Citation Nr: 0814578	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-15 308	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection for hearing loss and 
tinnitus.

2.  Entitlement to service connection for actinic and 
seborrheic keratoses, to include as a result of exposure to 
ionizing radiation.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel




INTRODUCTION

The veteran served on active duty from October 1945 to 
February 1947 and from September 1950 to August 1953, 
although only one of these two periods of service has been 
verified.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee.


FINDINGS OF FACT

1.  A diagnosis of bilateral hearing loss is not shown by the 
evidence of record.

2.  A diagnosis of tinnitus is not shown by the evidence of 
record.

3.  The medical evidence of record does not show that the 
veteran's currently diagnosed actinic and seborrheic 
keratoses are related to military service, to include as due 
to exposure to ionizing radiation.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated 
by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 
3.385 (2007).

2.  Tinnitus was not incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).

3.  Actinic and seborrheic keratoses were not incurred in or 
aggravated by military service, and may not be presumed to 
have been so incurred.  38 U.S.C.A. §§ 1110, 1112, 1131, 
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.303, 3.307, 3.309, 3.311 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to 
assist provisions with respect to the veteran's claims.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326 (2007).

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004) (Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) request that the claimant provide any evidence in his 
possession that pertains to the claim.

Prior to initial adjudication of the veteran's claim, a 
letter dated in April 2005 fully satisfied the duty to notify 
provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b)(1); Quartuccio, at 187.  The veteran was aware 
that it was ultimately his responsibility to give VA any 
evidence pertaining to his claims.  These letters also 
informed the veteran that additional information and evidence 
was needed to support his claims and asked him to send the 
information or evidence to VA.  See Pelegrini II, at 120-121.

Since the Board has concluded that the preponderance of the 
evidence is against the claims for service connection, any 
questions as to the appropriate disability ratings or 
effective dates to be assigned are rendered moot, and no 
further notice is needed.  See Dingess v. Nicholson, 19 Vet. 
App. 473 (2006).  In any event, the RO provided him Dingess 
notice in the April 2006 statement of the case (SOC) and he 
did not provide any additional evidence in response to the 
SOC to warrant readjudicating his claim and providing another 
SSOC.  See, e.g., Medrano v. Nicholson, 21 Vet. App. 165, 172 
(2007) (where after VA provides a content-compliant VCAA 
notice (on all requisite notice elements) - albeit in an 
untimely manner - and a claimant subsequently informs VA 
there is no further evidence to submit, the failure by the RO 
to conduct a subsequent readjudication is not prejudicial 
because the result of such a readjudication would be no 
different than the previous adjudication).

The Board also concludes that VA's duty to assist has been 
satisfied.

The veteran's VA treatment records are in the file and 
private medical records identified by the veteran have been 
obtained to the extent possible.  The veteran has at no time 
referenced available outstanding records that he wanted VA to 
obtain or that he felt were relevant to his claim.

In situations, as here, where the service medical records are 
unavailable for consideration, in addition to the duties 
imposed by the VCAA, VA's duty to assist is heightened and 
includes an obligation to search for alternative forms of 
records that might support the veteran's claim.  Cuevas v. 
Principi, 3 Vet. App. 542, 548 (1992).  There is also a 
heightened obligation to explain findings and to carefully 
consider the benefit-of-the-doubt rule.  Milostan v. Brown, 4 
Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. 
App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. 
App. 365, 367 (1991)).

In an effort to obtain evidence from the veteran's period of 
service, he completed a Request for Information Needed to 
Reconstruct Medical Data form (VA Form 13055).  However, he 
did not report treatment for complaints of hearing loss, 
tinnitus, or skin impairment.  Moreover, in an October 2003 
Radiation Exposure Questionnaire, the veteran reported that 
the date that his skin (cancer) was first diagnosed or 
treated was in October 1992, over 49 years after his 
discharge from active duty service.  Thus, inasmuch as he 
reported no treatment during service for defective hearing, 
tinnitus, or skin complaints, a further search for additional 
service medical records would serve no useful purpose.  See 
Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated 
on other grounds sub nom; Winters v. Gober, 219 F.3d 1375 
(Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 
(1991); and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  
See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) 
(en banc).  This also, in turn, lessens the importance of his 
service medical records because, even if available, they 
would not contain any relevant information.

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on a claim, as defined by law.  
In this case, neither examination nor opinion is needed on 
the claims because there is no persuasive and competent 
evidence that the claimed conditions may be associated with 
the veteran's military service.

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folder.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, the 
evidence submitted by the veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claims.  The 
veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).

Service Connection

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated during 
active military service.  38 U.S.C.A. §§ 1110, 1131; 
38 C.F.R. § 3.303.  To establish service connection, there 
must be evidence of an etiological relationship between a 
current disability and service.  Rabideau v. Derwinski, 2 
Vet. App. 141, 143 (1992).

Service connection may 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 or aggravated by service.  38 C.F.R. 
§§ 3.303, 3.306.

For the showing of chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required where 
the condition noted during service is not, in fact, shown to 
be chronic or where the diagnosis of chronicity may 
legitimately be questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

Hearing Loss and Tinnitus

The determination of whether a veteran has a disability based 
on hearing loss is governed by 38 C.F.R. § 3.385.  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 500, 1000, 2000, 
3000, or 4000 hertz is 40 decibels or greater; or when the 
auditory thresholds for at least three of the frequencies 
500, 1000, 2000, 3000, or 4000 hertz 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 contends that service connection for hearing loss 
and tinnitus is warranted because he was exposed to anti 
aircraft guns while serving in Korea.  However, as noted 
above, he has not reported that he was treated for complaints 
of hearing loss or tinnitus in service.  

The post service record consists of private clinical records 
dating from 1991 in which no reference to hearing impairment 
or ringing of the ears is recorded.  Significantly, post-
service clinical records that have been received do not refer 
to any complaints, findings, history or diagnosis relating to 
ringing of the ears or defective hearing.

Nevertheless, the veteran is competent to report that he has 
had ringing in his ears since service as well as hearing 
impairment.  However, his report of in-service symptoms and 
continuity of symptomatology must be weighed against the 
clinical evidence of record that shows no findings or 
complaints of tinnitus in service, or any hearing loss by VA 
standards to date.  Although he claims that his hearing 
diminished during active duty, it is still not demonstrated 
that he has had any ratable hearing loss by VA standards.

The Board points out that service connection requires 
evidence that establishes that the veteran currently has a 
diagnosis of the claimed disability for which service 
connection is being sought.  See Rabideau v. Derwinski, 2 
Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 
Vet. App. 223, 225 (1992).  There is no allegation of 
diagnosis of either hearing loss or tinnitus in service and 
there is no clinical evidence that the veteran has been 
diagnosed with or treated for hearing loss or tinnitus at 
anytime after service discharge.  While the veteran may now 
claim that he currently has these disabilities, as a 
layperson, he cannot support the claims on the basis of his 
assertions alone as he is not competent to provide a 
probative opinion on a medical matter.  See Bostain v. West, 
11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 
Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. 
App. 183, 186 (1997).  In this regard, the Board points out 
that should the appellant obtain clinical evidence that 
supports a finding of tinnitus or hearing loss related to 
service, VA would be obligated to reconsider this matter.  
However, for the reasons discussed above, service connection 
for bilateral hearing loss and tinnitus is not warranted at 
this time and must be denied.

Actinic and Seborrheic Keratoses

Service connection for a disorder which is claimed to be 
attributable to radiation exposure during service can be 
accomplished in three different ways.  See Ramey v. Brown, 9 
Vet. App. 40 (1996).

First, there are specific diseases which may be presumptively 
service-connected if manifest in a radiation-exposed veteran.  
A "radiation-exposed" veteran is one who participated in a 
radiation-risk activity.  A "radiation-risk activity" 
includes onsite participation in a test involving the 
atmospheric detonation of a nuclear device or participation 
in the occupation of Hiroshima or Nagasaki between August 6, 
1945 and July 1, 1946.  38 U.S.C.A. § 1112(c); 38 C.F.R. 
§ 3.309(d).

In applying this statutory presumption, there is no 
requirement for documenting the level of radiation exposure.  
However, the veteran cannot avail himself of this avenue of 
recovery as actinic and seborrheic keratoses are not among 
the specific listed diseases eligible for the service 
connection presumption under 38 U.S.C.A. § 1112(c) or 
38 C.F.R. § 3.309(d).

The second avenue of recovery is found under 38 C.F.R. 
§ 3.311(b)(2).  This provision provides that certain listed 
"radiogenic" diseases found 5 years or more after service 
in an ionizing-radiation-exposed veteran may be service 
connected if the VA Undersecretary for Benefits determines 
that they are related to ionizing radiation exposure while in 
service or if they are otherwise linked medically to ionizing 
radiation exposure while in service.  When it has been 
determined that: (1) a veteran has been exposed to ionizing 
radiation as a result of participation in the atmospheric 
testing of nuclear weapons, the occupation of Hiroshima or 
Nagasaki, Japan, from September 1945 until July 1946, or 
other activities as claimed; (2) the veteran subsequently 
develops a specified radiogenic disease; and (3) the disease 
first becomes manifest in the period specified, the claim 
will be referred to the VA Under Secretary for Benefits for 
further consideration in accordance with 38 C.F.R. 
§ 3.311(c).  When such a claim is forwarded for review, the 
VA Undersecretary for Benefits shall consider the claim with 
reference to 38 C.F.R. § 3.311(e) and may request an advisory 
medical opinion from the VA Undersecretary of Health.  
38 C.F.R. § 3.311(b), (c)(1).  The medical adviser must 
determine whether sound scientific and medical evidence 
supports a conclusion that it is at least as likely as not 
that the disease resulted from in-service radiation exposure 
or whether there is no reasonable possibility that the 
disease resulted from in-service radiation exposure.  
38 C.F.R. § 3.311(c)(1).

A "radiation-exposed veteran" is one who participated in a 
"radiation-risk activity" which includes occupation of 
Hiroshima or Nagasaki beginning on August 6, 1945 and ending 
on July 1, 1946.  38 C.F.R. § 3.309(d) (3).  In this case, 
the evidence shows that the veteran is a "radiation-exposed 
veteran" and skin cancer is a specified radiogenic disease 
under 38 C.F.R. § 3.311(b)(2).  However, inasmuch as the 
veteran has never been diagnosed with skin cancer, he cannot 
avail himself of this avenue of recovery.  

Specifically, the private medical evidence of record 
demonstrates that the veteran has been treated for actinic 
and seborrheic keratoses since November 1999.  Although the 
veteran has reported that his first treatment for skin 
complaints was in October 1992, the first clinical evidence 
of record for such treatment is November 1999.  
Significantly, these records are silent with respect to 
findings of skin cancer.  

The veteran's statements alone are not sufficient to prove 
that his currently diagnosed actinic and seborrheic keratoses 
is related to in-service exposure to ionizing radiation.  
Medical diagnosis and causation involve questions that are 
beyond the range of common experience and common knowledge 
and require the special knowledge and experience of a trained 
physician.  As he is not certified by an appropriate 
professional body in the field of health physics, nuclear 
medicine, or radiology, the veteran is not competent to make 
a determination that his currently diagnosed actinic and 
seborrheic keratoses are related to in-service exposure to 
ionizing radiation.  See 38 C.F.R. § 3.311(a)(3)(ii); 
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit 
v. Brown, 5 Vet. App. 91, 93 (1993).  As such, his statements 
are not competent to show that his in-service exposure to 
ionizing radiation caused his currently diagnosed actinic and 
seborrheic keratoses.

Regarding the third avenue of recovery, the United States 
Court of Appeals for the Federal Circuit has determined that 
the Veterans' Dioxin and Radiation Exposure Compensation 
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-
29 (1984), does not preclude a veteran from establishing 
service connection with proof of actual direct causation.  
Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994).

As noted above, service connection may be granted for a 
disability resulting from disease or injury incurred in or 
aggravated by active military service.  38 U.S.C.A. § 1110; 
38 C.F.R. § 3.303(a).  In addition, service connection may 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).

In order to establish service connection for the claimed 
disorder, there must be (1) medical 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) medical 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).

Although the veteran's service medical records are not 
available for review, he has not reported that he was treated 
for skin complaints in service.  Moreover, he has reported 
that the first treatment for his skin was not until October 
1992, over 49 years after his discharge from active duty 
service.  The medical evidence of record shows that the 
veteran experienced multiple skin lesions from November 1999 
onwards and that these lesions have been diagnosed as actinic 
and seborrheic keratoses.  They have not been diagnosed as 
skin cancer.  

The medical evidence of record does not show that the 
veteran's currently diagnosed actinic and seborrheic 
keratoses is related to military service.  While the veteran 
has a current diagnosis of actinic and seborrheic keratoses, 
there is no medical evidence of record that this disorder was 
diagnosed prior to 1999, over 46 years after separation from 
military service.  See Mense v. Derwinski, 1 Vet. App. 354, 
356 (1991) (holding that VA did not err in denying service 
connection when the veteran failed to provide evidence which 
demonstrated continuity of symptomatology, and failed to 
account for the lengthy time period for which there is no 
clinical documentation of his low back condition).  The 
veteran's statements alone are not sufficient to prove that 
his currently diagnosed actinic and seborrheic keratoses is 
directly related to military service.  Espiritu, 2 Vet. App. 
at 495; Grottveit, 5 Vet. App. at 93.  Accordingly, there is 
no medical evidence of record that relates the veteran's 
currently diagnosed actinic and seborrheic keratoses to 
military service, to include as due to exposure to ionizing 
radiation, nor may it be so presumed.  As such, service 
connection for skin cancer is not warranted.

In reaching these decisions, the Board considered the 
doctrine of reasonable doubt.  However, as the preponderance 
of the evidence is against the veteran's claims, the doctrine 
is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

Service connection for actinic and seborrheic keratoses, to 
include as a result of exposure to ionizing radiation, is 
denied.


____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs