BVA9500831 DOCKET NO. 92-23 544 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama. THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for residuals of burn injuries to the eyes. 3. Entitlement to an increased (compensable) evaluation for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from February 1953 to July 1956, from November 1958 to October 1963, and from June 1967 to December 1975. This matter arises from a March 1992, rating decision in which the Detroit, Michigan regional office (RO), denied entitlement to service connection for a back disability, and residuals of an eye injury, and established a noncompensable evaluation for bilateral hearing loss disability. Due to a change in the veteran's address, the claims folder was transferred to the Montgomery, Alabama RO. A hearing was held before a member of the Board of Veterans' Appeals (the Board) in March 1993, that member of the Board has since retired. In July 1993, the Board remanded the case to the RO in order to afford the veteran an ophthalmology examination. In a letter, dated in November 1994, the veteran was told that the Board Member who conducts a hearing on appeal must participate in any decision made on that appeal. Therefore, he had a right to another hearing by a Member of the Board since the Member who conducted the hearing was no longer available to participate in the decision. He was also told that the Board had a complete transcript of the earlier hearing and that a decision would be made on the appellate record; however, he had a right to another hearing. He was instructed to respond within 30 days to the letter. No timely response was received. We will accordingly proceed on the record as constituted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he began experiencing low back pain after he broke his jaw in a parachute jump during service. He asserts that he was treated during service by a civilian doctor and chiropractor for back pain, and that he has continued to experience low back pain since 1960. He also asserts that he developed impaired vision as the result of two eye injuries during service. The first occurred while he was welding with insufficient eye protection, the second occurred when he burned his eyes and had to wear eye patches. He also asserts that he is experiencing increasing hearing loss. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the grant of service connection for a back disorder, residuals of burn injuries of the eyes, or an increased (compensable) evaluation for bilateral hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for an equitable resolution of this case has been secured. 2. A low back disability was not demonstrated during service or for many years thereafter, and cannot be related to service. 3. An acquired eye disability for which service connection can be granted has not been demonstrated since service. 4. The veteran has level IV hearing loss disability in the right ear and level I hearing loss disability in the left ear. CONCLUSION OF LAW 1. A low back disability was not incurred in or aggravated by active service, and arthritis of the lumbosacral spine may not be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. An acquired eye disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. An increased (compensable) evaluation for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, 4.85, Diagnostic Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107. In this regard we note that he has submitted evidence in support of his claims which renders them plausible. The Board also finds that the Department of Veterans Affairs (VA) has complied with its obligation to assist him with the development of those claims under the same code provision. The veteran, through his representative, has contended that VA did not comply with its obligation to assist him in that he was not afforded an adequate ophthalmologic examination. The veteran was afforded an examination by a private examiner for VA in December 1993. The report of the examination is rather brief, but it is sufficient to render a decision. The only reported abnormality was a myopic astigmatism, which by definition is a form of refractive error, correctable to 20/20 in each eye. VA cannot grant service connection for refractive error. 38 C.F.R. § 3.303. The veteran has also contended that this case should be remanded to afford him an opportunity for an audiologic examination. However, the veteran did have such an examination in December 1991, and there is no clinical evidence of a change in his disability since that time. I. Low Back Disability Although the veteran testified at the hearing on appeal, that he began experiencing low back pain as early as 1960, that he was treated by a civilian chiropractor and doctor, and that he has continued to experience such pain up to the present, the service and post service medical records do not document such a history. The service medical records show no complaints referable to the low back, despite the fact that the veteran was treated for other conditions on numerous occasions, had regular periodic examinations, and was given the opportunity to report his medical history on a number of occasions. Although he testified that he did not receive a thorough examination at the time of his separation from service, this does not explain why he did not report a back disability in the report of medical history completed for separation from service. It should be noted that the veteran did report other disabilities at the time of his separation from service. The veteran has consistently attributed the onset of back pain to a jaw injury reported in the service medical records. However, his history of this injury has not been consistent, nor does it agree with that reported in the service medical records. On his initial claim received in August 1991, he reported that he incurred a back and jaw injury in a parachute jump in 1962. At the hearing on appeal in March 1993, he testified that the first time that he remembered experiencing low back pain was after injuring his jaw in a parachute jump in 1960. Later during the hearing he testified that his back disability did not begin as the result of any particular injury. The service medical records show that the veteran fractured his mandible in November 1962, when he was assaulted by unknown assailants outside a bar. There were no reports of any back involvement at that time. As noted above, the veteran testified that he had been treated during service by a civilian doctor and chiropractor for a back disability. However, he was apparently unable to supply specific information referable to this treatment, and could recall only that the treatment took place in Alabama. The service medical records do not show this treatment. He did not even report this treatment on his initial claim in 1991. The first clinical evidence of a back disability was on VA examination in December 1991. At that time, an X-ray examination revealed a small spur involving the body of the fifth lumbar vertebra, without other involvement. On the general medical examination, the veteran had a scar in the mid lumbosacral area. He could forward flex 70 degrees, backward extend 30 degrees, flex laterally 35 degrees, and rotate 25 degrees. The examiner diagnosed residuals of a lumbar laminectomy, although there was no reported history of such surgery during the examination, nor did the X-ray examination show such residuals. As to the contention that the veteran lost two inches of height in service as a result of jumping from airplanes which caused his back disability, it should be noted that the veteran's height on routine examinations in July 1960 was 70 inches; in October 1963, it was 70 1/2 inches; and in February 1969, it was 71 inches. On examination for separation from service in September 1975, his height was 69 inches, but this finding has never been linked to a back disability by any medical professional nor has it been attributed to any specific disorder rather than variations in the manner in which the veteran was measured. The record consists on the one hand of various sometimes inconsistent contentions made by the veteran, and on the other hand of a clinical record which seems to contradict, or simply not support those contentions. The failure of the veteran to report a back disability anywhere in the service medical records, despite many opportunities to do so; the silent clinical records; and the inconsistencies in the veteran's history; weigh the evidence against the grant of service connection for a low back disability. II. Residuals of Eye Injuries The service medical records do show that the veteran experienced two eye injuries during service. In March 1960, he was hospitalized with severe uveitis after welding without adequate eye protection. There were no reports of uveitis after 1960. This injury apparently did not result in a loss of visual acuity inasmuch as his visual acuity was reported to be 20/20 on examinations in July 1960, October 1963, June and September 1967, February 1969, and September 1970. The second injury occurred in March 1975, when he reportedly burned his eyes while welding in his off duty time. On examination he was found to have metal particles in his eyes. No scratches were seen and he was given eye patches. No ongoing treatment was reported. This injury also does not appear to have resulted in a loss of visual acuity, since decreased visual acuity was initially reported prior to this injury. On examination in March 1972, his visual acuity was 20/25-2 for distant vision in both eyes. His near vision was reported to be 20/20 correctable to 20/20 in both eyes. He was noted to have a mixed astigmatism of both eyes. On examination for separation from service in September 1975, the veterans distant vision was 20/40 in the right eye and 20/20 in the left. His distant vision was either 20/20 or 20/70 in the right and 20/20 in the left. The veteran was also reported to complain of blurred vision among other symptoms in August 1960. There were no further reports of this symptom during service. Heterophoria was noted on several examinations during service, but was not reported anywhere in the record subsequent to March 1972. Neither of these conditions has been documented since service. The only post-service clinical record referable to the eyes consists of the aforementioned examination for VA in December 1993. As previously noted, that examination reported only the presence of myopic astigmatism, or a refractive error, a condition for which service connection cannot be granted. The record does show a number of acute eye symptoms and two eye injuries during service. The symptoms were not shown to be chronic, nor is there any showing that the eye injuries resulted in chronic disability. Such a showing is necessary for a grant of service connection. 38 C.F.R. § 3.303. The only relevant post service evidence shows a condition for which service connection cannot be granted. The Board must conclude that the weight of the evidence is against the grant of service connection for residuals of eye injuries. III. Hearing Loss Disability Service connection for bilateral sensorineural hearing loss disability, has been in effect at a noncompensable level since August 1990. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and Part 4, Diagnostic Codes 6100 to 6110 (1993). On the authorized audiological evaluation in December 1991, pure tone thresholds, in decibels, were as follows: Hertz 1,000 2,000 3,000 4,000 Average Right 20 65 60 70 54 Left 20 60 65 65 53 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 92 percent in the left ear. These results equate to level IV hearing loss in the right ear and level I hearing loss in the left ear. Under the provisions of Diagnostic Code 6100, such hearing loss warrants a noncompensable evaluation. Although the veteran has reported a number of subjective complaints, his level of hearing loss disability is evaluated under the rating schedule at only a noncompensable level, regardless of these complaints. The rating schedule also does not provide for an increased evaluation based on the use of hearing aids. In reaching our decision in this case, we have considered all the provisions of Chapters 3 and 4, 38 C.F.R. (1993). In particular, we have considered the provisions of 38 C.F.R. § 3.321 as those provisions apply to extraschedular evaluations. However, his disability has not required any, let alone frequent, hospitalizations, nor has it been shown to markedly interfere with his employment. In fact, the veteran's testimony at the hearing on appeal suggests that it played no role in his employment as a truck driver, prior to stopping that employment for reasons unrelated to his hearing loss disability. There are no other factors which would render impractical the application of regular schedular criteria. We also do not find that any of the other provisions of Chapter 3 and 4, of 38 C.F.R.(1993) would provide a basis for granting a compensable evaluation for the veteran's bilateral hearing loss disability. ORDER Service connection for a low back disorder, residuals of eye injuries, and an increased (compensable) evaluation for bilateral hearing loss disability are denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.