Citation Nr: 1752282 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-27 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and A.H. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966, to include service in the Republic of Vietnam. This matter comes on appeal before the Board of Veterans' Appeals (Board) from January 2012 and January 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2015 Board hearing. The hearing transcript is of record. The Board remanded the appeal to obtain updated VA treatment records and VA examinations. This was accomplished, and the Board finds that it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was exposed to hazardous noise in service. 2. Currently diagnosed bilateral hearing loss is related to noise exposure in service. 3. The Veteran had active service in the Republic of Vietnam and is, therefore, presumed to have been exposed to an herbicide agent during active service. 4. Currently diagnosed skin disorders are not etiologically related to active service or to exposure to an herbicide agent in service. 5. The Veteran has currently diagnosed arthritis in the bilateral knees. 6. Symptoms of arthritis in the knees were not both chronic in service and continuous after service separation and arthritis did not manifest within one year of service separation. 7. Arthritis in the bilateral knees is not related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for a skin disorder, claimed as a skin rash, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for arthritis in the right knee have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for arthritis in the left knee have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). The Board finds that the Veteran was provided adequate preadjudicatory notice addressing his service connection claims. VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the record includes service treatment records, lay statements and hearing testimony, and VA treatment records. The agency of original jurisdiction substantially complied with February 2016 Board remand directives in obtaining outstanding VA medical records, VA examinations, and medical opinions. VA examinations and medical opinions addressing the claimed skin disorder and bilateral knee disability are adequate and include adequate rationale for the opinions rendered based on the evidence of record with consideration of lay evidence provided. Moreover, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, sensorineural hearing loss and arthritis are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply to those claims. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss or arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Bilateral Hearing Loss Service connection may 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 Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. The Veteran contends that bilateral hearing loss is related to weapons fire and combat noise in service and contends that hearing loss has been present since service. The Veteran has currently diagnosed bilateral hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. On the VA audiological evaluation May 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 65 75 95 85 LEFT 50 40 45 55 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 percent in the left ear. Accordingly, the Board finds that the Veteran has met the threshold criteria for establishing a current hearing loss "disability" in both ears for VA purposes in accordance with 38 C.F.R. § 3.385. The Board finds that the Veteran experienced acoustic trauma in service. The Veteran's DD Form 214 reflects an MOS of light weapons infantryman. He received the Vietnam Service Medal and Combat Infantry Badge among other awards and decorations. The Veteran reported that his duties involved firing a 155 Howitzer on a daily basis, and indicated that he was exposed to mortar blasts which were close enough that you could feel it when they hit. He also reported firing rifles and machine guns while serving in a combat zone. The Board finds that the Veteran is competent to describe noise exposure in service, and his report of combat noise exposure and other hazardous noise exposure is credible and consistent with his duty MOS in service. Service treatment records show that the Veteran complained of poor hearing clarity out of the right ear in March 1963. The ears were irrigated and were stated to be clear. No follow-up treatment was identified and there were no associated audiometric hearing examinations. The Veteran's in-service audiograms include audiometric results reported in standards set forth by the American Standards Association (ASA). Where applicable, ASA standards have been reported on the left in each column and are not in parentheses. In order to facilitate data comparison for VA purposes, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards has been converted to the International Standards Organization (ISO)-American National Standards Institute (ANSI) standard and are represented by the figures in parentheses. On the authorized enlistment audiological evaluation in February 1963, which the Board finds was reported under ASA standards, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (5) 5 (15) 10 (20) NR 15 (20) LEFT 10 (5) 10 (20) 5 (15) NR 10 (15) On an audiological evaluation in February 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) NR 5 (10) LEFT 0 (15) 0 (10) 0 (10) NR 5 (10) Service treatment records do not identify a hearing loss disability in service. The Veteran, however, complained of right ear hearing loss symptoms in service and testified during his November 2015 hearing that he experienced ringing in the ears concurrent with firing weapons in service, and he provided lay statements indicating that hearing loss symptoms had been present since service. The Board finds that the Veteran's statements are credible. Moreover, the Veteran's daughter testified that, while growing up in the mid to late 1970s, she thought the Veteran had bad hearing noting that she had to talk loudly. She described noticing progressive hearing loss symptoms in the Veteran over time. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that that he experienced chronic symptoms of hearing loss in service and continuous symptoms of hearing loss after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303 (b) have been met. While a May 2016 VA examiner opined that hearing loss was less likely than not related to military noise exposure, the examiner's reasoning was based entirely on a finding of normal hearing at separation with no significant threshold shifts having occurred during service. However, a diagnosis of hearing loss at service separation or even an increase in hearing threshold levels is not required, and competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385,) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley, 5 Vet. App. 155. Additionally, while the VA examiner relied on the February 1966 separation audiogram in determining that hearing was normal at separation and that there was no threshold shift in service, hearing threshold levels were recorded at "0 HERTZ" in all hearing threshold levels on that audiogram, indicating an overall decrease in hearing threshold levels in service. The Board finds that this brings the validity of the February 1966 test results in to question and this was not addressed by the VA examiner. Accordingly, the Board finds that the VA opinion is inadequate as it does not consider the relevance of the Veteran's report of hearing loss symptoms in service and post service, and was based only on the absence of hearing loss at service separation. As the Board finds that the weight of the evidence demonstrates that the currently diagnosed bilateral hearing loss is related to noise exposure in service by a finding of continuity of symptomatology, the criteria for a grant of presumptive service connection for hearing loss are met under 38 C.F.R. § 3.303 (b). Therefore, a medical nexus opinion regarding the theory of direct service connection under 38 C.F.R. § 3.303 (d) is not necessary. For these reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). Skin Disorder A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e) (2017). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id at Note 3. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with 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). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a) (6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The Veteran contends that in several lay statements that he has a skin rash related to herbicide exposure in service. During a November 2015 Board hearing, the Veteran reported that he had itching and rashes in service which he, alternately, related to crossing bodies of water with prolonged exposure to wet conditions while serving in Vietnam. He indicated that he had current skin rashes that come and go, which were the same as the rashes he had in service. Service treatment records show that the Veteran was treated for tinea pedis, a fungal infection of the feet, on two occasions in June 1964. No further treatment or complaints related to a skin disorder were noted in service. The Veteran has currently diagnosed skin disorders, to include folliculitis of the upper back, dermatitis of the posterior knee and feet, and onychomycosis of the bilateral feet. VA treatment records also show that the Veteran had rashes on the upper thigh/groin and the back of the left leg in 2015, which were not present during the most recent VA examination. The May 2016 VA examiner noted the history of rashes, but indicated that the Veteran no longer had a rash to areas other than on the back and dark toenails during the examination. A history of tinea pedis in service was noted by January 2013 and May 2016 VA examiners, however, the Board finds that a current diagnosis of tinea pedis is not shown. When there is a history of remission and recurrence of a condition, the duty to assist may encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). However, in Voerth v. West, the Court found Ardison inapplicable where the Veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days. Voerth v. West, 13 Vet. App. 117, 122-23 (1999). While the Veteran has reported recurrence of a rash since service, he does not does not have a current diagnosis of tinea pedis shown in VA treatment records or examinations. Instead, a current rash to the bilateral feet was diagnosed as dermatitis in January 2013. While he reported during the May 2016 examination that his rash comes and goes, the last outbreak identified occurred two years prior. For these reasons, the Board finds that VA examinations of record adequately address the Veteran's current diagnoses, to include flare-ups of dermatitis of the feet, and an additional examination is not necessary to address the condition during a flare-up since a two year remission of the condition was noted at the time of the May 2016 VA examination. The Veteran's DD Form 2014 shows that he had active service in the Republic of Vietnam. Accordingly, he is presumed to have been exposed to an herbicide agent during service. See 38 C.F.R. § 3.307(a)(6)(iii). However, as the Veteran's diagnosed skin disorders, folliculitis, dermatitis, and onychomycosis, are not included in the indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. See 38 C.F.R. § 3.309(e). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The weight of the evidence shows that the Veteran's currently diagnosed skin disorders are not etiologically related to active service or to exposure to an herbicide agent in service. A January 2013 VA examiner identified a diagnosis of dermatitis in the bilateral feet and onychomycosis. The Veteran described a long history of peeling and cracked skin on the bilateral plantar feet of at least 30 years. He had onychomycosis for many years as well but could not recall how long it had been present. The examiner opined based on examination and a review of the record that the claimed condition was less likely than not incurred or caused by service, reasoning that the Veteran's present conditions were different than his in-service tinea pedis, and had no pathophysiological association with tinea pedis. A May 2016 VA examiner also opined that the currently diagnosed skin disorders were less likely than not incurred in or caused by service, or herbicide exposure in service. The examiner reasoned that service treatment records did not reflect treatment for any of the currently diagnosed skin conditions during service. The examiner also reasoned that folliculitis was due to inflammation or clogged hair follicles, a history of a hyper-pigmented plaque on the left posterior thigh was due to the Veteran's skin type, and onychomycosis was due to fungal infection. The examiner stated that none of the conditions were due to a specific exposure to an herbicide agent, or Agent Orange. In this case, VA examiners do not relate a currently diagnosed skin disorder to service. The evidence of record does not otherwise relate the currently diagnosed skin disorders to service. While the Veteran has testified that his current rashes are of the same type and location as rashes in service, contrary to his report, VA examinations and treatment records identify rashes in various locations distinct from the rashes on the feet and the back of the knee identified in service, and medical opinions of record fail to relate current dermatitis of the feet to tinea pedis in service. Given the number of different skin disorders the Veteran has been diagnosed with and his failure to differentiate between the types of skin rashes identified in lay statements, the Board finds that as a lay person, he is not competent to provide an opinion regarding whether his current rashes are of the same type he was treated for and diagnosed with in service, and the Board finds that his lay assertions are less probative than the medical opinion evidence on that issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Because the preponderance of the evidence is against the appeal for service connection for a skin disorder, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Right and Left Knee Disabilities The Veteran contends that he has a bilateral knee disability related to jumping out of planes while training as a paratrooper in service. He testified in November 2015 that he initially trained as a paratrooper and was required to jump out of planes at least once every three months, but noted jumping up to three times in one month. He indicated that the landings were jarring but did not report any injury. The Board finds that the Veteran has currently diagnosed arthritis in the bilateral knees. The Board finds that symptoms of arthritis in the knees were not both chronic in service and continuous after service separation. The Board finds that the Veteran is credible in identifying impact to the knees sustained during jumps in service. However, in hearing testimony, the Veteran did not identify any injury to the knees or symptoms related to knee pain in service. He reported that he did not seek treatment for the knees in service. While service treatment records identify other orthopedic complaints related to the back and shoulder in service, the Veteran did not seek treatment or identify any symptoms related to the knees in service. Thus, the Veteran did not have chronic knee pain symptoms in service. Similarly, testimony from the Veteran and his daughter do not tend to identify a chronicity of knee symptoms post-service. The Veteran testified that his knees did not start bothering him until a good while after he got home but did not identify a time frame for the onset of his symptoms. His daughter reported that the Veteran always shook or rubbed his knees, and noted that he had knee pain symptoms and knee complaints as she got older. The Board finds that the testimony provided by the Veteran and his daughter is credible, but finds that the evidence and testimony does not establish the presence both chronic knee pain symptoms in service and continuous knee pain symptoms since service separation. Arthritis did not manifest within one year of service separation. VA treatment records indicate that arthritis was first diagnosed decades after service separation. VA treatment records identify a diagnosis of arthritis in the right knee since approximately 2006. Left knee arthritis was diagnosed by x-ray in 2014. Finally, the weight of the evidence does not establish a nexus between currently diagnosed arthritis in the bilateral knees and service. A May 2016 VA examiner opined that the claimed knee disability was less likely than not incurred or caused by service. The examiner reasoned that service treatment records did not indicate that the Veteran was seen or treated for complaints or injury to the left or right knee during service or within one year after service. Thus, it was less likely as not that the current knee condition was incurred in, caused by, had its clinical onset during service, or was otherwise related to an event or incident in service. The Board finds that the opinion is probative as it is adequately based on the absence of knee symptoms or complaints in service, and considered the Veteran's contention that knee problems developed in service due to jumping while parachuting, as noted in the examination report. The evidence of record does not otherwise relate current diagnoses of arthritis in the knees to service. While the Veteran contends that arthritis is related to service, the Board finds, given the absence of injury or symptoms in service and the absence of pathology shown in the knees for decades after service, the Veteran is not competent to provide an opinion regarding the nexus between currently diagnosed arthritis in the knees and service. Thus, his lay assertions are less probative than the medical opinion evidence on that issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Because the preponderance of the evidence is against the appeal for service connection for right and left knee disabilities, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for a skin disorder is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs