Citation Nr: 21030832 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-10 287 DATE: May 19, 2021 ORDER Entitlement to service connection for loss of vision, right eye, is denied. Entitlement to service connection for loss of vision, left eye, is denied. Entitlement to service connection for allergies is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for residuals of a mouth injury is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran has not had a current diagnosis for a right eye condition during the period on appeal or recent thereto. 2. The preponderance of the evidence indicates that the Veteran has not had a current diagnosis for a left eye condition during the period on appeal or recent thereto. 3. The preponderance of the evidence is against finding that the claimed condition of allergies arose during or as a result of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of vision, right eye, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for loss of vision, left eye, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for allergies have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to December 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded these issues for additional development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran testified before a different Veterans Law Judge (VLJ) at a September 2016 hearing before the Board of Veterans' Appeals (Board). In February 2021, VA sent the Veteran a letter informing him that the VLJ who had conducted his hearing was no longer available. The letter informed the Veteran of his right to request another Board hearing. The Veteran did not respond within 30 days of the date of the letter; therefore, the Board will assume he does not want another hearing and will proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection: a Veteran's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while in active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). 1. and 2. Entitlement to service connection for loss of vision, right eye and entitlement to service connection for loss of vision, left eye The Veteran asserts that he experiences loss of vision in both eyes that arose during or as a result of his active service. The Veteran's service treatment records (STR) reflect normal visual acuity upon entrance into active service. See April 1975 entrance medical examination and Report of Medical History. The Veteran's visual acuity had decreased by the time of his pre-separation medical examination in December 1983; however, his STRs are otherwise negative for complaints, treatment, or diagnosis for any eye condition or injury. There is no medical evidence of complaints, treatment, or diagnosis of an eye condition in the 12-month period immediately following separation from active service. In August 2011, the Veteran filed a claim for service connection for loss of vision in his eyes. During an October 2012 VA examination for eye conditions, the VA examiner found that the Veteran had never been diagnosed with an eye condition. The Veteran reported that he was unsure if he had ever been diagnosed with an eye condition. The examiner noted that while the Veteran's STRs reflected decreased visual acuity by the time of separation from service, this was consistent with normal changes in vision due to the ageing process. Aside from a decrease in visual acuity, there was no diagnosis for any condition because there was no pathology to render a diagnosis. The examiner opined that the claimed condition was less likely than not related to service, as based on the medical evidence of record, there was no condition or diagnosis directly related to or aggravated by military service. During the Veteran's September 2016 Board hearing, the Veteran asserted that a bilateral eye condition may have been caused by exposure to chlorine water. The VA and private medical treatment records and has found no evidence of any diagnosed eye condition. The Veteran's VA treatment records indicate generally healthy eyes, and no medical opinion supports the Veteran's claim. The Veteran has consistently asserted that his loss of vision or an eye condition arose due to his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the October 2012 VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against finding that the Veteran has had a diagnosable eye condition at any time or that his loss of visual acuity arose during or as a result of his active service. There is no documented evidence of a diagnosed eye condition. While the Veteran's STRs reflect a decreased in visual acuity between entrance into and separation from active service, they are otherwise silent for any eye condition, complaints, or injuries. Additionally, the October 2012 VA examiner indicated that the Veteran did not have a diagnosable eye condition and that any decrease in visual acuity was most consistent with normal aging. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claims. Accordingly, the claims for service connection for loss of vision in each eye are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for allergies The Veteran asserts that his current allergies or related condition arose during or as a result of his active service. The Veteran's STR are negative for complaints, treatment, or diagnosis of allergies or related conditions. The Veteran's VA treatment records are negative for complaints, treatment, or diagnosis of allergies or related conditions in the 12-month period immediately after separation from active service. His VA and private treatment records are negative for medical opinions supporting the Veteran's claim. In August 2011, the Veteran filed a claim for service connection for allergies. March 2013 VA treatment records reflect the Veteran being treated for allergic rhinitis. During the Veteran's September 2016 Board hearing, the Veteran testified that he was unclear about when his allergies began, but he believed they began during his time stationed in North Carolina. During the Veteran's October 2020 VA examination for sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx, the VA examiner found that he had been diagnosed with allergic rhinitis since 2017. In an accompanying medical opinion, the examiner opined that the condition was less likely than not related to active service. The examiner's rationale noted that lack of evidence of in-service treatment for the claimed condition and the fact that the first evidence of the condition was 33 years after discharge from active service. The examiner reviewed the Veteran's Board hearing testimony, but they found no evidence of records that supported a positive medical opinion or of an earlier diagnosis. The Veteran has consistently asserted that allergies arose during or due to his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the October 2020 VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against finding that the Veteran's claimed condition arose during or as a result of his active service. The Veteran's STRs are negative for evidence of the claimed condition during service. The Board also notes that the Veteran did not file a claim for service connection until more than 25 years after separation from active service. Additionally, the first medical evidence of allergic rhinitis is from March 2013 VA treatment records. The fact that there were no records of any complaints or treatments involving the Veteran's allergies for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran's current allergic rhinitis to his active duty service. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, service connection for allergies, or a related condition, is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he experiences bilateral hearing loss as a result of his active service. See September 2016 Board hearing. During the Veteran's November 2011 VA examination for hearing loss, the VA examiner opined that his in-service noise exposure was sufficient to cause his now service-connected tinnitus; however, at the time of the examination, the Veteran's hearing loss was not severe enough to qualify as a disability for VA purposes. The Board notes that the Veteran was last afforded a VA examination for his hearing loss almost a decade ago. The Veteran's hearing loss may have worsened since his last VA examination, and the November 2011 VA examiner acknowledged the Veteran's in-service noise exposure. Consequently, the Board finds that this claim must be remanded for a new VA examination on the current severity and etiology of the Veteran's hearing loss. 2. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran asserts that his current diabetes mellitus arose during or as a result of active service, including due to asserted in-service exposure to herbicides. See November 2020 VA treatment record. The Board notes that while the Board remanded for additional record development in September 2017, including records that would corroborate the Veteran's claims of in-service exposure to herbicides; however, the RO was unable to locate any records that confirmed the Veteran's claim. See, e.g., October 2018 Deferred Rating Decision; July 2020 VA Memorandum. The Veteran has also not been afforded a VA examination to address the nature and etiology of his claimed condition. Accordingly, this claim must be remanded for a VA examination. 3. and 4. Entitlement to service connection for sleep apnea and entitlement to service connection for a heart disorder are remanded. The Veteran asserts that his claimed heart condition and current sleep apnea arose during or as a result of his active service, including due to in-service herbicide exposure or as secondary to diabetes mellitus. The Veteran has not been afforded a VA examination on the nature and etiology of either condition. Additionally, a decision on the claim for service connection for diabetes could affect the decision on these claims, they are inextricably intertwined and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to service connection for residuals of a mouth injury is remanded. The Veteran asserts that he sustained a mouth injury during active service and experiences chronic residuals of this injury. See September 2016 Board hearing. The Veteran has not been afforded a VA examination on the nature and etiology of the claimed condition. Accordingly, this claim must be remanded for additional development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to evaluate the nature and etiology of his bilateral hearing loss. The entire claims file, including a copy of this remand, should be made available to and reviewed by the examiner. The examiner should determine whether the Veteran has hearing loss sufficient to qualify as a disability for VA purposes under 38 C.F.R. § 3.385. If hearing loss is confirmed, the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss had its onset during service or is otherwise related to his active military service. In setting forth this opinion, the examiner should take into consideration the Veteran's account of noise exposure while in service and the November 2011 VA examination report. The examiner must provide any and all opinions as to the etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 2. Obtain an opinion from an appropriately qualified medical professional to determine the nature and etiology of the Veteran's diabetes mellitus. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. The need for further examination, or telehealth interview, is left to the discretion of the examiner. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes mellitus began during or as a result of his active service, including as due to asserted in-service herbicide exposure. A complete rationale must be provided for all conclusions. 3. Obtain a VA examination with a qualified medical professional regarding the nature and etiology of the Veteran's sleep apnea. The claims file should be made available to the examiner. The examiner is asked to address the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during or is otherwise related to any event or injury during active duty, including asserted herbicide exposure in Southwest Asia and as secondary to the Veteran's diabetes mellitus. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and informationwhether found in the record or outside the recordsupport the opinion, and (2) explain how that evidence justifies the opinion. It is not sufficient to state that herbicide exposure has not been verified, so presumptive service connection is less likely than not. A complete rationale must be provided for all conclusions. 4. Obtain a VA examination with a qualified medical professional regarding the nature and etiology of the claimed heart condition. The claims file should be made available to the examiner. The examiner is asked to address the following: (a.) Provide a current (at any point throughout the appeal) diagnosis for any mouth injury residual condition; (b.) If the Veteran does not now have, but previously had, any diagnosed disorder, indicate when that disorder resolved; (c.) For each diagnosed disorder, is it at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during or is otherwise related to any event or injury during active duty. In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and informationwhether found in the record or outside the recordsupport the opinion, and (2) explain how that evidence justifies the opinion. The Board recognizes the practical difficulties of scheduling examinations in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for their examinations. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.