Citation Nr: 21025207 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-35 316 DATE: April 27, 2021 ORDER Entitlement to service connection for a hearing loss disorder is denied. Entitlement to service connection for a left eye disorder is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence of record is against finding that the Veteran has had hearing loss disorder at any time during or approximate to the pendency of the claim. 2. The preponderance of the probative evidence of record is against finding that the Veteran has had left eye disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss disorder 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 left eye disorder 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 had active service between January and May 1979. The record indicates subsequent national guard service until 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is included in the electronic claims file and has been reviewed. This case was previously before the Board, most recently in May 2020, when it was remanded for adequate notice of a scheduled VA examinations. The Board finds that there has been substantial compliance with its prior remand directives because the Veteran did appear for the rescheduled VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from 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). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a hearing loss disorder is denied. The Veteran contends he has a current hearing loss disorder related to an active service grenade explosion. He submitted his claim in May 2009. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Other organic diseases of the nervous systems, such as bilateral hearing loss, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland consonant-vowel nucleus-consonant (CNC) test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a qualifying current diagnosis of hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, in this case, the medical evidence of record does not support a functional impact on the Veteran’s ability to work. The October 2020 VA examiner evaluated the Veteran and determined that, while the Veteran experienced subjective symptoms of hearing loss, the Veteran did not have a qualifying diagnosis of hearing loss. The VA examiner opined that what bilateral sensorineural hearing loss that was present on objective testing was less likely than not (less than 50 percent probability) caused by or a result of an event in military service. The VA examiner explained that the Veteran’s hearing was measured to be within normal limits at all test frequencies in each ear on the Veteran’s separation examination. The Veteran had a hearing test in 2009, 30 years post-separation, that showed “normal” thresholds at all frequencies tested. There was no direct evidence to support the Veteran’s claim that his bilateral sensorineural hearing loss was causally related to his military service. Further, despite treatment from May 2009 to February 2021, VA and private records do not contain a qualifying diagnosis of hearing loss. A review of the Veteran’s VA and private treatment records did not show treatment or complaints of hearing loss. On his April 1979 separation examination, there was no evidence of hearing loss for VA purposes, but this examination did not include a word recognition test. April HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 10 15 LEFT 20 10 0 10 10 In December 2004, the Veteran reported one week of left ear pain, but was treated by a dentist, who recommended an extraction of tooth on the left side. In August 2009, the Veteran underwent a VA examination. The Veteran reported tinnitus. For VA purposes, the Veteran’s hearing was considered “normal.” August 2009 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 15 10 10 25 25 96 LEFT 15 10 10 20 20 98 In October 2017, the Veteran testified to worsening hearing loss that caused him problems at work. The Veteran testified having a hard time hearing what people are saying and to repeat themselves because if the Veteran missed something, then the Veteran could end up causing damage to the Veteran’s clients. The Veteran testified to “good” hearing prior to service but hearing problems ever since being exposed to grenade explosion during service. In October 2020, the Veteran underwent another VA examination. The Veteran did not have hearing loss for VA purposes. October 2020 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 20 20 10 25 20 94 LEFT 20 10 10 25 25 96 The Board finds the examinations were adequate for rating purposes. There is no indication that the testing was not performed correctly or the results misinterpreted. While the Veteran believes the Veteran has a qualifying current diagnosis of hearing loss disorder, the Veteran is not competent to provide a qualifying diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence over the Veteran's allegations of the presence of hearing loss for VA purposes. Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the claim of entitlement to service connection for a hearing loss disorder.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b).  The claim is denied. 2. Entitlement to service connection for a left eye disorder is denied. The Veteran contends a current left eye disorder related to an active service grenade explosion. The claim was received in May 2009. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a qualifying current diagnosis of left eye disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, in this case, the medical evidence of record does not support a functional impact on the Veteran’s ability to work. The September 2020 and February 2021, VA audiology and neurology examiners evaluated the Veteran and the medical evidence of record and determined that, while the Veteran experienced subjective symptoms of left eye pain, the Veteran did not have a qualifying diagnosis of a left eye disorder. The September 2020 VA optometry examiner found the Veteran had no eye pain complaints. The Veteran wore glasses as needed and had “20/20” at distance and near with correction. The Veteran had mild starts of cataracts in both eyes, but the September 2020 VA examiner found that cataracts are part of “normal aging.” The February 2021 VA ophthalmology examiner found that the Veteran’s only eye condition was refractive error, not service related, and that tinnitus could have no effect on the eye’s refractive state. The February 2021 VA neurology examiner mostly deferred to the VA ophthalmology examiner on the optometry and eye disability findings and added only that there was no baseline data or evidence of aggravation. Further, despite treatment from May 2009 to February 2021, VA and private treatment records do not contain a qualifying diagnosis of a left eye disorder. During service, a January 1979 optometry screening showed “20/20” vision and did not note any left eye injury. April 1979 separation examination showed a “normal” clinical evaluation of the eyes. In October 2017, the Veteran testified that something hit the left eye after a grenade explosion and hospitalization during service. The Veteran testified that an optometrist once told him that he had something behind his eye that caused his left eye pain and that if he saw a flash that the Veteran should report it. The Veteran reported that tinnitus caused his eyes to water. The Veteran also reported a 1996 assault to the face with a hammer after leaving a bank that worsened with eye watering symptom. The Veteran testified to no eye problems before service, being examined for eye problems during service, and having symptoms prior to the post-service assault. A review of the medical evidence of record did not show treatment or complaints of an eye condition. Between November 2017 and October 2018, the Veteran’s primary care physician at VA noted on physical examination that the Veteran’s extraocular movements were “intact,” and pupils were “equal, round, and reactive to light.” In September 2020, the Veteran underwent a VA examination where he had no complaints. The Veteran reported wearing glasses “as needed” and that the Veteran was “was told to be aware of flashes and floaters but was not sure what the doctor found.” Physical examination showed “20/100” right and “20/50” left distance and “20/100” right and “20/70” uncorrected near acuity. Pupils were round and reactive to light with no defects present. There were “trace” nuclear sclerotic cataracts. The VA examiner found no functional impact on the Veteran’s ability to work. In January 2021, the Veteran underwent another VA examination. The Veteran reported being hospitalized during service for an injury to the left eye but gave no details of the incident. The only long-standing effect or problem the Veteran reported was to wear glasses to see. The Veteran also reported being told by eye doctors if he sees flash in eye should go back to them immediately. Physical examination showed “20/200” right and “20/70” left distance and “20/200” right and “20/100” uncorrected near acuity. Pupils were round and reactive to light with no defects present. The VA examiner found no functional impact on the Veteran’s ability to work. The VA examiner found the only condition was refractive error and found no other diagnosis the Veteran’s medical records or on examination. Neither VA examiner found that the Veteran had any current eye condition other than congenital or developmental errors of refraction. The Board finds these examinations were adequate for rating purposes. The examiners had access to and reviewed the claims file and provided opinions based on the examination with citations to evidence (or the lack thereof) in the record to support the opinions. While the Veteran believes he has a qualifying current diagnosis of a left eye disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence over the Veteran's allegations of the presence of a current left eye disorder. Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the claim of entitlement to service connection for a left eye disorder.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b).  The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel 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.