Citation Nr: 1800181 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 11-09 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a sinusitis disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a skin disorder claimed as rash REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD K. Underwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2004 with service in Iraq. He received the Army Commendation Medal with Combat Valor Device. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing held at the RO in May 2016. A transcript of the hearing is associated with the record. On remand, the Agency of Original Jurisdiction (AOJ) granted service connection for hypertension in a June 2017 rating decision; therefore this issue is no longer on appeal. As noted in the September 2016 Board remand, the Veteran's issue of service connection for dental disability claimed as chipping of two front teeth to this point been developed only as a claim for compensation. It remains unclear whether the Veteran is also claiming service connection for VA outpatient dental treatment. It was noted at the 2016 Board hearing that the Veteran is in receipt of dental care. 09/30/2016, Remand BVA at 22. It appears that the AOJ did not contact the Veteran for clarification as to whether he is seeking VA dental treatment. Thus, the Board again directs the AOJ to contact the Veteran for clarification and to refer this matter to the Veterans Health Administration (VHA) for appropriate action if necessary. See 76 Fed. Reg. 14600, 14601 (Mar. 17, 2011) ("When a veteran submits a claim for dental treatment directly to a VBA regional office, VBA will not provide a rating, but instead VBA will refer the claim to the VHA outpatient clinic, which is responsible for such claims."), finalized by 77 Fed. Reg. 4469 (Jan. 30, 2012) (adopting the proposed rule as a final rule without changes). FINDINGS OF FACT 1. The preponderance of the evidence fails to show that the Veteran has a current sinusitis disability. 2. The preponderance of the evidence fails to show that the Veteran has a current bilateral hearing loss disability for VA purposes. 3. The preponderance of the evidence fails to show that the Veteran has a current skin disability claimed as a rash. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In May 2009, the RO sent the Veteran a letter, providing notice that satisfied VA's requirements. Next, VA has a duty to assist the appellant in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All identified, available medical records have been obtained and considered. VA provided examinations for the sinusitis, rash, and hearing loss claims in May 2017. The AOJ substantially complied with the Board's remand directives by sending the December 2016 letter and obtaining the May 2017 examinations. As such, further remand is not required. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board will proceed to the merits. II. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection for certain chronic diseases such as sensorineural hearing loss, may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for the chronic diseases enumerated in 38 U.S.C. §§ 1101, 1112, may also be shown by lay evidence alone if the evidence shows a continuity of symptomatology for that chronic disease. See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013) (stating that a claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)"). 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 chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible, as his statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Chronic Sinusitis The Veteran asserts that he developed chronic sinusitis while in service. Service treatment records reflect that upon enlistment, the Veteran indicated that he had hay fever. 12/22/2004, STRs at 49. In July 2000, the Veteran was treated for an upper respiratory infection (URI), with symptoms including sore throat, cough, and drainage down his throat. In September 2000, the Veteran was treated for another URI with nasal congestion and a productive cough. Id. at 73-74. A July 2003 post-deployment examination confirmed exposure to various substances in Iraq, chronic cough and a runny nose, among other symptoms. Id. at 9. In May 2004, the Veteran received emergency care treatment for difficulty breathing. Id. at 54; 09/21/2007, Medical Treatment Record, Government Facility. Post service records show that in September 2007, he was diagnosed with acute sinusitis. 09/25/2009, Medical Treatment Record - Government Facility at 17. He was diagnosed with sinusitis in November 2008 (Id. at 41) and in April 2009. Id. at 141. In February 2009, the Veteran was treated for another URI and suspected meningitis with a final diagnosis of aspectic meningitis. Medical Treatment Record, 05/29/2009. Additional instances of sinusitis are indicated throughout various treatment records from 2011 to 2017 to include multiple diagnoses of acute sinusitis. See e.g., 05/15/2017, CAPRI at 14-16, 57, 372, 434, 774, 841, 892, 913, 933, 1151. During the May 2016 Board hearing, the Veteran stated that he began having issues with nose bleeds from the sinusitis when he returned from serving in Bosnia in 2001. He reported that since separation, he experienced sinusitis at least twice a year for at least fourteen days each. The Veteran and his wife noted that the VA provided him with nasal steroids, over-the-counter sinus medication, nasal spray, and inhalers. His wife also stated that the sinusitis caused the Veteran to have trouble with breathing and sleeping. 05/20/2016 Hearing Testimony at 12-16. In May 2017, the Veteran was afforded a VA examination regarding his sinusitis. This was an in-person examination and the examiner stated that she reviewed the Veteran's claims file. The Veteran reported being exposed to heavy dust and burn pits during deployment. The examiner took a medical history and reviewed (and included) treatment reports. He noted daily headaches, nasal congestion, nasal crusting, nose bleeds, and nasal polyps. The Veteran also stated that he required antibiotics at least twice a year for sinusitis. The examiner diagnosed the Veteran with rhinitis and opined that there was no confirmed diagnosis of chronic sinusitis. She noted that post service treatment records only indicated acute sinusitis without any evidence of a chronic sinusitis diagnosis. Further, x-ray results taken the day of the examination did not show evidence for chronic sinusitis. See 05/15/2017, CAPRI at 1303. Regarding the rhinitis diagnosis, the examiner noted that hay fever, which was indicated on the Veteran's entrance report of medical history, is a lay term for allergic rhinitis. She found that there was no evidence to show that the allergic rhinitis was aggravated beyond its natural progression by the Veteran's military service. Following a review of the evidence, the Board determines that the criteria for service connection for sinusitis have not been met. See 38 C.F.R. § 3.303. Indeed, the Board has carefully reviewed the relevant evidence of record but finds no competent evidence of a chronic sinusitis diagnosis in the Veteran's claims file. See Degmetich v. Brown, 104 F.3d 1327, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to...filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Board finds the preponderance of the evidence is against a finding of a current chronic sinusitis condition. In this regard, the May 2017 VA examiner's opinion was that there was not chronic sinusitis. The Board places much weight on this piece of evidence as the examiner took a releant medical history, to include noting in-service exposure to contamints and post-service treatment, and conducted a physical examination of the Veteran, to include diagnostic testing. Indeed, the 2017 VA examination report, along with the other evidence of record, such as the post-service treatment reports reflect acute impression of sinusitis. The Board notes that the Veteran has provided an opinion that he has sinusitis that is related to service. See, e.g., 04/30/2009 VA Form 21-4138. The Board finds that the Veteran is not competent to diagnostic a respiratory disorder, such as sinusitis, or provide an etiolgocial opinion without the proper training or specialized skills. Such has not been shown here. As such, the Board finds the preponderance of the evidence weighs against service connection for sinusitis. Bilateral Hearing Loss Following a review of the evidence, the Board determines that the criteria for service connection for hearing loss have not been met. See 38 C.F.R. § 3.303. The Board notes that in-service acoustic trauma has been established and that the Veteran is, in fact service connected for tinnitus as related to such trauma. See 01/19/2010 Rating decision. He has been denied service connection for hearing loss for his audiology tests results not meeting the VA criteria for hearing loss, to include results obtain at December 2009 and May 2017 VA examinations. 38 C.F.R. § 3.385. For VA benefits, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Moreover, clinical hearing loss is shown where the auditory thresholds exceed 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's December 1999 military enlistment audiogram revealed thresholds within normal limits, with right ear thresholds of 10 decibels at 500 Hertz, 0 at 1000, 0 at 2000, 0 at 3000, 0 at 4000, and 10 at 6000 and left ear thresholds of 10 decibels at 500 Hertz, 0 at 1000, 0 at 2000, 0 at 3000, 0 at 4000, and 10 at 6000. 12/22/2004, STR- Medical at 46. A December 2000 in-service audiogram found that the Veteran's thresholds continued within normal limits, with right ear thresholds of 5 decibels at 500 Hertz, 5 at 1000, 0 at 2000, 5 at 3000, -5 at 4000, and 5 at 6000 and left ear thresholds of 5 decibels at 500 Hertz, 5 at 1000, 0 at 2000, 0 at 3000, and 0 at 4000, and 15 at 6000. 12/22/2004, STR- Medical at 18. In the Remarks section, it was noted that the Veteran had routine noise exposure. May 2004 separation audiology results showed right ear thresholds of 15 decibels at 500 Hertz, 10 at 1000, 5 at 2000, 0 at 3000, 0 at 4000, and 0 at 6000 and left ear thresholds of 10 decibels at 500 Hertz, 5 at 1000, 5 at 2000, 0 at 3000, and -5 at 4000, and 25 at 6000. 12/22/2004, STR- Medical at 3. At a December 2009 post-service VA hearing evaluation, the Veteran's hearing was tested with right ear thresholds of 5 decibels at 500 Hertz, 5 at 1000, -5 at 2000, 5 at 3000, 0 at 4000, and 20 at 6000 and left ear thresholds of 5 decibels at 500 Hertz, 0 at 1000, -5 at 2000, 5 at 3000, 5 at 4000 and 10 at 6000. Speech recognition scored at 96 percent for the right ear and 100 percent for the left ear. 12/01/2009, VA Examination at 1. At the May 2016 Board hearing, the Veteran and his wife alleged that his hearing worsened since his last examination. 05/20/2016, Hearing Testimony at 16-19. As such, he was afforded a new VA examination in May 2017. During this examination, the Veteran measured normal hearing in both ears with right ear thresholds of 5 decibels at 500 Hertz, 10 at 1000, 0 at 2000, 15 at 3000, 5 at 4000, and 5 at 6000 and left ear thresholds of 0 decibels at 500 Hertz, 5 at 1000, -5 at 2000, 10 at 3000, 15 at 4000, and 5 at 6000. Maryland CNC speech recognition scores were 100 percent in the right ear and 96 percent in the left ear. The examiner also provided a negative opinion regarding a permanent threshold shift at 500Hz - 6000 Hz, noting that when comparing the Veteran's 1999 enlistment examination results with his May 2004 thresholds, there appeared to be a 15dB threshold shift at 6000 Hz in the left ear. However, when she reviewed the Veteran's 2009 and current audiology examination results, she found that there did not appear to be a left ear threshold shift. Therefore, a permanent threshold shift was not found. The examiner did not address etiology because she did not find a present hearing disability for VA purposes. 05/12/2017, VA Examination. Following a careful review of the evidence, the Board determines that the criteria for service connection for bilateral hearing loss have not been met. See 38 C.F.R. § 3.303. Although the Veteran is afforded the benefit of the doubt regarding noise exposure during active service, service connection cannot be established because he lacks a current disability for VA purposes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Degmetich v. Brown, 104 F.3d 1327, 1333 (Fed. Cir. 1997); see also, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As described above, the post-service hearing tests do not reveal hearing for VA purpose in either ear, to include recent testing in May 2017. The Board finds that based on the May 2017 VA examiner's opinion as well as the evidence of record, the preponderance of the evidence weighs against service connection for bilateral hearing loss. The first criteria of a service connection is not met and the claim is denied. Skin Disorder Claimed as Rash The Veteran's claims file shows evidence of various skin problems treated in- and post-service. This includes service treatment records showing that he was treated for (1) warts on both hands on an unknown date; (2) ringworm, also diagnosed as tinea corporis on the back of his neck, in July 2002; and (3) athletes foot in September 2000. 12/22/2004, STRs at 27, 66, 71. He also was noted to have reported a bump, blister or scab with crusting and itching after receiving a smallpox injection in February 2003. Id. at 4. His July 2003 post-deployment examination confirmed exposure to various substances in Iraq as well as the presence of skin diseases or rashes. Id. at 9-10. His post-service records are noted to include treatment for a rash on his chest in August 2008 that resolved in treatment the following month and a furuncle on his chest diagnosed in December 2008. 09/25/2009, Medical Treatment Records at 29, 33, 41, 42. During the Veteran's May 2016 testimony, the Veteran reported that his claimed skin rash occurred after he returned home from a deployment to Iraq. He noted that the rash consisted of bumps that were itchy. The Veteran stated that the rash lasted for approximately three years and then vanished. It returned for a month and had not yet returned. 05/20/2016, Hearing Testimony at 6-8. Given the evidence of skin problems in service and post service evidence of skin problems shown in the medical evidence and lay testimony, the September 2016 Board remand found that a VA examination was warranted to address the nature and etiology of any claimed skin disorder. The Veteran had a VA examination for his skin condition in May 2017. The examiner reviewed the Veteran's STRs and noted the Veteran's reports of in-service skin rashes and exposure to uranium rounds while deployed. The Veteran stated that the rash had resolved approximately two years ago. In the diagnosis section of the examination report, the examiner only noted "folliculitis of the scalp, resolved" with date of diagnosis in 2012. No treatment was noted for any skin disorder and the examiner stated that the Veteran does not have any specific skin conditions (from a list). As the examiner did not find any current skin disorders during the examination, an opinion regarding etiology was not provided. Upon careful review of the relevant evidence of record, the Board finds no competent evidence of a skin disorder or rash diagnosis since the claim was file or recently prior to the filing of such claim . See Degmetich v. Brown, 104 F.3d 1327, 1333 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the May 2017 VA examiner's opinion weighs heavily against the claim. In this regard, the places much weight on it as the examiner took a relevant medical history, to include noting in-service skin problems, and physically examined the Veteran. The Board notes that the Veteran has provided an opinion that he has skin problems and that they are related to service. See, e.g., 04/30/2009 VA Form 21-4138. While the Veteran is competent to report skin symptoms, such as redness and/or itching, the Veteran is not competent to provide a specific diagnosis. The Board finds that the Veteran's lay statements as to a current diagnosis and etiology are outweight by other competent evidence of record, to include the 2017 VA examination report and the relevant post-service treatment records. Indeed, the Veteran's 2016 testimony also weighs against a finding of a current skin disability during the period on appeal or recent to the filing of this claim in early 2009. As the preponderance of the evidence is against a finding of a current skin disorder, the first criteria of a service connection is not met and the claim is denied. ORDER Service connection for a sinusitis disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for a skin disorder claimed as a rash is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs