Citation Nr: 1125252 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 09-43 838 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a rating in excess of 10 percent for tinea pedis, tinea cruris, onychomycosis, and pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1966 to March 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee VARO issued in July 2007 (which in pertinent part continued a 10 percent evaluation for tinea with pseudofolliculitis barbae) and in March 2009 (which in pertinent part denied service connection for tinnitus). In an interim April 2009 rating decision, the RO re-characterized the skin disability issue on appeal as tinea pedis, tinea cruris, onychomycosis, and pseudofolliculitis barbae. In November 2008, the Veteran testified in an RO formal hearing. In January 2011, the Veteran testified in a Travel Board hearing before the undersigned. Transcripts of both hearings are included in the claims file. In July 2006, the Veteran filed service connection claims for chronic open angle glaucoma (previously denied) and erectile dysfunction secondary to diabetes mellitus. After the RO issued a Statement of the Case in July 2007, the Veteran submitted a Form 9 substantive appeal in August 2007. However, the statement accompanying the Form 9 addressed only the evaluation for tinea with pseudofolliculitis and the severance of service connection for diabetes mellitus, both of which were decided by the RO in a July 2007 rating decision; the Veteran did not address erectile dysfunction or glaucoma, therefore it is unclear whether the VA Form 9 was intended as a substantive appeal regarding chronic open angle glaucoma and erectile dysfunction. Regardless, in an October 2007 statement, the Veteran withdrew "all issues currently under appeal", which at the time included entitlement to service connection for erectile dysfunction and a request to reopen a claim of entitlement to service connection for chronic open angle glaucoma. Therefore, these matters are not before the Board at this time. Additionally, the Veteran submitted a Form 9 substantive appeal in April 2009 regarding a claim of service connection for lichen simplex chronicus, claimed as a skin condition. However, in August 2009 the Veteran's representative submitted a statement withdrawing the appeal for service connection for lichen simplex/a skin condition. Therefore, that matter is not before the Board at this time, though the claim for an increased rating for all skin conditions remains on appeal. The matter of an increased rating for tinea pedis, tinea cruris, onychomycosis, and pseudofolliculitis barbae is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran's tinnitus began in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (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). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims his tinnitus resulted from exposure to excessive noise in service. Specifically, he reports that he was exposed to loud noise during combat service in the infantry in Vietnam. The Veteran has been awarded the Combat Infantryman Badge and a Purple Heart Medal (which is awarded for injury in combat), and is entitled to the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b). His exposure to substantial noise trauma in service is not in dispute. He has been awarded service connection for bilateral hearing loss disability, effective since separation from service, based on findings of hearing loss in the service treatment records. On May 1993 VA audiological examination, the Veteran endorsed symptoms of tinnitus for an unspecified number of years. He reported a history of military and vocational noise exposure. On June 2003 VA treatment, the Veteran reported intermittent tinnitus with noted sinus drainage. On March 2008 VA treatment, the Veteran denied tinnitus and other ear-related symptoms and indicated that his left hearing aid was no longer working. Audiometric findings showed moderate to moderately severe sensorineural hearing loss bilaterally. He was noted to be a candidate for new hearing aids, which were issued to him in April 2008. On March 2009 VA audiological examination, the examiner noted that the Veteran had been issued three sets of hearing aids, the most recent in April 2008. The Veteran reported difficulty understanding conversational speech, especially in noisy places, in church, or when listening to females and children. He reported periodic bilateral tinnitus, described as a high-pitched hissing/tone. He reported that he had had tinnitus for about 10 years and that it occurred about once a month, usually when he had sinus problems or when the weather changed. He reported the tinnitus could sometimes give him a headache. The examiner noted a positive history of military noise exposure in the infantry, being around weapons fire for 13.5 years in service as well as one year in Vietnam. The Veteran reported that he only used hearing protection on the rifle range. He reported being a dental lab technician for 33 years, for which protective hearing devices were not required although he was around some noisy drills. He reported recreational noise exposure in that he went shooting once to twice per week but always used his special hearing aids designed for hunting that were issued to him by VA in 2001. The examiner diagnosed bilateral moderate to severe sensorineural hearing loss and periodic bilateral tinnitus. The examiner noted that the reports of tinnitus for 10 years placed the onset at 19 years after leaving the military and opined that the tinnitus was less than likely caused directly by military noise exposure. In the January 2011 Travel Board hearing, the Veteran testified that he first reported his symptoms of tinnitus to a VA treating physician approximately 14 years earlier, at which time he was given hearing aids. He testified that he had had the problem of "hearing sounds" earlier but did not know what it was, and he only sought treatment when it had worsened to the point that he felt he had to seek treatment. He testified that he believed the noise he was hearing was a part of his [service-connected] hearing loss. In essence, tinnitus is a disability that is diagnosed based on self-report (lay observation by the person with such disability); hence, the Veteran is competent and eminently qualified to establish by his own accounts that he has tinnitus, and that he has had it continuously since service (which is one way of substantiating a service connection claim; see 38 C.F.R. § 3.303(b)). Consequently, what is presented to the Board is the question of the Veteran's credibility (i.e., in his accounts that tinnitus arose with the trauma that occurred due to combat infantry service and has persisted since). The conflicting evidence that must be addressed is that he is noted to have advised a VA examiner that his tinnitus began 10 years prior (which would be many years after service). Given that his account of the acoustic trauma is consistent with the circumstances of his service (his Combat Infantryman Badge and his Purple Heart Medal award), and that he is entitled to the relaxed evidentiary standards afforded under § 1154(b), the Board finds his explanation that he has had tinnitus ever since the combat noise trauma in service (but worsening to the point of seeking treatment in the 10 years prior to the VA examination) not implausible, and credible. Resolving any remaining reasonable doubt in his favor, as mandated by law and regulation (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board concludes that service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his increased rating claim. See 38 C.F.R. § 3.159 (2010). Regarding the matter of the rating for multiple skin conditions, the Veteran testified during the January 2011 Travel Board hearing that his various conditions have worsened since his most recent VA examination in March 2009. As the reports of that examination are now dated (and because the Veteran is competent to observe a worsening of symptoms), a contemporaneous examination is necessary to assess the current severity, both individually and cumulatively, of the various skin conditions. Additionally, the Veteran testified that he received ongoing dermatological treatment, including being issued medications, from the Nashville VAMC. A review of the claims file found that the most recent VA treatment records in evidence are from March 2009. Records of any VA treatment he may have received for the skin disabilities at issue since that time are constructively of record, are pertinent evidence, and must be secured. Furthermore, it appears there may be outstanding private treatment records not yet in evidence. During the January 2011 Travel Board hearing, the Veteran testified that he was "not sure about these records" and reported that he had been treated at two different hospitals recently; he testified that these were not VA facilities. He testified that he had been "out of the hospital since about the 14th", or approximately two weeks before the hearing, and he was "doing much much much better". He did not state for what disability/disabilities he sought treatment at the two unnamed private hospitals, and it is unclear whether the treatment was for his skin disabilities. A review of the claims file reveals that there are no treatment records in evidence from either non-VA hospital. Such treatment records, if they pertain to his skin conditions, are pertinent and may be critical evidence in the matter of an increased rating for his skin disabilities. Accordingly, further development for the complete treatment records is necessary, particularly as he is claiming that his skin conditions have worsened since the most recent VA examination in March 2009. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete updated (since March 2009) clinical records of any VA treatment the Veteran has received for any/all of his skin conditions from the Nashville VAMC. 2. The RO should ask the Veteran to identify all medical providers from whom he has received treatment for the skin disability/disabilities on appeal, particularly the two unnamed non-VA hospitals in late 2010/early 2011. The RO should ask the Veteran to submit authorizations to secure the complete records from the providers identified and should then secure for the record copies of the complete clinical records (any not already associated with the claims file) of any treatment the Veteran identifies. 3. The RO should then arrange for a skin examination of the Veteran to assess the current severity of his various skin conditions. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. (a) Please identify (by medical diagnosis) each of the Veteran's skin disabilities. (b) As to each and every diagnosed skin disability entity, please indicate the symptoms attributed to such entity, the percentage of exposed surface area affected, the percentage of total body surface area affected, and whether there is any scarring attributed to such entity, only. (c) In addition to the percentages given for each disability entity in instruction (b), please indicate the combined percentages of exposed surface area and of total body surface area affected due to all of the skin disabilities together. The examiner must explain the rationale for all opinions offered. 4. The RO should then re-adjudicate the matter on appeal. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs