Citation Nr: 1301095 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 96-11 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for a headache disorder, to include as secondary to service-connected sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from October 1973 to December 1976 and from November 1990 to May 1991. He also had service in the Reserves. This matter came before the Board from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 1997, the Board issued a decision which, in part, denied a claim for reopening a claim of entitlement to service connection for chronic tinea infection. The United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision in a March 1999 Memorandum Decision, and remanded the case for readjudication. The case was returned to the Board in May 1999. Since then, the Veteran has perfected various appeals and the case was remanded in August 1999, February 2002, and July 2004. In an October 2006 decision, the Board, in relevant part, determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for a skin disability, depressive disorder, hearing loss disability, and a headache disability. (A claim of entitlement to service connection for PTSD was reopened and remanded for additional development, as was the Veteran's claim of entitlement to a total rating based on unemployability due to service connected disabilities (TDIU). Those claims have not yet been recertified to the Board for appellate consideration.) In a September 2008 memorandum decision, the Court, inter alia, vacated and remanded the issues pertaining to reopening the claims of entitlement to service connection for a skin disability, depressive disorder, hearing loss disability, and a headache disability. Pursuant to the memorandum decision, the Board remanded the appeal in June 2010 for additional development consistent with the Court's order. The Board remanded this matter again in March 2012. The Board observes that the Veteran was afforded a hearing before a Veterans Law Judge in April 2006. In March 2010 he was advised that the Judge that conducted his hearing was no longer employed by the Board and that he could opt for an additional hearing. He responded in March 2010 that he did not wish to have another hearing. The Board notes that the issues currently on appeal have been developed (and in some instances adjudicated) as claims for whether new and material evidence has been received to reopen the claims. Service connection for a skin disorder was initially denied in a November 1991 and the Veteran did not appeal that decision, and attempted to reopen his claim May 1993. Service connection for hearing loss was initially denied in a June 1992 rating decision and the Veteran did not appeal that decision, and he attempted to reopen the claim in June 2003. Service connection for an acquired psychiatric disorder was denied in an October 1997 Board decision and the Chairman of the Board has not ordered reconsideration of that decision, and he attempted to reopen his claim June 1998. Service connection for headaches was denied in October 2001 and the Veteran did not appeal that decision, and he attempted to reopen his claim May 2003. As such, the Veteran would typically be required to submit new and material evidence to reopen his claims for service connection. See 38 C.F.R. § 3.156(a) (2012). However, during the course of the appeals, additional service treatment and personnel records have been received. These records included findings that may be relevant to the Veteran's claims. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claims, VA will reconsider the claims, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c) (2012). This regulation contemplates official service department records which presumably have been misplaced and have now been located and forwarded to VA. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claims must be reconsidered. In other words, the submission of new and material is not required in this case for VA to consider the claims on the merits. The issues of service connection for an acquired psychiatric disorder, right hearing loss disability, and a headache disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral tinea pedis was aggravated during active service. 2. Left ear hearing loss had its onset during active service. CONCLUSIONS OF LAW 1. Bilateral tinea pedis was aggravated in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). 2. Left ear hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the full grant of the benefits sought on appeal, any error in providing appropriate notice or assistance would be harmless error. Analysis 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); See also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Skin Disorder The Veteran essentially contends that he has a skin disorder of the feet related to service. On the examination report in November 1990 prior to the Veteran's second period of service, scaling and water bump underneath and up the side of the feet were noted. The Veteran is, thus, not presumed to be sound. As the Veteran is not presumed to have been sound at service entry in 1990, the next question is whether the disability is shown to have increased in severity in service. If so, service connection is warranted unless there is evidence that clearly and unmistakably demonstrates that the skin disorder was not aggravated by active service. The presumption of aggravation is generally triggered by evidence that a pre-existing disability has undergone an increase in severity in service. See Maxson v. West, 12 Vet. App. 453 (1999); see also Sondel v. West, 13 Vet. App. 213 (1999). Service treatment records show that in April 1991 in response to the inquiry what diseases or injuries he had while in the Southwest Asia region, the Veteran indicated having water blisters on the feet/scaling from wearing boots. A DD Form 689 dated in April 1993 showed that the Veteran complained of bumps on both feet which were noted could be blisters. A December 1993 examination report noted an assessment of chronic tinea pedis. A May 1994 Persian Gulf Registry report showed that while the Veteran indicated blisters on the feet and fungal infection, the examiner noted that on evaluation there was no rash seen. There were areas of hyper-pigmentation and some peeling on the feet. Additionally, in June 1996, the Veteran complained of painful, pruritic lesions on the bilateral feet for several years. An assessment of tinea pedis was noted. On VA examination in June 1999, an impression of tinea pedis was noted. As a lay witness, the Veteran is competent to report symptoms related to his skin disorder as such is readily observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Additionally, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit held that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. Instead, as a finder of fact, the Board must determine whether the lay testimony is credible, and in doing so may consider the absence of contemporaneous evidence. In addition, the Board, as a trier-of-fact, must take into account the unavailability of medical records. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a finder of fact, the Board concludes that the Veteran is competent and credible as to his report of having skin problems of the feet since 1990 and any assertions as to his symptoms increasing in severity due to service (i.e. from wearing boots). Jandreau supra. Based on the above, the Board concludes that although tinea pedis was observed at entry, his in-service complaints suggest an increase therein, and the evidence does not clearly and unmistakably show that it was not aggravated by service. Thus, the criteria for service connection have been met. Left Ear Hearing Loss Disability The Veteran essentially contends that he has a hearing loss disability related to service. He asserts that he was exposed to acoustic noise (guns and artillery) and that his disability began in Vietnam. 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. See 38 C.F.R. § 3.385. Sensorineural hearing loss may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, this presumption does not apply as there is no evidence of compensable hearing loss within a year of service separation. The relevant evidence of record includes the following: On examination conducted at entrance to service in October 1973, the following pure tone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 LEFT 30 20 30 30 At the National Guard enlistment examination in July 1983, the following pure tone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 LEFT 20 10 10 10 10 The September 1987 National Guard retention examination report showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 40 30 25 35 25 The November 1990 examination report showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 35 5 10 0 5 The April 1991 examination report at separation showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 40 05 25 20 20 The November 1994 examination report during service with the National Guards showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 30 05 10 05 20 The Board notes that the Veteran was shown to have hearing loss in the left ear for VA compensation purposes in September 1987. However, the following audiological examination report in November 1990 showed that he did not meet the criteria for a disability. Based on the fluctuations, the Board cannot find that the Veteran's left ear hearing loss pre-existed his second period of service or that a hearing list disability was noted at entry into that period of service . As noted above, in order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence the disease or injury existed prior to service . In this case, because the Veteran's hearing acuity returned to normal limits during the November 199 periodic examination, he is presumed to have been sound at entry. Additionally, the Board notes that the Veteran is competent and credible with regards to his contentions that he was exposed to acoustic trauma in service and that his disorder began in service as these factors are capable of lay observation. See e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that the Veteran was competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). He is also credible with regard to these assertions. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Based on the above, the Board concludes that because the presumption of soundness applies to his second period of service, the Veteran has been shown to have met the requirements for a left ear hearing loss disability for VA compensation purposes during the April 1991 separation examination, and the lay evidence provided by the Veteran sufficiently establishes continuity of symptoms, the criteria for service connection for a left ear hearing loss disability have been met. ORDER Service connection for bilateral tinea pedis is granted. Service connection for left ear hearing loss is granted REMAND Unfortunately, another remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. At the outset, the Board notes that since it has just determined that the claims currently on appeal should be adjudicated on the merits, the Veteran should be sent a letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) for his claims for service connection for an acquired psychiatric disorder, hearing loss disability, and a headache disorder to include as secondary to service-connected sinusitis. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). As to the claim for service connection for an acquired psychiatric disorder, the Veteran indicated that he started having sleep trouble and anxiety shortly after demobilization in his second period of service. Post-service treatment records show various psychiatric diagnoses, including depressive disorder and anxiety disorder, and various stressors (e.g. job). The Board notes that the Veteran is competent and credible as to his statements regarding the onset of psychiatric symptoms. See Jandreau, Buchanan supra. Although the Veteran has been provided VA examinations throughout the appeal, none of the reports addressed the etiology of any currently diagnosed acquired psychiatric disorder. On remand, he must be afforded an examination to determine the nature and etiology of any current acquired psychiatric disorder. As to the claim for service connection for a right ear hearing loss disability, the Veteran essentially contends that he has a disability related to service. He asserts that he was exposed to acoustic noise (guns and artillery) and that his disability began in Vietnam. In this regard, the Board notes that the Veteran is competent and credible with regards to his contention that he was exposed to acoustic trauma in service as that is capable of lay observation. See e.g., Layno, Jandreau supra. At the examination conducted at entrance to service in October 1973, the following pure tone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 At the National Guard enlistment examination in July 1983, the following pure tone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 15 The September 1987 National Guard retention examination report showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 40 40 60 The November 1990 examination report showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 The April 1991 examination report at separation showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 25 25 25 The November 1994 examination report during service with the National Guards showed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 05 10 05 The Board notes that while elevated pure tone thresholds were noted at service entry in 1973, the thresholds were shown to be decreased on the examination thereafter. On remand, the Veteran should be afforded an examination to determine the nature and etiology of any current right ear hearing loss disability, to include a determination as to whether he had any pre-existing hearing loss disability that was aggravated by service. The Veteran essentially contends that he has a current headache disorder related to service, or in the alternative secondary to his service-connected sinusitis. The record is unclear as to the nature of the Veteran's current headache disorder. Throughout the appeal, the Veteran's complaints of headaches are well documented, however, the etiology of such disorder has not been established. It has been noted that the etiology of the disorder may be multi-factorial, sinusitis in combination with migraine and tension headaches. See e.g. November 2000 VA treatment record. It has also at times been attributed to his blood pressure. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (as in effect prior to October 10, 2006). [The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Because the Veteran submitted his claim prior to October 10, 2006 (the effective date of the amended provisions), the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. See 38 C.F.R. § 3.310 (2012); Allen supra; see also generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). On remand, the Veteran must be afforded an examination to determine the nature and etiology of any current headache disorder. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issues of entitlement to service connection for an acquired psychiatric disorder, hearing loss disability, and headache disorder, to include as secondary to service-connected sinusitis. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of any current acquired psychiatric disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should determine the diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. The examiner must comment on the approximate date of onset and etiology of any diagnosed acquired psychiatric disorder as shown by the evidence of record. For each disorder identified, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is related to his military service, to include any stress incurred therein. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's competent and credible lay evidence of symptoms having their onset during service. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an audiological examination to determine whether any current right ear hearing loss disability is related to conceded in-service noise exposure. The examiner must review the claims file, to include a copy of this remand, and must indicate that review of the claims folder was completed. The examiner should determine if the Veteran currently has a hearing loss disability in the right ear and should indicate: a) Whether the disorder clearly and unmistakably existed prior to the Veteran's entrance onto either period of active duty. The examiner should be advised that "clear and unmistakable evidence" means with a much higher certainty than "as likely as not" or "very likely." See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). b) If the disorder clearly and unmistakably existed prior to a period of active service, the examiner should proffer an opinion as to whether the disorder clearly and unmistakably DID NOT increase in severity beyond the natural progression of the disorder during active duty. c) If the hearing loss disability did not clearly and unmistakably exist prior to active duty and was not aggravated by active duty, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is related to his military service, to include any conceded in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years). In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner must provide a rationale for any opinion expressed and reconcile any contradictory evidence of record. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. Schedule the Veteran for an examination to ascertain the nature and etiology of any current headache disorder. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should determine the nature and diagnosis of any current headache disorder. The examiner must determine whether any current headache disorder is distinct from the sinusitis disorder, or whether it is part and parcel of the sinusitis. If the headaches are a separate and distinct from sinusitis, the examiner should also provide an opinion as to whether there is a 50 percent or greater probability that any headache disorder is related to service or caused by any other service-connected disorder. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Following completion of the foregoing, the RO/AMC must review the claims folders and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 6. Thereafter, readjudicate the Veteran's claims. If any the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs