Citation Nr: 1310017 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 07-16 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for shortness of breath. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for tinea pedis. 5. Entitlement to service connection for skin spots. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to February 1985, September 1990 to July 1991, including service in the Southwest Asia Theater of Operations (Saudi Arabia) in support of Operation Desert Shield/Desert Storm from October 1990 to June 1991; and from August 2004 to November 2005, with service in the Southwest Asia Theater of Operations (Iraq) in support of Operation Iraqi Freedom from November 2004 to October 2005. He also had periods of active duty for training from February 1984 until February 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of service connection for hearing loss, a skin condition, shortness of breath, and sore/athletes feet were last denied on the merits in January 1997. As additional and relevant service department records (including treatment records) have been received since the January 1997 rating decision, new and material evidence is not needed to reconsider these claims on the merits. 38 C.F.R. § 3.156(c). In May 2011 the Board remanded the issues on appeal for further development. As regards the issue of service connection for shortness of breath, no further action to ensure compliance with the Board's remand directives is needed. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for hearing loss, tinnitus, a fungal foot infection, and skin spots are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The weight of the evidence shows that the Veteran's shortness of breath is due to his long history of cigarette smoking; and VA regulations prohibit the grant of service connection for disability attributable to use of tobacco products during service for claims received by VA after June 9, 1998. CONCLUSION OF LAW The claim of service connection for a respiratory disorder, claimed as breathing condition/shortness of breath, lacks legal merit. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.300 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent March 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records have been obtained. In addition, he has been provided with multiple VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection The Veteran seeks service connection for shortness of breath, which he says began during a deployment to the Persian Gulf. His claim for service connection was filed in November 2005. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may also be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Chronic diseases in this context are those listed in 38 C.F.R. § 3.309. See Walker v. Shinseki, --- F.3d ----, 2013 WL 628429 ((Fed. Cir. Feb. 21, 2013). In addition to the foregoing, VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including signs or symptoms involving the skin, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. Discussion & Analysis In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). DD-214 confirms that the Veteran served on active duty from September 1990 to July 1991, with service in Saudi Arabia in support of Operation Desert Shield/Desert Storm from October 1990 to June 1991. Service treatment records, which include medical records compiled during that deployment, contain no record of any complaints of shortness of breath. In July 1991 the Veteran separated from his first period of active duty service; and in October 1994 he filed a claim for service connection. No mention of shortness of breath was made in the 1994 claim; however, during a December 1994 VA general medical examination he reported that he had a smoker's chronic cough and shortness of breath. He added that he smoked about a half pack of cigarettes per day, and that he used to smoke a pack per day. Respiratory examination found lungs clear to auscultation and percussion, and the chest x-ray was negative. Cardio examination found no gallops or murmurs, and there was regular rate and rhythm. Diagnosis was "complaints of shortness of breath," which the examiner stated was likely due to tobacco abuse. The examiner advised the Veteran to quit smoking. Pulmonary function testing in December 1994 was within normal limits. At that time the Veteran reported a smoking history of a pack per day for the past 6 years. Chest x-rays in December 1994 also showed the heart and aorta to be normal, and the lungs well expended. In a rating decision in January 1997 the Veteran's claim for service connection for breathing condition/shortness of breath, including as due to an undiagnosed illness, was denied. It was not appealed. In November 2004 the Veteran was recalled to active duty in support of Operation Iraqi Freedom, with service in Kuwait/Iraq from November 2004 to October 2005. Service treatment records, including a September 2004 pre-deployment medical screening and medical records compiled during that deployment, contain no record of any complaints of shortness of breath during that deployment, but the Veteran did complain of shortness of breath during his 2005, post-deployment assessment, and the provider noted that the Veteran was exposed to environmental hazards in the Persian Gulf. However, the report did not convey a sense that the Veteran's complaints were associated with these hazards. This was simply an acknowledgement of the conditions prevailing during the Veteran's deployment. Such hazards included exposure to infectious diseases, indigenous plants and animals, fumes, dust of unknown origin, extreme exposure to sun and ambient temperatures, and use of non-potable water for hygiene. In November 2005, the Veteran filed his current claim for service connection for shortness of breath. In his claim he said that his shortness of breath began around February, 2005. As this clearly does not square with his report of shortness of breath/a smoker's cough some 10 years earlier, the Board does not find the Veteran's assertions regarding the onset of his shortness of breath to be credible. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, that is, because of possible bias or conflicting statements); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). Moreover, on VA examination in June 2006, he admitted to smoking a half pack of cigarettes per day and complained of a cough, but examination (including x-rays), were negative. Lungs were clear to auscultation bilaterally, and chest was normal with symmetric excursion and unlabored breathing. Heart had regular rate and rhythm, with no murmurs, rubs, or gallops. There was no productive cough or related cardiac symptoms. An echocardiogram also showed normal sinus rhythm. Diagnosis was "subjective shortness of breath," with no objective findings on examination. As a Persian Gulf War veteran, this claim is entitled to consideration under 38 C.F.R. § 3.317; however, the Board notes that the Veteran's respiratory profile in 2006 (including subjective complaints and medical findings) is exactly as it was in 1994, when the Veteran's shortness of breath was ascribed, by both the Veteran and the VA examiner, to the Veteran's cigarette abuse and related cough. Accordingly, and absent any probative evidence to the contrary, the Board finds that the Veteran's shortness of breath is not of undiagnosed etiology but rather is due to "smoker's cough" (as the Veteran put it), secondary to cigarette smoking. Service connection under the presumptive provisions of 38 C.F.R. § 3.317 is therefore not warranted. Additionally, although the Veteran did complain of shortness of breath while on active duty during his 2005 post deployment assessment, his first complaints of shortness of breath were as a civilian during a 1994 VA examination, during which time he himself stated that his shortness of breath was secondary to smoking/smoker's cough; and the 1994 VA examiner agreed. VA laws and regulations prohibit service connection for a disability caused by smoking, if the claim was filed after June 9, 1998. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300. To the extent that the Veteran has expressed the opinion that his shortness of breath is related to his exposure to environmental hazards in the Persian Gulf, his opinion as a lay person is limited to inferences that are rationally based on his perception and that do not require specialized education, training, or experience, as in this case. The Veteran is not shown to be qualified through specialized education, training, or experience to offer medical diagnoses or opinions. Moreover, his assertions in 2004 directly contradict his previous avowal in 1994, when he acknowledged that his shortness of breath was due to smoking/smoker's cough. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (providing that the credibility of a witness can be impeached by a showing of inconsistent statements). The Board consequently finds the Veteran's contention to be of no probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). This leaves the record simply showing the onset of shortness of breath secondary to years of cigarette abuse. This is not a basis upon which to establish service connection. See 38 C.F.R. § 3.300(a). Accordingly, the weight of the evidence is against the claim and the benefit of the doubt standard of proof does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for shortness of breath is denied. REMAND In addition to the foregoing, the Veteran seeks service connection for hearing loss, tinnitus, bilateral feet fungus, and skin spots. With regard to the issue of service connection for hearing loss, the Veteran says that his hearing worsened in Iraq (2004-2005). An active duty examination in April 1991 found right ear threshold at 500 Hertz of 30 decibels, and left ear thresholds at 500 and 4000 Hertz of 30 and 35 decibels, respectively. On VA audiology examination in November 1994 left ear threshold at 4000 Hertz was 45. Additionally, active duty service treatment records during the Veteran's second (2004-2005) tour confirm that he was profiled secondary to his hearing loss, and on VA general medical examination in 2006 he said that his hearing was much worse, especially in his right ear. A routine initial audiology consult in October 2006 found mild low frequency sensorineural hearing loss from 250 to 1500 Hertz in the right ear, and mild sloping to severe sensorineural hearing loss from 1000 to 8000 Hertz in the left ear. Unfortunately, an opinion has not been provided as to whether the Veteran's left and/or right ear hearing loss is related to service. Remand for a new VA examination and opinion is accordingly warranted. 38 C.F.R. § 3.326. As regards the claim for service connection for tinnitus, during the October 2006 audiology consult the Veteran stated that his tinnitus began midway during his 2004-2005 tour in Iraq; however, on VA audiology examination in November 1994 he admitted to occasional mild tinnitus in both ears since about 1990. It is unclear if tinnitus was incurred in service or whether it may be due to hearing loss. This should be addressed on examination. With regard to the claim for service connection for skin spots, during his 2005 post deployment examination the Veteran complained of skin spots; and on VA examination in October 2006 the examiner found at least 12 lesions scattered throughout the Veteran's arms, legs, and anterior chest, described as 1x1 centimeter pigmented macules. The Veteran told the examiner that he first noticed these lesions while he was in Iraq (2004-2005). Diagnosis was skin condition of unknown etiology. However, VA medical records dated in October 2006 document the Veteran as complaining of a cyst on his left upper back for the past 20 years, which he said had recently grown to the size of a small egg. He also reported that a lesion on his left forearm had been present for approximately 20 years and had gotten larger; and VA medical records in November 2010 apprise of surgery to remove lesions on the Veteran's back and left and right arms. It is unclear whether these lesions are the spots that the Veteran referred to in his 2005 claim for service connection which he says began during his deployment in the Persian Gulf in January 2005, and/or that were observed during the October 2006 VA examination, which the examiner said were of unknown etiology. Therefore, the Veteran should be accorded a VA examination and an opinion should be obtained, as detailed below. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, and as regards the claim for service connection for a bilateral foot fungus disorder, an active duty medical record compiled during the Veteran's first deployment to the Persian Gulf in April 1991 notes that the Veteran had athletes foot that was resolved; however, on VA general medical examination in December 1994 the Veteran said that the skin of his feet felt raw and bruised at times. Additionally, active duty medical records compiled in September 2005 during his second deployment to the Persian Gulf relate complaints of foot fungus, and VA medical records dating from September 2006 advise that the Veteran was using over-the-counter antifungal foot powder for his foot complaints, diagnosed as tinea pedis and onychomycosis of the great toenails. Unfortunately, an opinion has not been provided as to whether a current fungal foot disorder(s) is related to service. One should be obtained. On remand, VCAA notice regarding service connection for a bilateral fungal foot disorder/tinea pedis must be sent. The claims file should also be updated to include any additional VA treatment records dated after December 2010. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Pursuant to the provisions of 38 U.S.C.A. § 5103, send the Veteran notice of the information and evidence necessary to establish service connection for a bilateral fungal foot disorder. 2. Obtain the Veteran's VA treatment records dating from December 2010. 3. After completion of the above, schedule this Veteran for appropriate examinations regarding the issues of service connection for hearing loss, tinnitus, skin spots, and foot fungus. All pertinent symptomatology and findings should be reported in detail. The examiner/s should record all pertinent medical complaints, symptoms, and clinical findings, and review the results of any testing prior to completion of the report. The claims file must be made available to, and reviewed by, the examiner(s) in conjunction with the examination(s). Following a review of the claims file, to include service and post-service medical records, the appropriate examiner should address the following: a) with regard to the claim for service connection for hearing loss, whether it is at least as likely as not that this disorder began during the Veteran's 1990-1991 active duty service, as alleged by the Veteran. If it is determined that the Veteran's hearing loss was not incurred during service, then opine as to whether it is at least as likely as not that the Veteran's hearing loss was aggravated during his subsequent active military service, (i.e., 2004-2005). In formulating this opinion the examiner should note that the Veteran was profiled, and granted a waiver, for hearing loss to facilitate his entry into active duty service in 2004. Also, the Veteran's exposure to excessively loud noise during both of his deployments to the Persian Gulf is conceded. NOTE: Aggravation is defined as a permanent worsening beyond the natural progression of the disability. b) with regard to the claim for service connection for tinnitus, whether it is at least as likely as not that this disorder is related to the Veteran's hearing loss, or to in-service noise exposure. c) with regard to the claim for service connection for bilateral foot fungus, whether it is at least as likely as not that a currently diagnosed foot fungus disorder is related to the fungal outbreaks on the Veteran's feet during the Veteran's active duty service. d) with regard to the claim for service connection for skin spots, whether the Veteran's skin spots are of medically determinable etiology. If the examiner determines that the Veteran's spots are not attributable to a medically known diagnosis, he should so state. e) if the Veteran's skin spots are determined to be of medically known etiology, the diagnosis must be provided. The examiner must then state whether it is at least as likely as not that this disorder began during the Veteran's 2004-2005 active duty service, as alleged by the Veteran. A complete rationale for all opinions must be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 4. After completion of all of the above and any other development deemed necessary, re-adjudicate the claims. If any benefit remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). These claims 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs