Citation Nr: 1312277 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-14 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to ionizing radiation. 2. Entitlement to service connection for left acoustic neuroma/vestibular schwannoma, to include as due to ionizing radiation. 3. Entitlement to service connection for coronary artery disease, to include as secondary to diabetes mellitus. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 6. Entitlement to service connection for diabetic retinopathy. 7. Entitlement to service connection for any other eye disability, to include as due to vestibular schwannoma, or due to ionizing radiation. 8. Entitlement to service connection for dry skin (xerosis), to include as secondary to skin cancer. 9. Entitlement to service connection for bilateral hearing loss. 10. Entitlement to service connection for tinnitus. 11. Entitlement to service connection for neuropathy. 12. Entitlement to service connection for disability manifested by numbness of the hands. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran has verified active duty service in the United States Navy from January 1961 to March 1964. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in Des Moines, Iowa that, among other things, denied service connection for diabetes mellitus, type II, left acoustic neuroma/vestibular schwannoma, coronary artery disease, erectile dysfunction, hypertension, an eye disorder, dry skin (xerosis), bilateral hearing loss, tinnitus, neuropathy, and a disability manifested by numbness of the hands. The Veteran was afforded a hearing at the RO in March 2004. The transcript is of record. Following review of the record, the issues of entitlement to diabetes mellitus, a left acoustic neuroma/vestibular schwannoma, coronary artery disease, erectile dysfunction, hypertension, diabetic retinopathy, an eye disorder other than diabetic retinopathy, neuropathy, and a disorder manifested by numbness of the hands are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. There is no competent evidence of record that dry skin (xerosis) was present in-service, or is secondary to service-connected skin cancer. 2. Noise exposure is consistent with the circumstances of the Veteran's service. 3. Competent evidence of record shows that bilateral hearing loss is unrelated to service. 4. There is competent evidence of record that tinnitus is reasonably related to service. CONCLUSIONS OF LAW 1. Dry skin (xerosis) was not incurred in or aggravated by service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Bilateral hearing loss was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been incurred in service . 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in the Veteran's favor tinnitus was incurred in service.38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has the disorders at issue and that they are of service onset or are caused or aggravated by a service-connected disability. Hence, it is maintained that service connection is warranted for the claimed disorders. Veterans Claims Assistance Act of 2000 (VCAA) VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in June 2001, November 2005, March 2006, and May 2008 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Review of the record reflects that the Veteran has indicated that he has been treated by multiple private physicians/facilities for disabilities claimed on appeal. The RO has contacted and attempted to secure the records from all of the entities identified. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording VA examinations for service connection of bilateral hearing loss and tinnitus. The Board finds that these examination are adequate to render a determination as to these issues on appeal. The Veteran was not provided a VA examination for dry skin (xerosis). As discussed in further detail below, there is no evidence of any of this disability during service or for many years thereafter. As well, the evidence of record does not suggest a relationship between this disorder and active service or a service-connected disorder. Therefore, the requirements for VA examination are not met as to these matters. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79 (2006). The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations - 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. § 1131; 38 C.F.R. § 3.303. 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. Service connection may be granted for disability that is proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310. This includes disability made chronically worse by service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). 38 C.F.R. § 3.310. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). 1. Service connection for dry skin, to include as secondary to skin cancer. Initially, the Board points out that the Veteran's service treatment records are not available and that his claims folder has been rebuilt. In a letter to the appellant dated in January 2003, the RO informed him that they were unable to locate his original claims folder after an "exhaustive search." It was requested that he reinitiate the claims process to rebuild the claims folder. A March 2009 memorandum of a formal finding of unavailability of service records is of record. In January 1999, the Veteran was seen in follow-up and was noted to have several scaly lesion on the face hands, and back. Numerous actinic keratoses and seborrheic keratoses were observed. Private clinical records dated in November 1999 indicated that the Veteran was a county maintenance crew employee with a lot of outdoor sun exposure although he was within a cab. It was noted that he had been seen the previous month for a nonhealing skin lesion that was excised and presented on the current occasion for a wider incision. Following examination, the diagnoses were right post auricular skin lesion - squamous cell cancer in situ in an actinic keratosis previously elliptically excised; left periorbital skin lesion, possible malignancy; right forehead skin lesion, probably keratosis; and right lower quadrant abdominal keratosis. In April 2003, he was noted to have scalp lesions. A VA outpatient physical examination in September 2007 noted no abnormal findings of the skin. In March 2009 VA granted entitlement to service connection for scars, skin cancer of the forehead and right ear, status post excision, and a 10 percent disability evaluation was awarded. During an April 2009 VA scar examination it was reported that that appellant had had multiple skin cancers removed from the face after skin cancer excision in 1997. It was noted that he had no skin breakdown. Following examination, diagnoses were rendered of skin cancer, bilateral temples and actinic keratoses of the face, ears and bilateral forearms. The Veteran was afforded another skin examination in June 2009 where the findings from the prior skin examination were reiterated. Private clinical records dated between 2008 and 2010 reflect continuing treatment and follow-up for skin symptoms primarily diagnosed as actinic keratoses. VA outpatient clinic notes dated in June 2010 reflect that the Veteran was referred for a skin examination for actinic keratoses and was noted to have various scaly lesions on the upper extremities and left temple. On evaluation, he was observed to have scattered erythematous scaly keratotic macules on the ears, nose, lateral cheeks and forearms. A shave biopsy was ordered. The Veteran asserts that he has dry skin secondary to, or aggravated by skin cancer. As noted, service connection is in effect for skin cancer scars. However, review of the extensive clinical record discloses no competent evidence that links dry skin to skin cancer scars except for the Veteran's statements to this effect. In considering the lay and medical history as detailed above, the appellant is competent to provide evidence about what he had experienced. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Jandreau v. Nicholson, 492, F. 3d 1372 (Fed. Cir. 2007), that competence to establish a diagnosis of a condition could exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the United States Court of Appeals for Veterans Claims (Court) held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet.App. 303 (2007). In the instant case, however, competence and credibility are not synonymous. Whether dry skin is secondary to or aggravated by skin cancer scarring is a medical issue that is beyond a layman's competence. Jandreau. Therefore, while the Veteran may assert that he has dry skin related to skin cancer, he does not have the requisite medical training to provide a competent or probative opinion as to the etiology of the claimed disability. Id. There is otherwise no clinical support in the record to corroborate his assertions. In view of such, the Board concludes that there is no reliable and/probative evidence indicating that dry skin or xerosis is secondary to or aggravated by skin cancer residuals. The Board thus finds that the preponderance of the evidence is against the claim, and service connection must be denied. 38 U.S.C.A. § 5107(b). 2. Service connection for bilateral hearing loss disability and tinnitus. Factual Background The Veteran asserts that he was a gunner's mate for two years in the Navy and that he has had hearing loss and tinnitus since service discharge. Because of his job duties in the service in-service exposure to noise would be consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012.) However, this does not by itself enable a grant of service connection. Rather, the evidence must demonstrate that current bilateral hearing loss disability and tinnitus are related to such service. After reviewing the evidence pertaining to the claims in its entirety, the Board concludes that service connection for bilateral hearing loss disability is not warranted, but that service connection for tinnitus may be conceded. The Veteran underwent a VA audiology examination in December 2008. The examiner indicated that the claims folder was reviewed and the Veteran was considered to be a reliable historian. Military noise exposure reportedly came from three-inch and five-inch guns without ear protection. The appellant also had postservice occupational noise exposure from heavy equipment without the use of hearing protection. He denied recreational noise exposure. The Veteran reported onset of tinnitus during service. Following evaluation and an audiogram, the diagnoses were sensorineural hearing loss in each ear. The examiner opined that tinnitus was as least as likely as not caused by or a result of military noise exposure. An opinion on hearing loss was deferred for an ear, nose and throat examination. The Veteran was afforded a VA ear disease examination in December 2008. The examiner stated that after review of the records, the only audiogram available for review was dated in December 2008. It was noted that the appellant had had a vestibular schwannoma removed from the left ear in 1996 and that the result of the surgery was left ear deafness. The examiner reviewed the pertinent hearing chronology noting that an initial medical examination by VA had indicated normal hearing in the right ear in 1997. It was reported that a Social Security examination indicated that the Veteran had been a heavy equipment operator for a number of years and had hearing evaluations under Occupational Safety and Health Administration while employed with a county road department. After review of the available evidence, the examiner stated that it was impossible to determine the Veteran's hearing status after discharge from service as no objective data were available. A number of factors were cited in leading to an opinion that if the left sided schwannoma were ignored, it might be concluded that there was a subjective 20 percent hearing loss in both ears that existed in 1995. The examiner opined, however, that the appellant's occupational noise exposure exceeded his military noise exposure, and that there was no doubt that noise exposure following military service had had an impact on his hearing. It was reported that a December 2000 note indicating progressive right sided hearing loss was not consistent with military noise exposure as hearing loss stabilized once a person was removed from the noisy environment. The examiner added that the only factor that would result in progressive hearing loss would be aging and continuing occupational noise exposure. The examiner concluded that the Veteran's left sided hearing loss was not result of military noise exposure. It was also opined that with respect to the time frame of exposure, right sided hearing loss was less likely than not a result of military noise exposure, and more likely than not due to continued occupational noise exposure and aging. The examiner added that tinnitus was not secondary to noise exposure in the military as it was not complained of or noted in the medical records until November 2007. The Veteran underwent an audiology evaluation in April 2011 for hearing enhancement purposes. He reported that in 1996, he had a brain tumor removed that was pressing on his auditory nerve and that since the surgery, he had a "dead" left ear. Bilateral hearing loss Although service treatment records are not available, the record indicates that the Veteran's diminished hearing was not clinically documented until 1995. This is more than three decades after discharge from active duty. Maxson v. West, 12 Vet. App. 453 (1999) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). No medically sound basis has been presented attributing such disability to service. Thus, the defect in the Veteran's claim is a lack of probative evidence of a nexus to service. The Board has carefully considered the evidence and the assertions that bilateral hearing loss is of service onset. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau. A layman is competent to report that he experiences through the senses. Layno v. Brown, 6 Vet.App. 465 (1994). The Board does not dispute the Veteran's account of noise exposure during active duty. In this case, however, the more probative evidence indicates remote onset of hearing loss that is unrelated to service. In Hensley v. Brown, 5 Vet.App. 155, 159, the Court held that 38 C.F.R. § 3.385 (2012) does not preclude service connection for a current hearing disability where hearing might have been within normal limits at separation from service. The veteran may still be able to establish service connection for hearing impairment by submitting evidence that it is causally related to service. 38 C.F.R. § 3.303(d); Hensley (1993). The Court found that there is no requirement that there be complaints or treatment in service before service connection for hearing loss can be granted. Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Here, however, there is no evidence of any hearing loss in proximity to service, and, after review of the evidence, VA examiners have opined that bilateral hearing loss is less likely than not related to service. While lay evidence must be considered when a Veteran seeks disability benefits, the opinions of the skilled VA clinical professionals who determined that bilateral hearing loss is less likely than not attributable to service are more probative than the appellant's more recent statements in this regard. Under the circumstances, the Board concludes that the most probative evidence indicates that the Veteran's current bilateral hearing loss disability is unrelated to service. The Board thus finds that the preponderance of the evidence is against the claim and service connection is denied. 38 U.S.C.A. § 5107(b). Tinnitus In this case, the evidence shows a current diagnosis of tinnitus. Although the Board is presented with a nonexistent service record through no fault of the Veteran, his reported military duties involved significant noise exposure during active duty. Additionally, the Veteran is competent to assert the occurrence of in-service injury. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Similarly, as a layperson, he is competent to report that he has experienced ringing in his ears since service. Layno. While there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's statements as competent and credible as to his having been exposed to noise in the military and ringing in the ears that continued thereafter. The record reflects medical evidence that is both for and against the claim of service connection for tinnitus. However, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet.App. 60, 69-70 (1993). After review of the record, the Board finds that evidence is in relative equipoise, and that a finding of tinnitus of service onset may be conceded. Therefore, based on the lay and clinical evidence of record, the Board concludes that the Veteran has acoustic-induced tinnitus due to in-service noise exposure consistent with the nature and circumstances of his service and that it was incurred in line of duty. The benefit of the doubt is thus resolved in favor of the Veteran in granting service connection for tinnitus. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for dry skin (xerosis) is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMAND In December 2008, the Defense Threat Reduction Agency determined that the Veteran was a confirmed participant in Operation DOMINIC I. The Agency reported that the Veteran's radiation dose as a result of his participation was not more than 18 rem external gamma, 2 rem external neutron, 0.1 rem internal committed dose to the brain (alpha), and 0.1 rem internal committed dose to the brain (beta plus gamma). Significantly, the Agency then reported that the Veteran's total skin dose to any skin area (beta plus gamma) was "550 rem" (sic). This latter finding, however, may be incorrect, and consequently, it warrants verification. In this respect, the United States Nuclear Regulatory Commission reports that exposure to a dose of 400 to 450 rem over a very short period, and DOMINIC I may qualify as a short period, would be expected to cause the death of 50 percent of the population exposed to that level of radiation. http://www.nrc.gov/reading-rm/basic-ref/glossary/lethal-dose-ld.html. There is no evidence that fifty percent of the crew of the USS HOPEWELL have died as a result of their participation in DOMINIC I. Hence, given the extremely high dose reported for skin exposure when viewed against the lower values reported the undersigned finds further development to be in order. As this development impacts the claims of entitlement to service connection for diabetes mellitus, a left acoustic neuroma/vestibular schwannoma, coronary artery disease, erectile dysfunction, hypertension, diabetic retinopathy, an eye disorder other than diabetic retinopathy, neuropathy, and a disorder manifested by numbness of the hands, adjudication of these latter issues is deferred. VA outpatient records dated in October 2009 show that the Veteran had an eye examination followed by diagnoses that included a nuclear sclerotic cataract. These were reported to be "not symptomatic yet" in June 2010. However, an assessment of early cataracts was recorded in June 2011. Under 38 C.F.R. § 3.311(b)(2), posterior subcapsular cataracts are a radiogenic disease. However, it is unknown whether the Veteran's eye disorder is characterized as posterior subcapsular cataracts, or whether the eye disorder is otherwise be related to service, to include on the basis of ionizing radiation. The record reflects that the appellant has not had a VA examination in this regard and one should be scheduled. The Board points out that as to this matter, special procedures for establishing service connection for radiogenic diseases may be indicated as outlined in 38 C.F.R. § 3.311. These stipulate that the case be forwarded for review by the VA Under Secretary for Benefits for further consideration of referral for an advisory medical opinion. See 38 C.F.R. § 3.311(c) (2012). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Defense Threat Reduction Agency and request that they verify the reliability of the radiation dosages reported in their December 2008 report. This particularly includes their report that the Veteran's total skin dose to any skin area (beta plus gamma) was 550 rem. If the original report was correct the Agency is requested to explain the large difference with that report and the other dosages reported. If the original report was in error the basis of that error must be reported. 2. Schedule the Veteran for a VA eye examination. Access to the claims folder, Virtual VA and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examination report should include a discussion of the Veteran's documented clinical history and assertions. The examiner should state whether the Veteran has posterior subcapsular cataracts, and if so, whether these are at least as likely as not related to exposure to ionizing radiation in service. The examination report should include complete rationale for the opinion provided. 3. Following completion of the above forward the claims folder and a copy of this remand to the VA Undersecretary for Benefits [or its designee] for appropriate action consistent with 38 C.F.R. § 3.311(c), as provided under § 3.311(b) (i), to include obtaining an opinion from VA's Undersecretary for Health as to whether it is at least as likely as not that the Veteran's diabetes mellitus, left acoustic neuroma/vestibular schwannoma, and/or cataracts were caused by ionizing radiation exposure in service. A comprehensive and detailed rationale should be provided for the conclusions reached. 4. To avoid future remand, the RO should ensure that all requested development has been completed in compliance with this REMAND. If any action is not undertaken or is deficient, it should be sent back for correction. 5. After taking any further development deemed appropriate, re-adjudicate the remaining issue on appeal. If any benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs