Citation Nr: 1400017	
Decision Date: 01/02/14    Archive Date: 01/16/14

DOCKET NO.  11-07 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating for eczema.  

2.  Entitlement to service connection for tinnitus.  

3.  Entitlement to service connection for a liver disorder, to include as due to herbicide (Agent Orange) exposure.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active service from February 1967 to March 1969 in the United States Navy.  He also served in the United States Navy Reserve from 1965 to 1966.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In August 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims folder.

A review of the Virtual VA paperless claims processing system and Veterans Benefits Management System (VBMS) reveals additional, pertinent VA treatment records dated from 2010 to 2013.  However, the RO has reviewed these records.  Thus, there is no prejudice for the Board to now consider these records.

The issue of entitlement to an increased rating for bilateral hearing loss has been raised by the record, but has not been properly adjudicated by the RO.  See e.g., February 2013 Veteran's statement.  Therefore, the Board does not have jurisdiction over the bilateral hearing loss issue, and it is referred to the RO for appropriate action. 

The issue of entitlement to service connection for a liver disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC


FINDINGS OF FACT

1.  At the August 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that they wanted to withdraw the appeal for the issue of entitlement to a compensable rating for eczema.    

2.  The Veteran has been shown to have current tinnitus that is related to his military service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran and his representative have been met for the issue of entitlement to a compensable rating for eczema.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013).  

2.  Resolving all reasonable doubt in his favor, the Veteran has tinnitus that was incurred in active military service during combat operations.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With regard to the issue of service connection for tinnitus, a review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in July 2006.  In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of this particular service connection issue.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

With regard to the issue of service connection for a liver disorder, the Board finds that further evidentiary development is needed and will be discussed herein below.  Therefore, an analysis regarding compliance with the VCAA for this issue is not required at this time.  


Dismissal of Service Connection for Increased Rating Issue

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal of an appeal may be made on the record at a hearing.  38 C.F.R. § 20.204(b)(1).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204(c).  

In the present case, at the August 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that they wanted to withdraw the appeal as to the issue of entitlement to a compensable rating for eczema.  See hearing testimony at pages 2-3.  Hence, with regard to the issue of entitlement to a compensable rating for eczema, there remain no allegations of errors of fact or law for appellate consideration for this particular issue.  Accordingly, the Board does not have jurisdiction to review that part of the appeal, and it is dismissed.


Law and Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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).  Service connection may also be granted 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). 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus.

The evidence shows that the Veteran has a current diagnosis of tinnitus, as demonstrated by the June 2007 VA audiology examination report.  Thus, the crux of this case is whether his tinnitus developed as the result of his military service.  

The Veteran's service treatment records dated from 1967 to 1969 do not document any complaints, treatment, or diagnosis of tinnitus.  Moreover, upon separation in March 1969, tinnitus was not noted, and a whispered voice test did not reveal hearing loss.

Nevertheless, the absence of medical evidence of in-service treatment or injury is not in and of itself fatal to a claim for service connection, but rather is just one factor for consideration.  In fact, the Court has held that even the absence of in-service documentation could not constitute negative evidence and that a VA examiner had to consider the Veteran's lay report regarding the occurrence of the injury.  Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011).   

The Veteran has contended that he developed tinnitus as the result of noise exposure during service.  Specifically, he has asserted that he was exposed to hazardous noise as the result of his military occupational specialty (MOS) as a boatswain's mate and as a law enforcement specialist (security guard) in the United States Navy from 1967 to 1969.  His DD Form 214 confirms that he did serve in this capacity.  He has also asserted that he suffered acoustic trauma from exposure to weapons fire and explosions from mortars and rockets while in combat situations in Vietnam.  The Veteran has further indicated that he first noticed "faint" tinnitus during service, but did not report the condition at that time.  He has stated that the tinnitus became more constant in nature and really began to bother him post-service in 2003 and 2004.  See August 2006 and March 2009 Veteran's statements; June 2007 VA audiology examination; August 2013 videoconference testimony.  

Notably, the Veteran did serve in a MOS in which he was exposed to noise exposure.  The Department of Defense's Duty MOS Noise Exposure Listing confirms that the Veteran's MOS as a boatswain's mate involved a "high" probability of noise exposure.  

In addition, the Veteran is competent to report in-service noise exposure and symptoms of tinnitus.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)).  In fact, the Court has specifically held that tinnitus is a type of disorder capable of lay observation and description.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he had noise exposure in service and developed tinnitus.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

Following service, with regard to a nexus, a June 2007 VA audiology examiner opined that the Veteran's current tinnitus is "less likely than not" due to noise exposure during military service.  The examiner reasoned that the Veteran did not report tinnitus until 32 years after his discharge from service.  However, this opinion is flawed in several respects.  First, the VA examiner erroneously cited medical treatise evidence from 1986 indicating that the whispered-voice test was accurate and had "strong sensitivity."  VA has already acknowledged that the whispered-voice test is not scientific or accurate.  Specifically, the Director of the VA Compensation and Pension Service observed in VBA Training Letter 10-02 that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure."  See VBA Training Letter 10-02 (March 2010).  Second, the VA examiner erroneously emphasized the late onset of a tinnitus as a factor of why it was not related to in-service noise exposure.  On this issue, the Director of the VA Compensation and Pension Service observed in VBA Training Letter 10-02 that the onset of tinnitus "may be gradual or sudden, and individuals are often unable to identify when tinnitus began."  It was also noted that "[t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurred" ... "Therefore, delayed-onset tinnitus must be considered."  

In contrast, an October 2008 private audiologist opined that a portion of the Veteran's hearing loss was due to acoustic trauma sustained in service.  In this regard, he noted that the Veteran was exposed to noise in service, which is typically damaging to the inner ear.  The RO has already granted service connection for bilateral hearing loss based on this private audiology opinion, despite the negative findings of the above June 2007 VA audiology examiner.  The Board does acknowledge that the October 2008 private audiologist did not provide any opinion as to the etiology of the Veteran's tinnitus.  In any event, it can be logically inferred that the private audiologist would have concluded that any current tinnitus would, like hearing loss, be related to noise exposure from the Veteran's military service or to the hearing loss itself.  The Board finds the same benefit of the doubt should be applied to the tinnitus issue as well, as tinnitus is often associated with hearing loss.  Moreover, the Veteran has credibly reported a lack of intercurrent, post-service noise exposure or acoustic trauma, as he has worked in an office setting for decades.  See August 2013 hearing testimony; June 2007 VA "audiology history form."  He has also testified that his tinnitus began in service.  

Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

The appeal for the issue of entitlement to a compensable rating for eczema is dismissed.

Subject to the provisions governing the award of monetary benefits, service connection for tinnitus is granted.     

REMAND

The Board finds that additional development is required for the issue of service connection for a liver disorder, to include as due to herbicide (Agent Orange) exposure.

First, the RO/AMC should secure a VA examination and medical opinion to determine whether the Veteran's history of an enlarged liver, which is not a listed presumptive disease for herbicide purposes, is otherwise directly related to presumed herbicide exposure during military service in Vietnam.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange).  

The Veteran has not reported in-service liver symptoms, and his service treatment records show normal laboratory findings with no liver abnormalities noted.  Post-service, the Veteran has reported private treatment for symptoms related to an enlarged liver since 1997.  These symptoms allegedly include abnormal laboratory results, vitamin B12 deficiency, canker sores, and tendonitis from the lack of B12.  He has asserted that his abnormal liver symptoms resulted from his presumed exposure to herbicides in Vietnam.  

A private September 2002 ultrasound of the abdomen assessed "early fatty infiltration" of the liver with a history of an increased liver function test.  Private laboratory results dated in July 2005 also recorded elevated ALT and alkaline phosphate levels with the Veteran denying a further hepatitis panel, as he stated it was just a "fatty liver."  A February 2011 VA pre-operative assessment further noted a diagnosis of an enlarged liver, but liver enzymes themselves were normal.  

Second, the Board notes that the claims file including Virtual VA and VBMS does not contain any VA treatment records dated since January 2013.  VA's duty to assist includes obtaining records of relevant VA medical treatment.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).   Therefore, on remand, the RO/AMC should attempt to secure any outstanding VA treatment records dated since January 2013.   

Accordingly, the liver disorder issue is REMANDED for the following action:

1.  The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any liver disorder.  After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 

The RO/AMC should obtain and associate with the claims file any outstanding VA medical records pertaining to a liver disorder that are dated from January 2013 to the present.

2.  After securing the above VA treatment records and any other additional evidence, the RO/AMC should afford the Veteran a VA examination to determine the nature and etiology of any current liver symptoms.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  The records reviewed should specifically include the private September 2002 ultrasound of the abdomen, the private laboratory results dated in July 2005, and the February 2011 VA pre-operative assessment.  

It should be noted that the Veteran is presumed to have been exposed to herbicide agents during his military service.

It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.


The examiner should identify all current liver disorders.  For each diagnosis identified, the examiner should opine as to whether the disorder began in service or is otherwise causally or etiologically related thereto, including herbicide exposure in service (regardless of the fact that liver disorders are not presumed to be associated with herbicide exposure).

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3.  The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  

4.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

5.  When the development requested has been completed, the issue remaining on appeal should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2013).




______________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs