Citation Nr: 1325158 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-06 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for asbestosis and bronchitis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for chloracne. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The issue of entitlement to service connection for a dental disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have chronic asbestosis or chronic bronchitis that is in any way related to active service. 2. A skin disorder diagnosed as chloracne is as likely as not related to active service. 3. The Veteran's tinnitus is not related to active service. CONCLUSIONS OF LAW 1. The Veteran does not have chronic asbestosis or chronic bronchitis that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. With resolution of reasonable doubt in the appellant's favor, a skin disability diagnosed as chloracne was incurred in active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2008 and June 2009 of the information and evidence needed to substantiate and complete a claim, 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. The case was most recent readjudicated in September 2010. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran's service treatment records indicate that the Veteran suffered from an upper respiratory infection on three separate occasions; in January 1963, May 1963, and September 1963. Despite findings in service of upper respiratory symptoms, the Board cannot conclude a "chronic" lung condition was incurred during service. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In addition, on the clinical examination for separation from service, the Veteran's lungs were evaluated as normal and chest x-ray was negative. Further, on the Report of Medical History completed by the veteran in September 1966 in conjunction with his separation physical, the veteran denied ever having shortness of breath, pain or pressure in chest, and chronic cough. With respect to chloracne and tinnitus, the service treatment records are absent complaints, findings or diagnoses of these two conditions during service. On the clinical examination for separation from service, the Veteran's ears, drums, and skin were evaluated as normal. On the Report of Medical History completed by the Veteran in September 1966, he denied ever having ear trouble or cysts. Thus, there is no medical evidence that shows that the Veteran suffered from chloracne or tinnitus during service. As for statutory presumptions, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, chloracne or other acneform disease consistent with chloracne shall be service-connected, even though there is no record of such disease during service. VA regulations further provide presumptive service connection for chloracne or other acneform disease consistent with chloracne manifested within one year of the last date on which the Veteran was exposed to an herbicide agent 38 C.F.R. § 3.307(a)(6) , 3.309(e). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his claim, the Veteran submitted an AF Form 626, Temporary Duty Order - Military, indicating temporary duty on or about July 28, 1966 for approximately 30 days at Nha Trang Airbase, Republic of Vietnam. Therefore, his in-service exposure to herbicides is conceded. According to post-service medical records, the first skin lesions of record are reported in February 2008; however, a February 2009 VA Occupational Medicine Note which indicates that the Veteran had a recurrent cystic lesion on his face and neck region since 1980 and the he had a definite diagnosis for chloracne (cystic acne). Of record is a February 2009 VA letter to the Veteran indicating that he reported symptoms and conditions that may be related to Agent Orange and that based on his medical evaluation, they had diagnosed chloracne that may be related to Agent Orange exposure. As noted above, presumptive service connection for chloracne requires that it be manifest to a degree of 10 percent or more within one year from the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam. However, under Combee, service connection can also be granted on a direct basis. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the VA Agent Orange examiner opined that chloracne that may be related to Agent Orange exposure. This opinion is uncontradicted and was also based upon an examination of the Veteran and his reported history of Agent Orange exposure. As such, the Board accords this opinion probative value. Therefore, the Board concludes that service connection for chloracne is warranted. With respect to asbestosis, the post-service medical records are absent any diagnosis of asbestosis. Thus, the medical evidence fails to show that the Veteran currently suffers from asbestosis. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a diagnosis of asbestosis exists and that it was caused by or aggravated by the Veteran's military service, the criteria for establishing service connection for asbestosis have not been established. 38 C.F.R. § 3.303. With respect to bronchitis, the post-service medical records are absent any diagnoses of chronic bronchitis although there are diagnoses of acute bronchitis dated prior to the Veteran's claim in August 2008. Thus, the medical evidence fails to show that the Veteran currently suffers from chronic bronchitis. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a diagnosis of chronic bronchitis exists and that it was caused by or aggravated by the Veteran's military service, the criteria for establishing service connection for chronic bronchitis have not been established. 38 C.F.R. § 3.303. With respect to tinnitus, the appellant clearly has a current disability. The Veteran underwent VA examination in September 2008 at which time a diagnosis of tinnitus was rendered. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional, however, has ever related this condition to the Veteran's military service. The September 2008 VA examiner stated that the Veteran reported that his constant bilateral tinnitus began 10 years or more prior. The examiner noted that the Veteran separated from service more than 40 years prior and that there was no evidence linking the onset of tinnitus with the Veteran's time in the military. The examiner noted that no tinnitus complaint was found in the service treatment records. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, the medical evidence does not show treatment or diagnosis of these problems until many years after service. Although the Veteran contends that he has asbestosis, bronchitis, and tinnitus that are related to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, diagnosis of respiratory symptoms and determination of etiology for respiratory symptoms and tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for asbestosis and bronchitis as well as the claim for service connection for tinnitus, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for asbestosis and bronchitis is denied. Entitlement to service connection for chloracne is granted. Entitlement to service connection for tinnitus is denied. REMAND With respect to the issue of entitlement to service connection for bilateral hearing loss, the evidence demonstrates that the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2012). Thus, the question is one of nexus. The record contains a September 2008 VA audiological evaluation. The audiologist acknowledged the Veteran's self-reported history that he was an electrician on C130s for four years, that he worked inside and outside of C130s, and that he had to be present when the aircraft started up at times. The Veteran also reported that his left ear has been worse than the right ear for many years. After examination, the audiologist ultimately opined that the Veteran's hearing loss was not caused or the result of military service. The audiologist noted that the hearing loss opinion was based upon the Veteran having had normal hearing bilaterally upon enlistment and separation as evidenced upon audiograms conducted at that time. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection, and evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board notes that, although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Here, however, the audiologist appears to have failed to take into account the military noise exposure. The Veteran's DD Form 214 indicates that his military specialty was "Acft Elec Rpmn." Service personnel records indicate that the Veteran's duty title was "C-130 Elect Sys Repmn" from May 1963 until he was released from active duty in October 1966. The Duty MOS Noise Exposure Listing, see M21-1MR, Part III, Subpart iv, 4.B.12.c., indicates that based on the Veteran's MOS as an aircraft electrician, he had a "high" probability of exposure to hazardous noise. As such, the Board concedes that the Veteran was exposed to military noise exposure. As it is unclear if the examiner considered the Veteran's exposure to noise in service, the Board finds that the opinion is inadequate for appellate review and a new opinion is needed prior to deciding the claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his hearing loss that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The claims file should be returned to the examiner who conducted the September 2008 VA audiological examination for an addendum opinion. The claim file should be thoroughly reviewed and the examiner must note that a review of the claims file was conducted. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss was incurred or aggravated as a result of the Veteran's military service, to include as a result of in-service acoustic trauma. The examiner must consider the conceded noise exposure in service. If the examiner who conducted the September 2008 VA audiological examination is unavailable, an additional VA examination should be conducted. If the examiner is available but cannot enter an opinion without another examination, such examination should be scheduled. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs