Citation Nr: 1727240 Decision Date: 07/13/17 Archive Date: 07/25/17 DOCKET NO. 11-04 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a skin condition of the bilateral lower extremities, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. The issue of entitlement to service connection for bilateral hearing loss comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2005 rating decision, the RO continued the denial of entitlement to service connection for bilateral hearing loss. The Veteran filed a notice of disagreement in January 2006. Although the RO characterized this issue as new and material evidence in a February 2009 rating decision, it is noted that the Veteran timely filed a notice of disagreement and his claim remained pending. The issue of entitlement to service connection for a skin condition of the bilateral lower extremities, to include as secondary to herbicide exposure comes before the Board on appeal from a February 2009 rating decision. The Veteran was scheduled to testify at a May 2013 Travel Board hearing; however, the Veteran did not report for the hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2016). This matter was previously remanded in August 2014 and September 2016 for additional development, which has been completed. The issue of service connection for bilateral hearing loss was remanded along with the Veteran's skin condition claim. However, service connection for right ear hearing loss was granted by a January 2017 rating decision and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream element of disability rating). Thus, the issues on the title page have been amended accordingly. FINDINGS OF FACT 1. A left ear hearing loss disability was noted on entrance to service, and the most probative evidence is against a finding that the left ear hearing loss increased in severity during service. 2. The medical evidence of record does not show symptoms of a current skin disability of the lower extremities. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2016). 2. The criteria to establish service connection for a skin condition of the lower extremities have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by letters dated July 2005, December 2008, and August 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the Veteran's service treatment records and post service treatment records are of record, as are VA examination reports concerning the claim for hearing loss. The Board further notes that actions requested in the prior remand have been undertaken. In this regard, the Veteran's correct address was verified and in correspondence dated October 2016, he was asked to complete authorization forms to release pertinent medical records from private treatment providers he reported treated his skin condition. However, the Veteran did not respond. "The duty to assist" is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that an examination concerning his skin claim has not been provided. However, current treatment reports of record reveal no complaints or findings concerning a skin condition of the lower extremity, and the Veteran did not cooperate with the attempts to obtain private treatment records concerning his skin claim. Accordingly, in the absence of medical evidence showing a current skin disability of the lower extremities, a VA examination is not required. 38 C.F.R. § 3.159(c). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection 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 (West 2014); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. 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 appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); 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 the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Hearing Loss of the Left Ear The Veteran contends that his hearing loss is related to his military service. In addition to the general service connection provisions noted above, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability 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. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with left ear hearing loss pursuant to 38 C.F.R. § 3.385. Accordingly, the first criterion, a current disability, for establishing service connection has been met. Regarding the second criterion, in-service incurrence or aggravation, the Board must first determine whether left ear hearing loss existed prior to the Veteran's service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, 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 (West 2014). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the pre-existing condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the § 1111 presumption, the claim is one for service connection, not aggravation. Id. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board notes that, prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through December 31, 1970, the ASA standards have been converted to ISO-ANSI standards. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 The Veteran's service treatment records include a March 1966 enlistment audiogram, a March 1967 direct commission audiogram, and a July 1967 audiogram, at which times auditory thresholds were recorded. In this case, a left ear hearing loss disability was noted on audiometric testing on service entry. In this regard, the Veteran's March 1966 enlistment audiogram, when converted to ISO-ANSI standards, showed pure tone thresholds of 25, 25, 25, 40 and 25 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz (specified frequencies). Further, the examiner remarked that the Veteran had ear trouble since childhood, particularly otitis externa. As hearing loss consistent with 38 C.F.R. § 3.385 was shown in the left ear on audiometric testing at entry, the Veteran is not presumption of soundness does not apply as to his left ear hearing. Wagner, 370 F.3d at 1096; McKinney v. McDonald, 28 Vet. App. 15, 25 (2016). Accordingly, in order to warrant service connection for left ear hearing loss, it must be shown that the disorder was aggravated beyond normal progression by active service. The Board notes that the Veteran was treated for ear and hearing complaints and as mentioned above, underwent several audiograms in service. In this regard, the March 1967 audiogram, when converted revealed left ear pure tone thresholds of 20, 20, 20, and 20 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. On the medical history report at that time, the examiner noted that the Veteran had ear, nose and throat trouble since childhood. In July 1967 the Veteran complained of hearing loss that began after basic combat training and the rifle range. The examiner noted that the Veteran had multiple ear infections in childhood with the left ear slightly deaf thereafter. The examiner diagnosed conductive hearing loss of the left ear secondary to adhesive process middle ear. The examiner also diagnosed noise induced hearing loss and noted the Veteran should have no further exposure to noise or outdoor assignments until September 1967. A July 1967 audiometric examination, when converted showed pure tone thresholds of 50, 50, 65, and 70 decibels in the left ear at 500, 1000, 2000, and 4000 Hertz, respectively. The Veteran was subsequently placed on a physical profile in July 1967 that included no assignment involving habitual or frequent exposure to loud noises, requirement of well fitted ear plugs, and no exposure to inclement weather, field duties, or outdoor assignments. An April 1968 audiogram, marked as being recorded under ISO-ANSI standards revealed left ear pure tone thresholds of 30, 35, 40, and 65 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. In April 1968 the Veteran was again placed on a physical profile. The Veteran was noted as having left ear mixed hearing loss. The profile noted that the Veteran should not have duty requiring excellent hearing and no duty exposing ears to loud noise or blasts or concussion other than for required qualification firing, and then only with properly fitted ear protectors in place. The Veteran was instructed to keep his ears dry and it was recommended that the Veteran be stationed in temperate climate near a medical facility with ear, nose, and throat (ENT) service. A June 1968 ENT consultation noted that the Veteran had three previous procedures on his left ear for apparent congenital hearing loss. The examiner noted that the Veteran apparently suffered from further hearing loss at basic training and was apparently still having episodes of drainage. The examiner noted that the Veteran's left ear had a refracted tympanic membrane perforation posteriorly. The examiner concluded that there should be no change in the Veteran's profile and he should be stationed near an ENT doctor because he continued to have drainage. Although the Veteran had left ear hearing loss noted on his March 1966 enlistment examination, upon his November 1969 separation audiogram, the hearing loss was the same or better in the left ear than on enlistment. In this regard, the Veteran's November 1969 separation audiogram, marked as being recorded under ASA units, when converted, revealed left ear pure tone thresholds of 15, 10, 30, and 30 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. The examiner diagnosed high frequency hearing loss. On the Veteran's medical history report at that time, the Veteran reported ear, nose, and throat trouble, running ears, and hearing loss. The examiner noted that the Veteran had recurrent ear infections as a child with no recurrence in basic training. The examiner also noted that the Veteran had partial high frequency hearing loss in the left side since childhood. Post service VA treatment records are silent for any complaints, treatment or diagnosis of hearing loss until the 2000s. In September 2005, the Veteran underwent VA examination in connection with his claim. The examiner noted that the Veteran had mild to severe sensorineural hearing loss in the left ear at enlistment. The examiner also noted that bone conduction studies were not completed so the type of hearing loss could not be determined. The 2005 audiology examination revealed left ear pure tone thresholds of 25, 40, 55, 55, and 65 decibels at the specified frequencies. The examiner concluded that the Veteran's military noise exposure was not responsible for the Veteran's hearing loss and explained that the Veteran had hearing loss in both ears at his enlistment in 1967. In February 2009 the Veteran submitted a private audiogram by his private physician which reported left ear pure tone thresholds of 50, 55, 65, 80 and 100 decibels at the specified frequencies. The private physician reported speech recognition for the left ear at 96 percent. In July 2009 the Veteran submitted a private opinion from the same physician who concluded that "there is no way to absolutely know what has caused [the Veteran's] hearing loss, but that a portion of it could be attributable to noise exposure which he suffered while in service." The private physician also noted that the Veteran did have physical findings compatible with chronic middle ear problems. The physician further summarized that the Veteran has significant hearing loss, which is probably multifactorial; the exact cause of the hearing loss was not discernable, but a portion could be attributed to noise exposure. In November 2014, the Veteran underwent a VA audiology examination which revealed pure tone thresholds of 45, 45, 65, 75 and 90 decibels at the specified frequencies in the Veteran's left ear. The Veteran's speech discrimination score in his left ear was found to be 94 percent. The examiner diagnosed the Veteran with mixed hearing loss in the left ear and further found that the Veteran's left ear hearing underwent a significant threshold shift while in service. The examiner also stated that the Veteran's records did state that it was the medical opinion of the physicians in service that this particular Veteran not participate in situations with high [noise] intensities as well as outside posts due to his middle ear conditions. The examiner concluded that these situations may have exacerbated the sensorineural hearing loss. In regards to the left ear specifically, the examiner noted that hearing loss pre-existed service. However, he opined that the pre-existing left ear hearing loss was not aggravated beyond normal progression by military service because hearing loss was present in the left ear at 3000 Hertz per the March 1966 enlistment audiogram; while a significant threshold shift was seen, some of which was sensorineural; complete recovery, however, was seen at a later date. The examiner's opinion is consistent with the service treatment records, which actually show improvement in the left ear hearing loss between entrance and exit examination. As noted above, a temporary flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). As the November 2014 opinion was provided following examination of the Veteran and a thorough review of the claims file, supported by a detailed rationale, the Board finds this opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges the July 2009 private physician who concluded a portion of the Veteran's hearing loss could be attributable to noise exposure which he suffered while in service. However, that physician did not address the pre-existing nature of the Veteran's hearing loss, and his opinion that it "could be" attributed to noise exposure is speculative. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative). Accordingly, the Board affords the opinion little, if any, probative weight. To the extent the Veteran believes that his current left ear hearing loss arose in or worsened in service, as a lay person he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis, progression, and etiology of hearing loss are matters not capable of lay observation, and require medical testing and expertise to determine. Accordingly, his opinion as to the progress of his left ear hearing loss is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. In sum, the most probative evidence indicates the Veteran's left ear hearing loss disability was noted on entrance, and was not aggravated beyond normal progression during service. Accordingly, service connection for left ear hearing loss must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). B. Skin Condition of the Bilateral Lower Extremities The Veteran contends that he has a skin condition of his lower extremities that is due to military service, to include exposure to herbicides during his tour in the Republic of Vietnam. The Veteran's service records show that he had in-country Vietnam service. However, his service treatment records are absent any complaints, treatment, or diagnosis of a skin condition of the lower extremities. Post-service VA treatment records are also absent any complaints, treatment, or diagnosis of a skin condition. Moreover, a skin condition is not listed on the Problem List. In his January 2009 written statement, the Veteran stated that his private physician assessed a dermatological condition on his left leg and prescribed medication to be taken immediately; that numerous episodes over the past years have occurred involving skin problems; similar skin conditions were prevalent in Pleiku, in the battalion area where he was assigned; and that there was no doubt that the onslaught of these anomalies were due to the defoliant undertaken at that time (early 1968). However, as noted above, the Veteran did not respond to correspondence to obtain the private treatment records referenced. Wood, 1 Vet. App. at 193. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "[i]n the absence of proof of a present disability, there can be no valid claim"). In this case, there is no medical evidence of record showing that the Veteran has a current skin condition of the bilateral lower extremities, and the Veteran did not cooperate with attempts to obtain medical records that could confirm the presence of such disability. Accordingly, as the there is no competent evidence of a current disability, there is no basis upon which service connection can be awarded. Thus, the claim for service connection for a skin condition of the bilateral lower extremities is denied. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application and service connection must be denied. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for a skin condition of the bilateral lower extremities is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs