Citation Nr: 1339633 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-31 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a skin condition, including basal cell carcinoma, to include as secondary to herbicide exposure. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2008 and June 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran's left shoulder basal cell carcinoma did not initially manifest during or within one year of his active military service and is not related to any disease, injury, or event during his service, including herbicide exposure. 2. Any current tinnitus is not related to the Veteran's active duty. 3. No worse than a level I hearing impairment of either ear is shown throughout the entirety of the period from February 2009 to the present. CONCLUSIONS OF LAW 1. A left shoulder basal cell carcinoma was not incurred in or aggravated by the Veteran's active military service and may not be presumed to have been, including on account of exposure to herbicides in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via letters sent to the appellant in January 2008 and July 2009. The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Veteran was also afforded a VA audiology examination in March 2009. The VA examination is sufficient, as it considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to resolve the issue on appeal. The Board notes that the Veteran did not receive a VA examination in connection with his skin condition claim. The Board finds that VA does not have a duty to provide an examination in this case. While there is evidence that the Veteran currently has a basal cell carcinoma on his left shoulder, the evidence does not establish that he had a skin condition during his service, nor does he so claim. There is also no evidence indicating that any current skin disorder may be related to service. Thus, a VA examination is not required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claims for service connection at this time. II. Service Connection Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 11101. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962 and ending on May 7, 1975 (Vietnam era) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) . Pursuant to Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between Agent Orange exposure and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (CONTINUED ON NEXT PAGE) III. Basal Cell Carcinoma The Veteran's service personnel records confirm that he served in Vietnam during the Vietnam era. Therefore, VA presumes he was exposed to herbicides such as Agent Orange while there. Here, the record shows the Veteran was diagnosed with basal cell carcinoma, actinic keratosis and seborrheic keratosis in 2007. None of these skin disorders, including the basal cell carcinoma, are among the diseases presumptively recognized as associated with herbicide exposure under section 3.309(e). Accordingly, service connection on a presumptive basis under section 3.309(e) is not warranted. Although the Veteran is not entitled to presumptive service connection, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records are silent for any symptoms, diagnoses, or treatment for a skin disorder with the exception of treatment for warts on the Veteran's right hand and an anal rash. No skin abnormalities were reported by the Veteran or noted by military examiners in a May 1969 induction examination or a January 1973 discharge physical examination. Next, post-service evidence does not reflect symptomatology associated with skin disorders until many years following service. In this regard, the Board notes that the treatment records which have been associated with the claims folder do not demonstrate a diagnosis of basal cell carcinomas until 2007, almost 40 years after service. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. As noted, lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service is outweighed by other more objective evidence. The Veteran indicated on his January 2008 claim form that he has suffered from skin cancer since 1972. The Veteran has not made any other statements in support of this claim. However, service treatment records and the Veteran's separation examination did not mention any skin disorder aside from an anal rash in 1971 and a wart on the Veteran's right index finger in April 1972. The Board has also considered the Veteran's assertion of a nexus between his current skin disorder and his period of service, to include as a result of exposure to Agent Orange. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. In sum, the weight of the evidence weighs against a finding that any current skin disorder, to include basal cell carcinoma, developed in service or is related to Agent Orange exposure. Again, the Board is not disputing that the Veteran served in Vietnam, that he was exposed to herbicides or that he has been treated during his lifetime for basal cell carcinoma. However, as described above, neither the evidence of record, nor the operation of statutory presumptions links the Veteran's current skin condition to the Veteran's military service, to include his exposures therein. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. IV. Tinnitus A review of the Veteran's service treatment records reveals that there were no complaints or findings of tinnitus in service. At the time of the Veteran's January 1973 separation examination, normal findings were reported for the ears. There was no indication of ringing in the ears at that time, or of any other symptom which might be attributed to tinnitus. There were no complaints or findings of tinnitus or ringing in the ears immediately following service. The Veteran did not note any ear problems on his initial January 2008 application for compensation. At a March 2009 VA examination, the Veteran indicated that he did not experience ringing in his ears. In his July 2009 Notice of Disagreement, the Veteran reported that he told the VA examiner that he did have ringing in his ears constantly. After a review of the record the Board finds that the Veteran did not incur tinnitus in service, nor is any claimed tinnitus causally or etiologically related to service. Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran has not specifically related the onset of his tinnitus to his military service; rather, he stated that he currently has continuous ringing in his ears. Moreover, the Veteran submitted a private audiology report and opinion dated August 2009, which makes no mention of tinnitus. As to the Veteran's belief that he has tinnitus related to his period of active service, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran has not been shown to have the requisite training or expertise to render an opinion as to the etiology of any tinnitus and its relationship, if any, to his period of service. Moreover, there are many complex factors/contributors to tinnitus, such as heredity disorders, medications, or other factors which may cause tinnitus not necessarily related to acoustic trauma, which the Veteran also does not have the requisite training to address. The Veteran has been notified of the necessity to provide a medical nexus between any claimed tinnitus and service, but has not provided such a nexus. Moreover, there have been no post-service treatment records associated with the claims folder which demonstrate any relationship between the Veteran's claimed tinnitus and any period of active service. Although the Board has considered the Veteran's contention that he told the VA examiner that he suffered from constant tinnitus, the Board is placing greater emphasis upon the August 2009 audiological examination that makes no mention of any current tinnitus. Thus, the Board finds the private audiology exam be the most probative evidence of record. The preponderance of the evidence weighs against a finding that any claimed tinnitus is related to the Veteran's period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . V. Compensable Initial Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The June 2009 rating decision on appeal established service connection at a noncompensable (0 percent) level under DC 6100. The Veteran has appealed the initial rating assigned, contending that the 0 percent rating is inadequate for the level of impairment he experiences. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels in Table VI, designated from Roman numerals I to XI, according to degree of hearing impairment from normal acuity through profound deafness. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percent of speech discrimination and the puretone threshold average. When an audiologist certifies that use of the speech discrimination test is not appropriate, then Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used alone to determine the auditory acuity level. In exceptional cases, where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a) (2012). Similarly, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Once an acuity level is established for each ear, Table VII, "Percentage Evaluations for Hearing Impairment" is used to determine the appropriate disability evaluation. The appropriate evaluation is determined based on a combination of the levels of hearing impairment established for each ear. Here, the Veteran had audiological evaluations in March and August 2009. The March 2009 VA evaluation noted puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, of 50, 25, 40, and 35 in the right ear, and 30, 20, 40, and 45 in the left ear. The puretone threshold averages were 37.5 and 33.75 in the right and left ears, respectively. Speech discrimination scores were 90 percent and 96 percent in the right and left ears, respectively. The recorded scores correlate to auditory acuity level I for each ear under Table VI; a noncompensable rating is warranted. The August 2009 private evaluation noted puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, of 50, 30, 30, and 40 in the right ear, and 35, 30, 45, and 65 in the left ear. The puretone threshold averages were 37.5 and 43.75 in the right and left ears, respectively. Speech discrimination scores were 100 percent in both ears. The recorded scores correlate to auditory acuity level I for each ear under Table VI; a noncompensable rating is warranted. The medical evidence shows no basis for the assignment of a compensable schedular rating for the Veteran's bilateral hearing loss under DC 6100 at any point in time from February 2009, to the present. Fenderson, 12 Vet. App. at 126. There is otherwise no showing of any exceptional hearing impairment as set forth in 38 C.F.R. § 4.86. The Board has considered the Veteran's statements regarding his hearing impairment which are credible and probative, but, as noted above, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. 345. The audiological data presented do not permit the assignment of a compensable schedular at any point in time. In his February 2010 Form 9, the Veteran argued that the VA examiner was biased and that his service treatment records document hearing loss while in service. The Board notes that the Veteran has been granted service connection; however, the Veteran's level of hearing loss does not meet the criteria to be compensable. In addition, the Veteran's private audiology exam dated August 2009 yield the same noncompensable results as the March 2009 VA examination. Moreover, there is no indication that the March 2009 examiner is in any way biased in favor of the VA health system, or against the Veteran. Therefore, in the absence of any evidence that the March 2009 examiner was not independent, the Board finds that the March 2009 VA examination and the August 2009 private examination are both competent examinations. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned. The VA examiners specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, there is no evidence of unemployability due to the Veteran's service-connected bilateral hearing loss and further consideration of TDIU is not warranted. As a preponderance of the evidence is against the Veteran's claim, his appeal for a compensable initial rating for bilateral hearing loss must be denied without application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin condition, including basal cell carcinoma, to include as secondary to herbicide exposure is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a compensable initial rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs