Citation Nr: 1315115 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-28 095A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Houston, Texas, Regional Office (RO), of the Department of Veterans Affairs (VA). In his appeal (VA Form 9), received in August 2009, the Veteran indicated that he desired to have a hearing before a Veterans Law Judge at the RO. However, in a statement received in about May 2011, the Veteran indicated that he desired to withdraw his request for a hearing. See 38 C.F.R. § 20.702(e) (2012). Accordingly, the Board will proceed without further delay. The Board notes that in November 2007, the RO denied the Veteran's claim for a disorder manifested by nightmares, and that the Veteran perfected an appeal as to this issue. However, in May 2011, the RO granted service connection for posttraumatic stress disorder, the evaluation of which includes his symptoms of nightmares. See 38 C.F.R. § 4.130 (2012). An "Appeal Certification to BVA Worksheet" indicates that this issue is no longer on appeal. Given the foregoing, this issue is no longer considered to be on appeal. See 38 C.F.R. § 4.14 (2012) (avoidance of pyramiding). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a skin disability that is related to active duty service. 2. The evidence of record does not show that the Veteran has tinnitus that is related to active duty service. CONCLUSIONS OF LAW 1. A skin disability was not incurred in, or otherwise due to, the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Tinnitus was not incurred in, or otherwise due, the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for a skin disability, and tinnitus. The Veteran has indicated that he was treated for skin symptoms during service, and that he has had tinnitus ever since being near an artillery piece that shot a "7-charge" round without warning. See Veteran's claim (VA Form 21-526), received in August 2005; VA Form 21-4142, received in October 2005; VA Form 21-4138, received in October 2005. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Veteran's service records show that he had training in artillery, followed by service with an artillery unit, to include service in the Republic of Vietnam for about one year, between 1968 and 1969. The Veteran's service treatment reports do not show any relevant complaints, treatment, or diagnoses. The Veteran's separation examination report, dated in August 1969, shows that his ears, drums, and skin, were all clinically evaluated as normal. In an associated "report of medical history," the Veteran denied having had skin diseases, or ear trouble. See also August 1967 examination report and associated report of medical history (same). As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1993 and 2010. The relevant evidence is summarized as follows: Private treatment reports show that in May 1995, the Veteran complained of ringing in his ears, without hearing loss. There was no diagnosis. Other private treatment reports show that he was found to have hearing loss beginning in August 2005. A VA audiometric examination report, dated in August 2006, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had been exposed to artillery during service, followed by employment in a loan office after service, during which there was no noise exposure. He reported that he had a history that included tinnitus since 1968. The examiner stated that the Veteran's current level and type of hearing loss support his current claim of tinnitus. The examiner concluded that it was not at least as likely as not that the Veteran's tinnitus is due to military noise exposure, explaining that he had normal pure tone thresholds from 500 Hz to 4,000 Hz bilaterally upon separation from service. VA progress notes include a January 2007 report, which notes that the Veteran complained of a 1-year history of sores on the back of his scalp, with slight itching, that were unresponsive to topical antibiotic creams. On examination, he had nodular, erythematous scaly lesions at the posterior scalp line. The assessments included scalp lesions, uncertain etiology, unresponsive to topical antibiotics. The report indicates that he was to see a private dermatologist, and to be given a trial of Triamcinolone. As an initial matter, the Board finds that the Veteran is not a credible historian. He has asserted that he was treated for skin symptoms during service, and that he has had both skin symptoms, and tinnitus, during and since his service. However, there is no record of treatment for skin symptoms during service. In addition, his separation examination report, dated in August 1969, shows that his skin, ears, and drums, were clinically evaluated as normal. In the associated "report of medical history," he denied having a history of skin diseases, or ear trouble. A January 2007 VA progress note shows that he sought treatment for a 1-year history of sores on his scalp. The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board further finds that the claims must be denied. The Veteran was not treated for either of the claimed conditions during service, nor were either of the claimed conditions shown upon separation from service. Therefore the claimed conditions are not shown during service. See 38 C.F.R. § 3.303(a), (b). Furthermore, the earliest post-service medical evidence of either of the claimed conditions is dated no earlier than 1995, which is about 25 years after separation from service. The Veteran has been found not to be credible; this period without treatment is evidence that there was not a continuity of symptomatology, and it weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this regard, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) (2012), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no competent opinion in support of either of the claims. The Board therefore finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The issues on appeal are based on the contention that the Veteran has a skin disability, and tinnitus, due to service. To the extent that the Veteran asserts that he began having skin and tinnitus symptoms during service, his statements would normally be competent evidence to show that he experienced those symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has been found not to be credible, and he does not have the requisite skills, knowledge, or training, to be competent to state whether his symptoms were sufficient for a diagnosis, or whether either of the claimed disorders are related to his service. In this case, the Veteran's service medical records do not show any relevant findings, treatment, or diagnoses. His post-service medical records do not show either of the claimed symptoms prior to 1995, which is about 25 years after service. There is no competent opinion in support of either claim. Considering the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions that he has a skin disability, and tinnitus, which are related to service. As a final matter, although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, the applicable law does not include tinnitus, or any demonstrated skin condition, as a condition for which presumptive service connection may be granted. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In addition, there is no competent evidence of record which associates tinnitus, or any demonstrated skin condition, with exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, service connection is not warranted on this basis. The Board finds that the preponderance of the evidence is against the claims for service connection, and that the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist The Board finds that the duties to notify have been fulfilled by information provided to the Veteran in letters from the RO dated in March 2006 and July 2007. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Those letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service medical reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claim for tinnitus, the Veteran has been afforded an examination, and an etiological opinion has been obtained. To the extent that the examiner failed to provide an explanation for his conclusion that the Veteran's tinnitus is not related to his service, the Board notes that there are no relevant service treatment reports, that the first medical evidence of tinnitus is dated about 25 years after separation from service (in 1995), and that the Veteran has been found not to be credible. Therefore, there is no reasonable possibility that any further development would substantiate that claim, and additional development is not required. 38 C.F.R. § 3.159(d) (2012); cf. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With regard to the claim for a skin disability, the Veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against the claim. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest medical evidence of the claimed condition is dated no earlier than 2007. The Veteran has been found not to be credible, and there is no competent evidence to show that the claimed condition is related to service, which ended in 1969, to include as due to exposure to Agent Orange. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claims on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims does not cause any prejudice to the Veteran. ORDER The appeal is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs