the Veteran’s statements, to include her assertions that her eye symptoms began during service. In this regard it is noted that the Veteran is now service-connected for a disability in each eye. As a lay person, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Her lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the Board concludes that service connection is warranted for minor opacity of right eye cornea. However, the preponderance of the evidence is against finding that any other eye disability, exclusive of her now service-connected eye disabilities and cataracts, is related to service. Service connection for an eye disability other than left eye corneal scar, cataracts, and minor opacity of right eye cornea is denied. REASONS FOR REMAND Service connection for cataracts In December 2020, the VA examiner did not offer an opinion as to the etiology of the Veteran’s cataracts. Instead, the examiner noted that the cataracts had been removed and replaced with intraocular lenses. For purposes of VA benefits, a current disability includes a disability present at any time since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the cataract surgeries occurred after the claim was filed. As a result, an opinion as to whether the cataracts were related to service is still necessary. The matter is REMANDED for the following action: 1. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s cataracts had their onset during service or were otherwise related to an in-service injury, event, or disease, to include a welding arc flash burn and freon gas exposure. The Board understands that the Veteran is currently pseudophakic; however, an opinion is sought as to the etiology of the cataracts that were removed. In offering the opinion, the examiner must specify whether the cataracts were posterior subcapsular cataracts. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 2. If the VA eye examination or other records suggest the Veteran has posterior subcapsular cataracts, the procedures for claims based on exposure to ionizing radiation should be followed as detailed in 38 C.F.R. § 3.311. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.