Citation Nr: 1329555	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  10-06 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1. Entitlement to service connection for recurrent 
respiratory infections or respiratory condition, to include 
as due to an undiagnosed illness.

2. Entitlement to service connection for primary insomnia, 
to include as due to an undiagnosed illness.

3. Entitlement to service connection for chronic fatigue, to 
include as due to an undiagnosed illness.

4. Entitlement to service connection for dermatitis to the 
left hand, to include as due to an undiagnosed illness.

5. Whether new and material evidence has been submitted 
sufficient to reopen the previously denied claim of 
entitlement to service connection for fungus of the groin 
and feet (now claimed as "foot rot"), and if so, whether 
service connection is warranted.

6. Entitlement to service connection for bilateral hearing 
loss.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1986 to 
August 1986 and November 1990 to June 1991.  This appeal 
comes to the Board of Veterans' Appeals (Board) from 
September 2009 and January 2010 rating decisions by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Lincoln, Nebraska.

The Board has not only reviewed the Veteran's physical 
claims file but also the Veteran's file on the "Virtual VA" 
system to insure a total review of the evidence.  

The issues of entitlement to service connection for 
recurrent respiratory infection condition, fatigue, and 
insomnia, are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is no current disability of dermatitis.

2. The July 1997 rating decision denying service connection 
for fungus involving the groin and feet is final.

3. Evidence received since the July 1997 rating decision was 
not previously of record and relates to an unestablished 
fact necessary to substantiate the claim of entitlement to 
service connection for foot fungus, to include as due to an 
undiagnosed illness. 

4. The tinea pedis is not incurred in or aggravated during 
active service, to include as due to an undiagnosed illness.

5. The Veteran's bilateral hearing loss pre-existed the 
Veteran's entrance into the first period of active service 
and did not increase in severity beyond the natural progress 
of the disease; the bilateral hearing loss clearly and 
unmistakably pre-existed the second period of service and 
was not clearly and unmistakably aggravated thereby.


CONCLUSIONS OF LAW

1. The criteria for service connection for dermatitis, to 
include as due to an undiagnosed illness, have not been met.  
38 U.S.C.A. §§ 1110, 1117, 1131, 5103A, 5107 (West 2002 & 
Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.317 (2012).

2. New and material evidence has been submitted since the 
July 1997 rating decision, and the claim of service 
connection for "foot rot," to include as due to an 
undiagnosed illness, is reopened.  38 U.S.C.A. §§ 5108, 
7104(b) (West Supp. 2011); 38 C.F.R. § 3.156(a) (2012). 

3. The criteria for service connection for tinea pedis, to 
include as due to an undiagnosed illness, have not been met.  
38 U.S.C.A. §§ 1110, 1117, 1131, 5103A, 5107 (West 2002 & 
Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.317 (2012).

4. The Veteran's preexisting bilateral hearing loss was not 
aggravated in active service.  38 U.S.C.A. §§ 1110, 1131, 
1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 
3.304, 3.306, 3.385 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the 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, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek 
to provide; and (3) that the claimant is expected to 
provide.  38 C.F.R. § 3.159(b)(1).  Such notice should also 
address VA's practices in assigning disability evaluations 
and effective dates for those evaluations.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
While the required notice should be furnished prior to the 
issuance of the appealed rating decision, any initial errors 
of notice will not be prejudicial if: 1) corrective actions 
(e.g., issuance of a post-adjudication notice letter 
containing the required information) are taken, and 2) the 
appeal is readjudicated (e.g., in a  Supplemental Statement 
of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 
(Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of 
letters sent to the Veteran on February 2009 and October 
2009.  In the letters, the RO informed the Veteran of what 
evidence was required to substantiate the claims for service 
connection and of the Veteran's and VA's respective duties 
for obtaining evidence.  In the letters the RO also provided 
notice with regard to how VA assigns disability ratings and 
effective dates in the event that service connection is 
established.  Thus, the duty to notify has been satisfied.

VA also has a duty to assist the Veteran with the 
development of facts pertinent to the appeal.  38 U.S.C.A. § 
5103A; 38 C.F.R. § 3.159(c).  This duty includes the 
obtaining of "relevant" records in the custody of a federal 
department or agency under 38 C.F.R. § 3.159(c)(2), as well 
as records not in federal custody (e.g., private medical 
records) under 38 C.F.R. § 3.159(c)(1).  VA will also 
provide a medical examination if such examination is 
determined to be "necessary" to decide the claim.  38 C.F.R. 
§ 3.159(c)(4).

The Board finds that all necessary development has been 
accomplished.  The RO has obtained the Veteran's service 
treatment records (STRs).  The Veteran submitted a private 
treatment record but did not indicate any other private or 
VA treatment records that should be obtained.  Neither the 
Veteran nor his representative has identified, and the 
record does not otherwise indicate, any additional existing 
evidence that is necessary for a fair adjudication of the 
claim that has not been obtained.  

The Veteran was afforded VA examinations and opinions in 
September 2009, December 2009, and April 2010.  The 
examiners, medical professionals, obtained an accurate 
history, listened to the Veteran's assertions, and performed 
the necessary tests.  The examiners provided the Board with 
sufficient information to decide the issues of service 
connection, to include by providing supporting rationale for 
the opinions provided.  Therefore, the Board finds that the 
examinations are adequate and contains sufficient 
information to decide the issues on appeal.  Barr v. 
Nicholson, 21 Vet. App. 303, 311 (2007).

Hence, no further notice or assistance to the Veteran is 
required to fulfill VA's duty to assist in the development 
of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), 
aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 
15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 
183.

Claims

Service connection will be granted if it is shown that the 
veteran suffers from a disability resulting from personal 
injury suffered or disease contracted in the line of duty, 
or for aggravation of a preexisting injury suffered or 
disease contracted in the line of duty, during active 
military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  Disorders diagnosed after discharge will still be 
service connected if all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d); see also Combee 
v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Additionally, service connection may be granted, on a 
secondary basis, for a disability which is proximately due 
to or the result of an established service-connected 
disorder.  38 C.F.R. § 3.310 (2012).  

To establish service connection, there must be a competent 
diagnosis of a current disability; medical or, in certain 
cases, lay evidence of in-service occurrence or aggravation 
of a disease or injury; and competent evidence of a nexus 
between an in-service injury or disease and the current 
disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); 
see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
 
Competent medical evidence is evidence provided by a person 
who is qualified through education, training, or experience 
to offer medical diagnoses, statements, or opinions.  
Competent medical evidence may also include statements 
conveying sound medical principles found in medical 
treatises.  It also includes statements contained in 
authoritative writings, such as medical and scientific 
articles and research reports or analyses.  38 C.F.R. § 
3.159(a)(1).  Competent lay evidence is any evidence not 
requiring that the proponent have specialized education, 
training, or experience.  Lay evidence is competent if it is 
provided by a person who has knowledge of facts or 
circumstances and conveys matters that can be observed and 
described by a lay person.  38 C.F.R. § 3.159(a)(2).  This 
may include some medical matters, such as describing 
symptoms or relating a contemporaneous medical diagnosis.  
Jandreau, 492 F.3d 1372.   

Because the Veteran served in the Southwest Asia Theater of 
operations during the Persian Gulf War, service connection 
may also be established under 38 C.F.R. § 3.317.  See 
Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub 
nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); 
see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 
2000).

Under that section, service connection may be warranted for 
a Persian Gulf Veteran who exhibits objective indications of 
a qualifying chronic disability that became manifest during 
active military, naval, or air service in the Southwest Asia 
Theater of operations during the Persian Gulf War.  For 
disability due to undiagnosed illness and medically 
unexplained chronic multi symptom illness, the disability 
must have been manifest either during active military 
service in the Southwest Asia Theater of operations or to a 
degree of 10 percent or more not later than December 31, 
2016.  See 76 Fed. Reg. 81, 834 (Dec. 29, 2011) (extending 
the delimiting date). 

For purposes of 38 C.F.R. § 3.317 a qualifying chronic 
disability is either: (1) an undiagnosed illness or (2) a 
medically unexplained chronic multi symptom illness that is 
defined by a cluster of signs or symptoms, such as chronic 
fatigue syndrome, fibromyalgia, and functional 
gastrointestinal disorders.

An undiagnosed illness is defined as a condition that by 
history, physical examination and laboratory tests cannot be 
attributed to a known clinical diagnosis.  In the case of 
claims based on undiagnosed illness under 38 U.S.C.A. § 
1117; 38 C.F.R. § 3.317, unlike those for "direct service 
connection," there is no requirement that there be competent 
evidence of a nexus between the claimed illness and service.  
Guiterrez v. Principi, 19 Vet. App. at 8-9.  Further, lay 
persons are competent to report objective signs of illness.  
Id.  To determine whether the undiagnosed illness is 
manifested to a degree of 10 percent or more the condition 
must be rated by analogy to a disease or injury in which the 
functions affected, anatomical location or symptomatology 
are similar.  See 38 C.F.R. § 3.317(a)(5); see also 
Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

A medically unexplained chronic multisymptom illness is one 
defined by a cluster of signs or symptoms and specifically 
includes chronic fatigue syndrome, fibromyalgia, and 
functional gastrointestinal disorders (excluding structural 
gastrointestinal diseases).  A "medically unexplained 
chronic multisymptom illness" means a diagnosed illness 
without conclusive pathophysiology or etiology that is 
characterized by overlapping symptoms and signs and has 
features such as fatigue, pain, disability out of proportion 
to physical findings, and inconsistent demonstration of 
laboratory abnormalities.  Chronic multisymptom illnesses of 
partially understood etiology and pathophysiology will not 
be considered medically unexplained.  38 C.F.R. § 
3.317(a)(2)(ii).

"Objective indications of chronic disability" include both 
"signs," in the medical sense of objective evidence 
perceptible to an examining physician, and other, non-
medical indicators that are capable of independent 
verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms 
that may be manifestations of undiagnosed illness or 
medically unexplained chronic multisymptom illness include, 
but are not limited to, the following: (1) fatigue; (2) 
signs or symptoms involving skin; (3) headache; (4) muscle 
pain; (5) joint pain; (6) neurologic signs or symptoms; (7) 
neuropsychological signs or symptoms; (8) signs or symptoms 
involving the respiratory system (upper or lower); (9) sleep 
disturbances; (10) gastrointestinal signs or symptoms; (11) 
cardiovascular signs or symptoms; (12) abnormal weight loss; 
and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

For purposes of section 3.317, disabilities that have 
existed for six months or more and disabilities that exhibit 
intermittent episodes of improvement and worsening over a 
six-month period will be considered chronic.  The six-month 
period of chronicity will be measured from the earliest date 
on which the pertinent evidence establishes that the signs 
or symptoms of the disability first became manifest.  38 
C.F.R. § 3.317(a)(4).

In cases where a Veteran applies for service connection 
under 38 C.F.R. § 3.317 but is found to have a disability 
attributable to a known diagnosis, further consideration 
under the direct service connection provisions of 38 
U.S.C.A. § 1110, 1131 is warranted.  See Combee v. Brown, 34 
F.3d 1039, 1042 (Fed. Cir. 1994).

        Dermatitis

STRs reflect that in May 1991 the Veteran complained of a 
rash on his left hand.  No other skin complaints, treatment, 
or diagnoses were noted. The Veteran's skin was found to be 
normal at his April 1991 discharge examination.  His skin 
was also found normal on examination in September 1986 and 
April 1987.

In December 2009 the Veteran was afforded a VA Gulf War 
examination.  He told the examiner that in approximately 
2007 (over 15 years after discharge) he developed a rash 
affecting his chest, back, and bilateral upper extremities.  
A dermatologist diagnosed irrative dermatitis of unknown 
trigger and prescribed prednisone and topical steroid cream.  
The Veteran reported the rash has not reoccurred. The 
examiner found the Veteran's dermatitis to the left hand in 
service and 2007 irritative dermatitis both resolved without 
residuals.  

The Board finds that the evidence does not support that the 
Veteran currently has a current skin disability.  There is a 
current disability for VA purposes when a claimant has a 
disability at the time a claim is filed or during the 
pendency of that claim. McClain v. Nicholson, 21 Vet. App. 
319, 321 (2007).  In addition, whether a recent diagnosis of 
disability prior to a claim for benefits is relevant 
evidence that the Board must address in determining whether 
a current disability exists. Romanowsky v. Shinseki, __ Vet. 
App. __ (May 9, 2013). 

Rather, the evidence of record, including the Veteran's 
description of his condition to the VA examiner, is that the 
Veteran experienced two isolated episodes of a skin rash and 
dermatitis, years apart, both of which resolved.  The most 
recent episode was in 2007, which was well prior to the 2009 
claim for service connection.  Further, the Veteran reported 
his 2007 rash had been diagnosed as irritative dermatitis, 
and thus is not an undiagnosed illness.  The Board finds 
that the Veteran's lay statements are both competent and 
credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. 
Cir. 2007) (noting that lay testimony is competent to 
establish a diagnosis where the layperson is competent to 
identify the medical condition, is reporting a 
contemporaneous medical diagnosis, or describes symptoms 
that support a later diagnosis by a medical professional); 
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) 
(addressing lay evidence as potentially competent to support 
presence of disability even where not corroborated by 
contemporaneous medical evidence).  In addition, the 
examiner relied on those findings in making his conclusions.  
Accordingly, the examiner's conclusions that there is no 
dermatitis as it resolved approximately two years prior to 
the claim being filed are also competent, credible, and 
highly probative.  Therefore, service connection cannot be 
granted for dermatitis as an undiagnosed illness nor granted 
on a direct basis as there is no evidence of a current 
disability.

As the preponderance of the evidence is against this claim, 
the benefit of the doubt doctrine does not apply, and the 
claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102; Gilbert, 1 Vet. App. 49.

        Foot Fungus

The Veteran stated in his October 2009 claim that he 
experiences "foot rot."  The RO previously denied service 
connection for "fungus involving groin and feet" in July 
1997.  The Veteran did not appeal that decision and no new 
and material evidence was submitted prior to the expiration 
of the appeal period, nor were additional service department 
records associated with the file.  Therefore, the decision 
became final and pursuant to 38 U.S.C.A. § 5108, new and 
material evidence must be presented or secured to reopen the 
claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 
285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 
(1996).  In this case, the December 2009 VA Gulf War 
examination attended by the Veteran qualifies as new and 
material evidence and the claim is considered reopened.  
However, the Board finds the Veteran is not entitled to 
service connection for foot fungus.

With the exception of the Veteran's report of a rash on his 
left hand as discussed above, his STRs contain no skin 
complaints, to include with regard to his feet.  The 
Veteran's skin was found to be normal at his April 1991 
discharge examination and the Veteran reported no history of 
skin disease at that time.  His skin was also found normal 
on examination in September 1986 and April 1987.

At his December 2009 VA Gulf War examination, the Veteran 
reported that in 2007 he developed a worsening of tinea 
pedis, developing a vesicular tinea pedis affecting the 
plantar aspect of the right foot.  He reported he was seen 
by a podiatrist who prescribed antifungals and the condition 
resolved.  He reported he continues to experience some mild 
tinea pedis flare-ups for which he uses over-the-counter 
powders or sprays.  In an April 2010 addendum medical 
opinion, the VA examiner stated that the Veteran's foot 
condition would not be considered an undiagnosed illness 
because it has been diagnosed as tinea pedis.  The examiner 
explained that tinea pedis is due to a fungal or 
dermatophytic infection of the skin of the foot and has a 
known and fully explained etiology and is also not a 
multisymptom illness.  The examiner noted that the Veteran's 
service treatment records do not reflect that he was treated 
for the condition in service.  The examiner stated that the 
organisms responsible for causing tinea pedis are common 
worldwide and it would be mere speculation to state when the 
Veteran was first exposed.

First, the Board finds that by his own competent and 
credible statements, the Veteran has provided clear evidence 
that his foot condition is not an undiagnosed illness, but 
rather has been diagnosed as tinea pedis.  Therefore, the 
condition is not entitled to service connection as an 
undiagnosed illness under 38 C.F.R. § 3.317.

Second, the Board finds direct service connection is not 
warranted for the Veteran's tinea pedis.  The Veteran has 
not claimed his tinea pedis began in service and STRs 
indicate there was no foot skin condition during service.  
Even if the Veteran had provided competent and credible 
assertions of a skin condition of the feet and groin during 
service, his own statements outweigh such assertions.  In an 
April 1991 report of medical history the Veteran reported 
there was no history of skin disease and on his May 1991 
Southwest Asia demobilization/redeployment medical 
evaluation, he reported no rash, skin infection, or sores.  
Thus, there is no in-service disease.  

However, the Veteran may still establish service connection 
if the evidence shows a nexus between his tinea pedis and 
service.  With regard to that question, the December 2009 VA 
examiner opined that it would be mere speculation to opine 
as to whether the Veteran was first exposed to the organism 
that causes tinea pedis in service.  Furthermore, the 
examiner supported that opinion by noting that exposure 
required for the development of tinea pedis is fungal or 
dermatophytic organisms and these organisms are quite common 
wordwide and not exclusive to Southwest Asia.  The Board 
accords this opinion significant weight as it is supported 
by rationale and is based upon the evidence of record.

To the extent that the Veteran has opined that his tinea 
pedis is due to service, the Board finds he is not competent 
to do so.  Although the Veteran is competent to state what 
symptoms he observes, such as the presence of a rash, the 
etiology of tinea pedis is not the type of medical issue for 
which a lay opinion may be accepted as competent evidence as 
the Veteran does not have the education, training, or 
experience to offer such an opinion.  See Kahana, 24 Vet. 
App. At 438; see also Jandreau, 492 F.3d at 1376-77.

Therefore, the competent evidence of record does not 
demonstrate a nexus between the Veteran's tinea pedis and 
service.  Rather, the only competent etiological opinion is 
that of the VA examiner noting that to attribute the 
Veteran's tinea pedis to service would be mere speculation.  
In addition, the Board notes the multi-year gap between when 
the Veteran left active service in 1991 and the first 
suggestion of foot fungus in 1997 when he filed a VA claim 
and the even longer gap to 2007 when a diagnosis of tinea 
pedis was made.  Therefore, the Board finds the 
preponderance of the evidence does not show that the 
Veteran's tinea pedis was incurred in or as a result of 
service. 

As a preponderance of the evidence is against the Veteran's 
claim, the benefit of the doubt doctrine does not apply.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 
49.

        Hearing Loss

Impaired hearing is considered a disability for VA purposes 
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; or when speech recognition scores using 
the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 
3.385. 

The Veteran had a private audiological examination done in 
January 2009.  The audiogram showed pure tone thresholds, in 
decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
55
65
LEFT
10
10
10
55
60

His word recognition scores were 92 percent bilaterally.  
Thus, the evidence shows the Veteran has a current hearing 
loss disability.

A veteran who served after December 31, 1946, is presumed to 
be in sound condition when he or she entered into military 
service, except for conditions noted on the entrance 
examination, or where clear and unmistakable evidence 
demonstrates that the injury or disease existed before 
acceptance and enrollment and was not aggravated by such 
service.  38 U.S.C.A. §§ 1111, 1132.  

A pre-existing injury or disease will be considered to have 
been aggravated during service when there is an increase in 
disability during service, unless there is a specific 
finding that the increase in disability is due to the 
natural progression of the disease.  38 U.S.C.A. § 1153; 38 
C.F.R. § 3.306(a).  Clear and unmistakable evidence (obvious 
or manifest) is required to rebut the presumption of 
aggravation where the pre-service disability underwent an 
increase in severity during service.  38 C.F.R. § 3.306(b).  
The presumption of aggravation applies only when pre-service 
disability increases in severity during service.  Beverly v. 
Brown, 9 Vet. App. 402, 405 (1996).

In this case, the Veteran had two periods of active service, 
from June 1986 to August 1986 and from November 1990 to June 
1991.



Prior to the Veteran's first period of service, an April 
1985 audiogram shows pure tone thresholds, in decibels, as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
N/A
50
LEFT
20
20
20
N/A
50

Thus, there is bilateral hearing loss on service entrance.

A September 1986 audiogram, conducted within one month of 
discharge from the Veteran's first period of active duty, 
indicates the following: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
35
LEFT
0
0
0
15
30

In the period between his two periods of active duty, the 
Veteran had audiological examinations conducted in April 
1987, April 1988, April 1989, and June 1990.  The 1987 
examination noted the following:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
45
LEFT
0
0
0
20
45



The 1988 examination noted the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
40
LEFT
0
0
0
10
40

The 1989 examination noted the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
15
50
LEFT
0
0
0
0
30

The 1990 examination noted the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
5
40
LEFT
10
0
0
20
40

Each of these examinations shows bilateral hearing loss that 
at no point exceeded the level of severity noted upon 
service entrance.  All seven show pure tone thresholds of 0 
to 10 decibels in the 500 to 2000 Hz range, representing an 
improvement over the Veteran's April 1985 examination.  His 
hearing in the 3000 Hz range, which was not measured on his 
enlistment examination, was measured at between 0 and 25 
decibels on all seven subsequent examinations.

The examinations also showed that the Veteran's hearing loss 
in the 4000 Hz range remained roughly static over the years, 
ranging between 30 and 50 decibels bilaterally, and never 
testing above the pure tone threshold of 50 decibels 
measured bilaterally on his enlistment examination.  
Specifically, in September 1986, one month following the end 
of his first period of active service, his hearing was 
measured as having a pure tone threshold of 35 decibels in 
his right ear and 30 in his left ear.  

In June 1990, five months prior to the start of his second 
period of active duty his hearing was measured as having a 
pure tone threshold of 40 decibels bilaterally at 4000 Hz.  
In August 1991, two months after the Veteran's second period 
of active service ended, his audiogram showed pure tone 
thresholds of 40 decibels in his right ear and 50 in his 
left ear at 4000 Hz.

The Veteran submitted the report of the audiologist who 
performed the January 2009 examination.  He stated that he 
reviewed "some" of the Veteran's service records, but did 
not specify which records.  The audiologist opined that "it 
is quite likely" that the Veteran's noise exposure in 
service was the beginning of his hearing loss.  The 
audiologist stated that the type and degree of his hearing 
level is consistent with noise induced hearing loss.  The 
audiologist noted the Veteran's report of being exposed to 
noise from rifles, pistols, loud trucks, and particularly 
helicopters in service.

In September 2009 a VA medical opinion was obtained.  The 
examiner reviewed the Veteran's STRs, noting the Veteran's 
bilateral moderate hearing loss at entrance into service 
with stable hearing loss throughout service and on his 
discharge examination in 1991.  The examiner also reviewed 
the January 2009 private audiological examination.  The 
examiner opined that the Veteran's pre-existing high 
frequency hearing loss was not exacerbated by acoustic 
trauma during service.

As an initial matter, the Board recognizes the Veteran's 
report of noise exposure in service, including helicopters, 
and notes that his service records reflect he was a flight 
medic.

With regard to the Veteran's first term of active duty, the 
Board finds the presumption of soundness does not apply as 
the Veteran's hearing loss was noted on his enlistment 
examination.  Therefore, as his hearing loss pre-existed 
service, the Veteran cannot bring a claim for service 
connection for hearing loss, but he may bring a claim for 
service-connected aggravation of that disorder.  Wagner v. 
Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  In that case, 38 
U.S.C.A. § 1153 applies and the burden falls on the Veteran 
to establish aggravation.  See Jensen v. Brown, 19 F.3d 
1413, 1417 (Fed. Cir. 1994).

Thus, the question is whether the Veteran's hearing loss, 
which preexisted service, was permanently, chronically 
aggravated beyond the natural progression of the condition 
during his service.  In this case, the Veteran has not 
carried his burden of showing his hearing loss was 
aggravated by service.

In fact, the Veteran's audiological examination in September 
1986, one month after the end of his first period of active 
duty shows an improvement in the Veteran's hearing 
bilaterally at all frequencies compared to his April 1985 
enlistment examination.

The Board has considered the opinion of the private 
audiologist submitted by the Veteran, but affords it little 
probative weight with respect to the question of the 
aggravation of the hearing loss in service as the 
audiologist appears to be unaware that the Veteran entered 
service with hearing loss.  Rather, the audiologist opined 
that "it is quite likely" that the Veteran's noise exposure 
in service was the beginning of his hearing loss.  See 
Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that an 
opinion based upon an inaccurate factual premise has no 
probative value).  

To the extent that the Veteran asserts aggravation of his 
current bilateral hearing loss to noise exposure in service, 
a lay person is competent to offer an opinion on certain 
medical conditions.  Davidson v. Shinseki, 581 F.3d 1313, 
1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d 1372.  
However, in this case, the question of an association 
between noise exposure and aggravation of a bilateral 
hearing loss disability, is not an observation that can be 
made without having specialized education, training, or 
experience.  38 C.F.R. § 3.159.   Therefore, the Veteran's 
statements are not competent evidence favorable to the 
claim.

The Board puts significant weight in the contemporaneous, 
objective audiological examinations showing no aggravation 
of the Veteran's pre-existing hearing loss.  The opinion of 
the VA examiner that the Veteran's hearing loss was stable 
throughout his service also supports these audiograms and 
gives evidence against the Veteran's claim.  Therefore, the 
Board finds a preponderance of the evidence is against 
finding the Veteran's hearing was aggravated during his 
first period of active service.

With regard to the Veteran's second period of active 
service, the Board finds that the presumption of soundness 
attaches despite the documentation of pre-existing hearing 
loss as there is no entrance examination and only conditions 
recorded on examination reports are considered "noted" at 
entry into service.  See 38 C.F.R. § 3.304(b).  Thus, the 
burden is on the VA to rebut the presumption of soundness by 
clear and unmistakable evidence that the Veteran's 
disability was both preexisting and not aggravated by 
service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 
2004).
  
The Board finds that the medical evidence of hearing loss in 
the form of seven audiological examinations from April 1985 
to June 1990 constitutes clear and unmistakable evidence 
that bilateral hearing loss existed prior to the Veteran's 
second term of active duty service.  38 C.F.R. § 3.385. The 
Board also finds that the record contains clear and 
unmistakable evidence that the Veteran's hearing loss was 
not aggravated during his second period of active service.

The results of the Veteran's June 1990 audiological 
examination and his August 1991 audiological examination 
show only a five decibel worsening in the Veteran's hearing 
at 500, 1000, and 3000 Hz in the right ear and 3000 Hz in 
the left ear.  A 10 decibel difference from 40 to 50 was 
noted at 4000 Hz in the left ear.  All other readings 
remained the same.

After reviewing the Veteran's STRs, the VA examiner opined 
that the Veteran's hearing loss was stable, bilaterally, 
throughout his period of service, and was stable in both 
ears on final examination in 1991.  The examiner further 
opined that there was "no significant change in hearing 
sensitivity in either ear over the course of military 
service."  Although the examiner's opinion refers to the 
Veteran's period of service as beginning in 1986 and going 
through 1991, his failure to opine specifically as to each 
active duty period separately does not change the substance 
of his opinion that there was no significant change in the 
Veteran's hearing throughout all of those years, including 
the Veteran's second period of active service.  Although not 
stated in the language of clear and unmistakable, such a 
finding is a legal determination.  The Board finds that this 
opinion coupled with the other facts of record demonstrate 
clear and unmistakable evidence that the hearing loss was 
not aggravated by service. 

For the reasons discussed above, the Board gives little 
probative weight to either the opinion of the private 
audiologist or the Veteran as it relates to whether the 
Veteran's hearing was aggravated in service.

Considering the competent, probative evidence of record, 
particularly the audiological examinations and the opinion 
of the VA examiner, the Board finds that the evidence is 
clear and unmistakable that the Veteran's bilateral hearing 
loss was not aggravated by his service.

As the preponderance of the evidence is against the claim 
for service connection for bilateral hearing loss, the 
benefit of the doubt doctrine does not apply, and the claim 
must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert, 1 Vet. App. 49.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for dermatitis is denied.

Service connection for foot fungus/tinea pedis is denied.


REMAND

Remand is required regarding the claims for service 
connection for recurrent upper respiratory infections, 
insomnia, and fatigue to obtain adequate opinions.  Where VA 
provides the veteran with an examination in a service 
connection claim, the examination must be adequate.  Barr v. 
Nicholson, 21 Vet. App. 303, 311 (2007).  Generally, a 
medical opinion should address the appropriate theories of 
entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 
(2007).  Here, the Veteran has alleged entitlement based on 
direct service connection and on service connection for an 
undiagnosed illness.  38 C.F.R. §§ 3.310, 3.317 (2012).  
Although December 2009 VA examinations and opinions were 
obtained, no opinions were provided regarding direct service 
connection.  Accordingly, addendum opinions should be 
obtained regarding these claimed disorders.  

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical 
Center and obtain and associate with the 
paper or virtual claims file all 
outstanding records of treatment.  If any 
requested records are not available, or 
the search for any such records otherwise 
yields negative results, that fact must 
clearly be documented in the claims file.  
Efforts to obtain these records must 
continue until it is determined that they 
do not exist or that further attempts to 
obtain them would be futile.  The non-
existence or unavailability of such 
records must be verified and this should 
be documented for the record.  Notice must 
be provided to the Veteran and his or her 
representative.  

2. After any additional records are 
associated with the claims file, obtain 
addendum opinions from appropriate VA 
examiners.  The entire claims file (i.e., 
both the paper claims file and any 
electronic medical records) should be made 
available to and be reviewed by the 
examiner, and it should be confirmed that 
such records were available for review.  
If the examiner does not have access to 
electronic medical records, any such 
relevant treatment records must be printed 
and associated with the paper claims file 
so they can be available to the examiner 
for review.  The rationale for all 
opinions expressed must be provided.  If 
an opinion cannot be provided without 
resort to speculation, it must be noted in 
the opinion report, and a rationale 
provided for that conclusion.  The 
examiner(s) must provide the following 
opinions:

a) In light of prior examination findings 
and the service and post-service evidence 
of record whether it is at least as likely 
as not (50 percent or greater probability) 
that the Veteran's recurrent respiratory 
infections are caused or aggravated by 
military service, to include his Gulf War 
service and the respiratory complaints 
noted in the Veteran's STRs.   The 
examiner must also specifically address 
the STRs dated in July 1986, December 
1990, April 1991; the December 2009 and 
April 2010 VA examination and opinion; and 
the Veteran's lay statements. 

b) In light of prior examination findings 
and the service and post-service evidence 
of record whether it is at least as likely 
as not (50 percent or greater probability) 
that the Veteran's insomnia and fatigue 
was caused or aggravated by military 
service, to include his Gulf War service.  
The examiner must specifically address the 
lay statements of the Veteran from the 
2009 VA Examination, and the December 2009 
and April 2010 VA examination and opinion.

3. Review the examination reports to 
ensure that they are in complete 
compliance with the directives of this 
remand.  If the reports are deficient in 
any manner, the AMC must implement 
corrective procedures.  Stegall v. West, 
11 Vet. App. 268, 271 (1998).  

4. After completing the above action, and 
any other development as may be indicated 
by any response received as a consequence 
of the actions taken in the paragraphs 
above, the claims must be readjudicated.  
If the claims remain denied, a 
supplemental statement of the case must be 
provided to the Veteran and his 
representative.  After the Veteran and his 
representative have had an adequate 
opportunity to respond, the appeal must be 
returned to the Board for appellate 
review.

The Veteran 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).




______________________________________________
K. MILLIKAN 
Acting Veterans Law Judge, Board of Veterans' Appeals