Citation Nr: 1333371 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-16 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for skin spots. 4. Entitlement to service connection for tinea pedis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to February 1985; from September 1990 to July 1991, including service in the Southwest Asia Theater of Operations (Saudi Arabia) in support of Operation Desert Shield/Desert Storm from October 1990 to June 1991; and from August 2004 to November 2005, with service in the Southwest Asia Theater of Operations (Iraq) in support of Operation Iraqi Freedom from November 2004 to October 2005. He also had periods of active duty for training from February 1984 until February 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2011 and March 2013 the Board remanded the issues on appeal for further development. No further action to ensure compliance with the Board's remand directives is needed. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issues of service connection for hearing loss, a skin condition, and sore/athletes feet were last denied on the merits in January 1997. As additional and relevant service department records (including treatment records) have been received since the January 1997 rating decision, new and material evidence is not needed to reconsider these claims on the merits. 38 C.F.R. § 3.156(c). The Board further notes that in a Supplemental Statement of the Case issued by the Appeals Management Center (AMC) in July 2013 the issue of service connection for shortness of breath was listed; however, that issue, which was denied by the Board in a March 2013 decision, is not on appeal. 38 C.F.R. § 20.1100. FINDINGS OF FACT 1. A hearing disability was not present during the Veteran's active service in 1984-85, or 1990-91, and existed prior to his period of active service in 2004-05. 2. A hearing disability did not undergo an increase in severity during any period of active duty for training, inactive duty training or during the Veteran's 2004-05 period of active service. 3. The Veteran has reported an inconsistent history with respect to his tinnitus complaints. 4. VA examination links the Veteran's tinnitus with his hearing loss, which is not a service connected disability. 5. The Veteran's skin spots have been attributed to known clinical entities, were first medically observed in 1994, and are not linked to service by probative evidence. 6. A bilateral foot fungus was first manifested during service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred, may not be presumed to have been incurred, and was not aggravated, by active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Tinnitus was not incurred during service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. A disability manifested by skin spots was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2012). 4. The criteria for a grant of service connection for bilateral foot fungus are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent March 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records have been obtained. In addition, he has been provided with multiple VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability resulting from a disease or injury incurred or aggravated, in line of duty, during a period of active duty for training; or for injury incurred or aggravated, in line of duty, during a period of inactive duty for training; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. §§ 3.6(a), 3.7(m). In addition to the foregoing, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307(a), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. VA will also pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including signs or symptoms involving the skin, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. Discussion & Analysis In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). A. Hearing loss Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran seeks service connection for hearing loss on the grounds that his hearing loss worsened during his 2004-2005 tour of duty in Iraq. Review of the record reveals that his hearing thresholds were within normal limits for VA compensation purposes during his 1984-85 and 1990-91 active duty service. However, a periodic National Guard examination in April 1992 found left ear decibel threshold of 40 at 4000 Hertz; and on VA audiology examination in November 1994 the left ear threshold at 4000 Hertz was 45. Later evidence confirms bilateral hearing loss prior to entering active service in 2004. The record does not show a hearing disability to a compensable degree within one year of the Veteran's termination of active service in 1991, and the Veteran does not allege (and the record does not show) an increase in severity of any hearing loss due to disease or injury during any period of active duty for training or inactive duty training after 1991 and prior to 2004. With respect to the 2004-2005 period of active service, the Veteran contends that his hearing loss was aggravated during his 2004-2005 tour of duty in Iraq. The evidence, however, does not support this contention. Rather, the evidence simply continues to show the Veteran was known to have bilateral hearing loss when on this period of active duty. There is otherwise no evidence of any permanent increase in hearing thresholds during the 2005-2005 period of service. To the extent that he, as a layperson, asserts that his hearing worsened during that service, the Board observes that this can only be known by conducting an audiologic evaluation that measures the puretone thresholds in decibels at specified frequencies. Thus, it is a complex medical question that is not susceptible to a lay observation. The Veteran likewise is not shown to be qualified through specialized education, training, or experience to offer such a conclusion that may be considered probative. Accordingly, the Veteran's contention that his hearing loss was aggravated during his 2004-2005 active duty deployment is accorded no probative weight. Under the foregoing circumstances, the greater weight of the evidence is against the claim and it is denied. B. Tinnitus As regards the claim for service connection for tinnitus, during an October 2006 audiology consult the Veteran stated that his tinnitus began midway during his 2004-2005 tour in Iraq, and, indeed, a post-deployment record dated in November 2005 documents the Veteran as complaining of "ringing in ears since in Iraq: had H-3 waiver upon deployment." However, some 12 years earlier, the Veteran had admitted to occasional mild tinnitus in both ears since about 1990. See November 1994 VA audiology examination. Based on these conflicting statements the Board does not consider the Veteran's reports regarding his tinnitus history to be credible. Moreover, according to a May 2013 VA examiner, the Veteran's tinnitus is not related to military noise exposure, but instead to his hearing loss which, as the Board has just determined, is not service-connected. There is no competent evidence of record that refutes the VA examiner's opinion. Accordingly, the weight of the evidence is against the claim, and service connection for tinnitus is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. C. Skin spots Regarding skin spots, the record shows that these were first noted in 1994. Thereafter, the Veteran mentioned them to medical personnel during his last period of active service (2004-2005), but given their long standing presence, the notation of their existence during this period of service does not speak to their incurrence at that time, and they are not otherwise described as having increased in severity. Furthermore, the evidence reflects they have been associated with specific diagnoses, (i.e., nevi, warts, cysts, seborrheic keratoses, a dermatofibroma, skin tags, angiomas, eczema, and focal mucinosis). Therefore, an analysis under the provisions of 38 C.F.R. § 3.317, as an undiagnosed illness, is not triggered. Although the May 2013 VA examiner opined that the Veteran's spots were related to service, she based her opinion on the assumption that the spots first manifest during the Veteran's 2004-2005 deployment. As indicated above, this is not the case. As this opinion was clearly based on a faulty premise, it is of no probative weight. Accordingly, the weight of the evidence is against this claim, and service connection for skin spots is not warranted. Gilbert, 1 Vet. App. 49, 57-58; 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. D. Bilateral Foot Fungus Finally, and as regards the claim for service connection for a bilateral foot fungus disorder, an active duty medical record compiled during the Veteran's first deployment to the Persian Gulf in April 1991 notes that the Veteran had athletes foot that was resolved; however, on VA general medical examination in December 1994 the Veteran said that the skin of his feet felt raw and bruised at times. Additionally, active duty medical records compiled in September 2005 during his second deployment to the Persian Gulf relate complaints of foot fungus, and VA medical records dating from September 2006 advise that the Veteran was using over-the-counter antifungal foot powder for his foot complaints, diagnosed as tinea pedis and onychomycosis of the great toenails. Based on this evidence it appears that the Veteran's tinea pedis, which was first diagnosed during active duty service, was not so much resolved at the time of the April 1991 entry as it was asymptomatic. Moreover, according to a May 2013 VA examiner, based on service treatment records, the Veteran's tinea pedis of the feet was at least as likely as not incurred in or caused by service; and there is no medical opinion evidence of record to the contrary. Consequently, the Board finds that the preponderance of the evidence is in favor of the claim. Service connection for bilateral foot fungus is therefore warranted. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. Service connection for skin spots is denied. Service connection for bilateral foot fungus is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs