Citation Nr: 1329173 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-29 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for right elbow scar. 4. Entitlement to service connection for a skin disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Robert Gillikin II, Attorney at Law ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to June 1981. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). This case was remanded by the Board for further development in September 2012. At that time, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) (for periods other than when a 100 percent rating is not assigned) was also remanded. In July 2013, however, a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective May 22, 2013 was granted. A schedular 100 percent rating was assigned prior to that date. As the benefit sought on appeal has been granted, this issue is no longer before the Board. FINDINGS OF FACT 1. A bilateral hearing loss was not manifest during active service, and a sensorineural hearing loss was not manifest to a compensable degree within one year of separation from active duty and is not otherwise attributable to active service. 2. Tinnitus was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. 3. A right elbow scar disability is not shown by the record. 4. A skin disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service, to include exposure to any herbicides while serving in Vietnam. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a right elbow scar are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a skin disability to include as due to herbicide exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in December 2009, April 2010 and January 2013, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the July 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and VA examinations. Virtual VA records have also been reviewed. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merit of the claims. ANALYSIS Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as sensorineural hearing loss, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The record reveals that the Veteran engaged in combat with the enemy. As participation in combat has been shown, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable in this case. Bilateral Hearing Loss and Tinnitus The Veteran appeals the denial of service connection for a bilateral hearing loss disability and tinnitus. He contends that he was exposed noise during service from ship fog horns, ship whistles, jet engines, machine guns, missiles, and bombs. According to the Veteran, his current hearing loss and tinnitus are related to his in service noise exposure. 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. In relation to his claim, the Veteran was afforded VA examinations in March 2010 and June 2013. Auditory findings in both examinations did not show the above. The Board notes, however, that a hearing loss disability is also found when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. His speech recognition scores during the March 2010 VA examination were 84 percent for the right ear and 92 percent for the left ear. When examined in June 2013 his speech recognition scores were 94 percent for the right ear and 96 percent for the left ear. The March 2010 Maryland CNC Test scores are less than 94 percent and, therefore, a bilateral hearing loss disability has been shown during the appeal. As will be shown below, however, the more probative evidence establishes a remote onset of his disabilities unrelated to service. Service treatment records are negative for any complaints, treatment or diagnoses of hearing loss and/or tinnitus. The Veteran's ears were clinically normal throughout service and at separation. He also denied ear trouble during his separation examination. Also, a sensorineural hearing loss was not clinically shown to be compensably disabling within a year of separation from active duty. The evidence shows that tinnitus and/or hearing loss were not shown until many decades after service. The first mention of hearing loss and/or tinnitus in the record is the January 2009 claim for compensation. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has reviewed all service treatment records and all VA medical records of file. The claims folder does not contain any competent evidence relating the Veteran's hearing loss and/or tinnitus to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. Rather, a VA audiologist opined in March 2010 that the Veteran's tinnitus was less likely as not the result of or caused by the noise exposure in service. According to the examiner, the Veteran stated that his constant bilateral tinnitus started approximately two years ago but when further questioned he stated that he heard the tinnitus at times while in Vietnam. Since the Veteran was discharged in 1981 and he had not heard the tinnitus again for approximately 25 years, she found that the tinnitus was less likely as not the result of or caused by the noise exposure in service. The examiner further expressed that the Veteran presented that day with no significant hearing loss and no claim of problems. There was no hearing loss on which she could render an opinion. In the September 2010 addendum, however, she opined that the Veteran's hearing loss and tinnitus are less likely as not the result of or caused by the noise he was exposed to during service. The Veteran reported that his tinnitus began approximately two to three years ago which is approximately 2007 and he reported no hearing problems she stated. The Veteran was discharged in 1981. Additionally, the June 2013 VA examiner opined that the Veteran's hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in service. Although the Veteran did not meet the criteria for a hearing loss disability during that examination, the examiner stated that audiometric hearing tests in the service treatment records were reviewed and revealed no worsening of hearing acuity beyond what would be considered normally occurring or natural progression. She reasoned that since hearing loss due to noise occurs at the time of the exposure and not subsequently, the Veteran's current loss was not caused by or a result of active duty noise exposure. The June 2013 examiner further opined that the Veteran's tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss as tinnitus is known to be a symptom associated with hearing loss and less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner reasoned that there is no evidence of tinnitus treatment or complaints in the service treatment records and that there is no report of a specific noise event or injury on active duty that initiated tinnitus. With the normal hearing in 1981 at the time of separation, there is no evidence of ear damage from noise in the service treatment records according to the examiner. For the above reasons, she opined it is less likely as not that tinnitus is related to military noise exposure. Although there is no indication in the record that the first audiologist reviewed the Veteran's service treatment records in rendering her opinion, the Board notes that her opinion is consistent with the opinion rendered by the June 2013 examiner. The medical opinions are persuasive and warrant being assigned greater probative weight. The opinions were rendered by medical professionals with the expertise to opine on the matters at issue in this case. In addition, the June 2013 examiner addressed the Veteran's contentions and based her opinion following a review of the claims folder as well as a complete physical examination. The Board notes that as a layperson the Veteran is competent to report ringing in his ears and decreased hearing, and the circumstances surrounding such. See Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran asserts that his hearing loss disability and tinnitus are a result of noise exposure during service to include combat, the Board is aware that the Veteran is a combat veteran. In light of his exposure to combat, the Board accepts that he was exposed to noise. 38 U.S.C.A. § 1154(b). The Board notes, however, that the Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show that his current hearing loss and/or tinnitus are related to service. It is also noted that he has rendered inconsistent statements regarding continuity of symptomatology. When examined for treatment purposes in March 2010, he denied hearing loss and reported an onset of his tinnitus two years ago. In his November 2010 statement, however, he stated that his hearing loss and tinnitus has always affected him continuously and that it has not been until the past two or three years that it has been untolerable. The inconsistencies in the record weigh against the appellant's credibility as to the assertion of an inservice occurrence of his hearing loss and tinnitus, and the continuity of symptomatology. The Board has weighed his statements and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his more contemporaneous in-service history, the clinical findings at service separation and his statements made for treatment purposes. Accordingly, the claims are denied. Right Elbow Scar and Skin Disability The Veteran appeals the denial of service connection for a right elbow scar and a skin disability to include as due to herbicide exposure. Initially, the Board finds that service connection for a right elbow scar is not warranted. To that end, the Veteran contends that his right elbow was hit by shrapnel when he lost his boat and had to go through the jungle during service. He alleges that this injury resulted in the claimed scar. Service treatment records, however, are negative for complaints, symptoms, diagnoses, and/or treatment for a right elbow scar. At separation, the skin was clinically normal. The Veteran also denied skin diseases. Post service treatment records are devoid of a showing of a right elbow scar disability. During the May 2013 VA examination, the Veteran reported dry itchy white skin at the right elbow. Examination, however, did not reveal any scarring. No elbow or forearm condition was diagnosed. At most, there was a two cm. round patchy white dry flaky skin. There was no erythema, tenderness or swelling. The Board notes that for veterans, basic entitlement to disability compensation derives from two statutes, 38 U.S.C.A. §§ 1110 and 1131 the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty. . . ." 38 U.S.C.A. §§ 1110, 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, there is no persuasive evidence that the Veteran has the claimed disability. The Board has considered that the Veteran is competent to report symptoms such as scarring. Layno, 6 Vet. App. 469. The Board notes, however, that the Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show current chronic disease or injury to account for his current complaints. The evidence is devoid of right elbow scarring. While it is shown that the Veteran has dry flaky skin such as been attributed to his dermatitis which is addressed in detail below. According, service connection for a right elbow scar is denied as there is no showing of such. Lastly, the Board finds against service connection for a skin disability, to include as due to herbicide exposure. To that end, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of these conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). In this case, the Veteran served in the Republic of Vietnam. Hence, he is presumed to have been exposed to Agent Orange during such service, for the purpose of this discussion. The record, however, does not establish that the Veteran has been diagnosed with a disability listed as one of the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). In this regard, the Veteran has been diagnosed with dermatitis, folliculitis and cellulitis. These skin disorders are not disorders that may be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). As the skin disabilities for which the Veteran has been diagnosed with are not listed under 38 C.F.R. § 3.309(e), he is not entitled to service connection on a presumptive basis stemming from his exposure to herbicides in service. The regulations governing presumptive service connection for herbicide exposure, however, do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. Essentially, the Veteran contends that he has experienced skin problems, in the form of a groin rash, since service. Service treatment records show that the Veteran was seen in February 1963 for multiple follicular pustules on the abdomen and in January 1969 for verruca removed from the chin. At separation, the skin was clinically normal. The Veteran also denied skin diseases. Post-service VA treatment records show that he was seen in August 2007 for papules on the scrotum and moles on the back and scalp shaved with a small benign epidermal. In the May 2013 VA examination, the Veteran reported that he got a "red itchy groin rash" when he lost his boat and had to go through the woods during service. He denied in service treatment for the rash. Dermatitis and folliculitis were diagnosed. Cellulitis and abscess of the leg and face were also diagnosed. Based on review of the claims file, the Veteran's lay testimony and physical examination, the VA examiner opined it is not at least as likely as not (i.e., a 50 percent probability or greater) that any current skin disability is related to service to include Agent Orange exposure therein. He reasoned there was no treatment for a chronic in service skin condition and no findings for a skin condition until 30 years post military discharge. Simply put, he stated, there is no nexus of care establishing an in service event, injury or condition was related to the Veteran's skin condition post military discharge. The Board has reviewed all service treatment records, all VA medical records of file and the VA examination. The claims folder does not contain any competent evidence relating the Veteran's current skin diseases to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. Rather, the VA examiner found it is not at least as likely as not that any current skin disability is related to service to include Agent Orange exposure therein. The medical opinion is persuasive and warrant being assigned greater probative weight. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and based his opinion following a review of the claims folder as well as a complete physical examination. The Board has considered that the Veteran is competent to report skin rashes. Layno, 6 Vet. App. 469. He has also presented credible testimony in this regard. The Board notes, however, that the Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show that his current disability is related to any incident in service to include herbicide exposure. Accordingly, the claim is denied. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for right elbow scar is denied. Entitlement to service connection for a skin disability, to include as due to herbicide exposure is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs