Citation Nr: 1754046	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-32 193	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to an initial rating higher than 10 percent for dermatitis.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and spouse.


ATTORNEY FOR THE BOARD

J. Smith-Jennings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1972 to December 1979.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction was subsequently transferred to the RO in Oakland, California.

The issue of entitlement to an increased disability rating for dermatitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Competent and credible evidence indicates the Veteran's tinnitus was incurred in service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he currently has tinnitus as a result of noise exposure during service.  Specifically, the Veteran asserts that as a result of his military occupational specialty (MOS) as I-Seaman, he was exposed to loud ship engines and big guns without proper hearing protection.  Following review of the evidence of record, the Board finds that service connection for tinnitus is warranted.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 

Service connection may also be granted through the application of statutory presumptions for chronic conditions.  See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017).  "Other organic diseases of the nervous system," which may include tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies.  38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38.  The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted.

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence.  VA must also consider all favorable lay evidence of record.  See 38 U.S.C. § 5107 (b) (2012); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge).

At the outset, the Board finds that the Veteran sustained in-service acoustic trauma, based on his consistent statements regarding in-service noise exposure related to his MOS.  The Board also finds that the Veteran has a current disability, as he is competent to testify to observable symptoms, such as ringing in his ears, and has done so credibly in this instance, including during a September 2011 VA audiological examination and during his September 2017 Board hearing.  See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Thus, the remaining question is whether the Veteran's current tinnitus is related to his in-service acoustic trauma.

When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).  If it does, such testimony is sufficient to establish service connection.  Id.   

The Board finds that the Veteran's September 2017 Board hearing testimony is sufficient to establish service connection for tinnitus in this instance.  Specifically, the Veteran testified that he initially experienced ringing or buzzing in his ears during service while on the U.S.S. Dixie.  The Veteran also explained that the symptoms have persisted since service.  Furthermore, although a VA examiner indicated during an October 2009 VA examination that the Veteran initially experienced ringing in his ears in 2003, the Veteran clarified during the September 2017 Board hearing that the ringing in his ear became worse in 2003, but he did in fact first experience ringing in his ear during his active service.

In short, in light of the positive and negative evidence of record, to specifically include the Veteran's competent and credible report during his Board hearing of first experiencing tinnitus during service, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus was incurred in service. Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).


ORDER

Service connection for tinnitus is granted.


REMAND

Although the Board regrets the delay, additional development is necessary prior to adjudication of the Veteran's claim of entitlement to an increased disability rating for dermatitis.

The Veteran asserts that his currently assigned 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7806 does not accurately reflect the severity of his service-connected dermatitis.  Specifically, the Veteran asserts that he is entitled to a higher rating because he has pustules covering 40 to 50 percent of his body surface area.

Under Diagnostic Code 7806, a 30 percent rating is warranted where the area of involvement is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; with a need for systemic therapy such as with corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating-the highest available under this particular Diagnostic Code-is warranted where there is involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas, or; with the need for constant or near-constant systemic therapy such as with corticosteroids or other immunosuppressive drugs in the past 12-month period.  See 38 C.F.R. § 4.118, Diagnostic Code 7806.  

Here, the evidence of record includes VA medical records dated in February 2010 which document that the Veteran had pustules covering 40 to 50 percent of his body surface area.  However, there is no indication as to whether the pustules are associated with, or manifestations of the Veteran's service-connected dermatitis.  Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding etiology. 

Additionally, in exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) if the first two steps show that the rating schedule is inadequate then the final step requires the disability to be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 

At the September 2017 Board hearing, the Veteran testified that his service-connected dermatitis affects his work and social life.  Regarding work, the Veteran stated that he worked on commission and the inability to shake hands impacted his job.  Regarding his social life, the Veteran stated that since he has stopped working, his only social life is with his wife.  The Veteran further testified that he constantly hides his hands and he is unable to do household chores such as yard work and dish washing because of his condition.  

As such problems are not considered in the schedular criteria of DC 7806 and because they would cause interference with employment, the Board finds that the first two steps of Thun have been met.  Therefore, via remand, a referral to the Director of Compensation Service is warranted under 38 C.F.R. § 3.321 (b)(1).

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records.  The Board is particularly interested in the Veteran's comprehensive VA records, including those from the Eureka VA clinic.

2. Return the file to the June 2016 VA examiner for an addendum opinion.  If that examiner is unavailable, the opinion should be provided by another examiner.  If an examination is deemed necessary to answer the question presented, one should be scheduled.  The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following:

   (a) Is it at least as likely as not (50 percent probability or more) that the pustules covering 40 to 50 percent of the Veteran's body noted in the February 2010 VA medical records, are related to the Veteran's service-connected dermatitis?

All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record.  If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge.

3. Pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1), refer to the Director of Compensation Service the matter of the Veteran's entitlement to an extraschedular rating for service-connected dermatitis.

4. Readjudicate the claim on appeal, to include whether an extraschedular rating is warranted.  If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).



______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs