Citation Nr: 1415246 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 10-25 514 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome. 2. Entitlement to service connection for a skin disorder of the left side of the face and scalp, including as due to herbicide exposure. 3. Entitlement to service connection for a disability of the right thumb and wrist. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for amblyopia. 7. Entitlement to service connection for bilateral deformed toes. 8. Entitlement to service connection for a spleen rupture, status post splenectomy, including as secondary to a service-connected skin lesion of the foot. 9. Entitlement to an increased rating for a service-connected skin lesion of the plantar aspect of the left foot, currently rated as 10 percent disabling. 10. Entitlement to an earlier effective date prior to January 12, 2007 for the award of an increased 10 percent rating for a service-connected skin lesion of the plantar aspect of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the RO in Chicago, Illinois that denied entitlement to service connection for amblyopia, left carpal tunnel syndrome, a skin disorder of the left side of the face and scalp, posttraumatic stress disorder (PTSD), a disability of the right thumb and wrist, tinnitus, bilateral hearing loss, bilateral deforming toe growth, and a spleen disorder, and denied an increase in a 10 percent rating for a service-connected skin lesion of the plantar aspect of the left foot. A personal hearing was held in July 2013 at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. At this hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for amblyopia. There are other issues that are not before the Board. In a July 2010 rating decision, the RO granted service connection and a 70 percent rating for PTSD, effective January 12, 2007. In a May 2011 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU), effective May 3, 2010. In a June 2012 rating decision, the RO granted service connection for erectile dysfunction and entitlement to special monthly compensation (SMC) based on loss of use of a creative organ, both effective July 25, 2011. In a June 2013 rating decision, the RO granted service connection and a 100 percent rating for prostate cancer, and entitlement to SMC based on housebound criteria. Since the Veteran did not appeal the ratings or effective dates assigned in these decisions, these claims are not in dispute. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection). The issues of entitlement to service connection for a left ring finger disability, and entitlement to payment or reimbursement of unauthorized medical expenses incurred at Silver Cross Hospital from January 21 to 26, 2005 have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to an earlier effective date prior to January 12, 2007 for the award of an increased 10 percent rating for a service-connected skin lesion of the plantar aspect of the left foot, entitlement to an increased rating for a skin lesion of the plantar aspect of the left foot, entitlement to service connection for bilateral hearing loss, left carpal tunnel syndrome, a skin disorder of the left side of the face and scalp, a disability of the right thumb and wrist, bilateral hearing loss, bilateral deformed toes, and a spleen disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On July 25, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal for service connection for amblyopia is requested. 2. The evidence confirms that the Veteran had service in the Republic of Vietnam during the Vietnam era and was exposed to acoustic trauma. 3. There is an approximate balance of evidence for and against the claim as to whether the Veteran's current tinnitus began during his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for amblyopia by the appellant (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. Resolving all reasonable doubt in his favor, the Veteran's current tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissal 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 may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, through his authorized representative, has withdrawn his appeal for service connection for amblyopia, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of service connection for amblyopia, and it is dismissed. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, in light of the entirely favorable disposition, discussion of these duties to notify and assist the Veteran with the claim for service connection for tinnitus is unnecessary because he is receiving the requested benefits. Service Connection for Tinnitus The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends he has tinnitus from exposure to loud noises from cannons and explosions during combat service in Vietnam. His service personnel records reflect that he was a heavy vehicle driver and served in Vietnam from August 1967 to August 1968. After a review of all of the evidence of record, including the Veteran's service personnel records, and his statements and testimony, the Board finds that his military service is consistent with combat noise exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA medical records reflect that the Veteran has been diagnosed with tinnitus. Hence, the determinative question is whether this disorder is related to service. In cases, as here, where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so are the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). To establish service connection, however, there must be evidence of a nexus between the current disability and the combat injury. Id.; see also Shedden, supra; Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009) (holding that 38 U.S.C.A. § 1154(b) could be used only to show that a Veteran incurred or aggravated a disease during service). The Veteran has asserted that his tinnitus began in service. He is competent to say he began having ringing in his ears (tinnitus) while in service since this is within the realm of lay experience. 38 C.F.R. § 3.159(a)(2). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see, too, Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be demonstrated by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Evidence weighing against the claims includes the fact that tinnitus was not diagnosed on separation from service in 1968, and the fact that the Veteran did not complain of these symptoms upon discharge or for years later. Moreover, he has made some conflicting statements as to the date of onset of these symptoms. Although the October 2007 VA examiner opined that it was less likely than not that the current tinnitus is related to service, this opinion was based partly on the Veteran's prior report, in a January 2005 VA outpatient treatment record, that he had tinnitus for six months. However, the Veteran informed the October 2007 VA examiner that his tinnitus had been present for a long time, and he could not recall when it began. An April 2009 VA audiology consult reflects that the Veteran reported that he has always had tinnitus, but he noticed it more often since he retired. At his July 2013 hearing, the Veteran testified that his tinnitus began during service in Vietnam, after multiple explosions and weapons being fired. Based on a review of all of the relevant evidence of record, the Board finds that the Veteran's history, asserting tinnitus dating back to his service, to be accurate, facially plausible, and consistent with the overall record. And when, as here, lay evidence is both competent and credible, it is probative. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). For these reasons and bases, the Board finds that the medical and lay evidence concerning the determinative issue of whether the Veteran's tinnitus is related to noise exposure coincident with his military service is at least in relative equipoise, i.e., about evenly balanced for and against his claim. Consequently, resolving all reasonable doubt in his favor concerning the origin of his tinnitus, the Board finds that service connection is warranted for this disorder. Gilbert, supra. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; this need only be an as likely as not proposition, which in this instance it is. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The appeal for service connection for amblyopia is dismissed. Service connection for tinnitus is granted. REMAND In a February 2008 rating decision, the RO, in pertinent part, granted an increased 10 percent rating for the service-connected skin lesion of the left foot, effective January 12, 2007. A timely notice of disagreement was received from the Veteran in March 2008, in which he contended that an earlier effective date in 1966 should be assigned for the award of the increased 10 percent rating. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2013); Grantham, supra. This claim is being remanded for issuance of a statement of the case and to give the Veteran the opportunity to complete an appeal as to the issue of entitlement to an earlier effective date prior to January 12, 2007 for the award of an increased 10 percent rating for the service-connected skin lesion of the plantar aspect of the left foot. Manlincon v. West, 12 Vet. App. 238 (1999). During the pendency of this appeal, the RO has been adjudicating other claims and conducting additional development, including obtaining VA medical opinions, medical records, and voluminous records from the Social Security Administration (SSA). This additional evidence has been associated with the Veteran's paper claims file and with his Virtual VA electronic claims file. Some of this evidence is relevant to the issues on appeal. However, this evidence was associated with the file after the April 2010 statement of the case, and has not yet been reviewed by the AOJ in the context of the instant appeal, with issuance of a supplemental statement of the case. Such must be done prior to appellate review in order to provide due process to the Veteran. See 38 C.F.R. §§ 19.31, 19.37(a) (2013). With regard to the claim for an increased rating for a service-connected skin lesion of the plantar aspect of the left foot, given the length of time since the last VA examination in April 2010, the Board finds that another VA examination is needed to reassess the severity of this service-connected disability. See 38 C.F.R. §§ 3.327(a), 4.2; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Veteran contends that he has deformed (crossed or squashed) toes of both feet that were caused by not being provided with arch supports during service. He testified that he wore arch supports all the time prior to service. See hearing transcript, page 23. The Veteran's service treatment records (STRs) show that, on entrance examination in August 1966, the examiner noted the Veteran had 3rd degree pes planus, bilaterally, and mild clawing. As pes planus and clawing were noted during his entrance examination, the presumption of soundness is rebutted as to these disabilities. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, only a claim for service-connected aggravation of that disorder. In that case, however, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Recent medical evidence reflects that the Veteran has multiple foot disabilities in addition to the service-connected lesion of the plantar surface of the left foot. For example, a October 1995 VA examination noted hallux valgus deformity of the left great toe. VA examinations performed by the same examiner in October 2007 and April 2010 indicated that he also had a Morton's foot (relatively long 2nd metatarsal). An April 2009 VA podiatry note reflects that he had adducted metatarsal heads bilaterally and lateral deviation of digits 1-5. The April 2010 VA examiner did not examine both feet, and did not provide a medical opinion as to the etiology of any current bilateral toe disabilities. The Board finds that another VA medical examination of both feet is needed to obtain a medical opinion as to whether any current bilateral toe deformity was incurred in or aggravated in service. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Although a VA audiological examination was conducted in October 2007, the Board finds that the VA examination report is inadequate as to the issue of hearing loss, and the claim must be remanded for another VA medical opinion with an adequate rationale. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA audiology examiner's October 2007 medical opinion is based on an inadequate rationale as the examiner based her negative medical nexus opinion solely on the fact that the Veteran's hearing was normal on audiological testing during his discharge examination, which is contrary to the Court's holding in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The record indicates that the Veteran receives ongoing VA treatment for multiple medical problems. It thus appears that additional relevant VA medical records may exist. At his July 2013 Board hearing, the Veteran testified that he receives regular treatment at a VA facility for his service-connected skin lesion of the left foot. Ongoing relevant medical records should be obtained with regard to the claimed disabilities. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case to the Veteran, addressing the issue of entitlement to an earlier effective date prior to January 12, 2007 for the award of an increased 10 percent rating for the service-connected skin lesion of the plantar aspect of the left foot. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b) (2013). Then, only if an appeal is timely perfected, should this issue be returned to the Board for further appellate consideration, if otherwise in order. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have evaluated or treated him for the service-connected left foot skin lesion since April 2010, or for any of the other claimed conditions since separation from service. After obtaining any necessary authorization, obtain all identified and relevant records that are not duplicates of those already in the claims file. In particular, the RO should attempt to obtain private medical records of treatment for a skin disorder from Dr. P., as identified in the March 2008 notice of disagreement. 3. Then, schedule a VA compensation examination of the feet. The claims file must be provided to and reviewed by the examiner. All necessary tests should be conducted. (a) The examiner should be asked to determine the current level of severity of the service-connected skin lesion of the plantar aspect of the left foot. (b) The examiner should be asked to provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that any current bilateral toe disabilities were incurred in or aggravated by service. In this regard, the Board notes that the Veteran had preexisting 3rd degree pes planus, bilaterally, and mild clawing that was noted on service entrance examination in August 1966. The examination report must include discussion of the rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 4. Schedule a VA compensation examination to obtain another medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current bilateral hearing loss is related to his military service from 1966 to 1968 - and, in particular, to his reported noise exposure during combat service in Vietnam. The claims file must be provided to and reviewed by the examiner. The examiner should obtain a history from the Veteran as to his noise exposure both during and after service. The examination report must include discussion of the rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. The examiner may consider the absence of any objective indication of hearing loss, such as on an audiogram, at any earlier date as one of the reasons for disassociating any current hearing loss from the Veteran's military service, just not as the sole reason for this disassociation. 5. Then, readjudicate the claims on appeal, with consideration of all of the evidence received since the April 2010 statement of the case. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give him an opportunity to respond, before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs