Citation Nr: 1800229 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-08 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection to acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and dysthymic disorder. 4. Entitlement to service connection for malignant skin neoplasm, to include as due to exposure to herbicide agents and/or excessive ultra violet (UV) exposure. 5. Entitlement to service connection for cirrhosis of the liver, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Noh, Associate Counsel INTRODUCTION The Veteran had active military service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Subsequently, the Veteran filed a claim for service connection of cirrhosis of the liver based on exposure to herbicide agents. An April 2014 rating decision denied the Veteran's cirrhosis of the liver claim. The Board has combined both claims and will address the issues herein. The Veteran was scheduled for a hearing in April 2016, but he did not appear for his hearing, and thus his request for a hearing is deemed withdrawn. The Board notes that the RO only adjudicated whether the Veteran is entitled to service connection for PTSD. In Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. The record shows the Veteran has been diagnosed with dysthymic disorder. As such, under Clemmons, the issue has been expanding to include all psychiatric disabilities however diagnosed. The issues of entitlement to service connection for malignant skin neoplasm, to include as due to exposure to herbicide agents and/or excessive UV exposure; bilateral hearing loss disability, and entitlement to service connection for cirrhosis of the liver, to include as due to exposure to herbicide agents are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's bilateral tinnitus did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The Veteran's acquired psychiatric disability, to include PTSD and dysthymic disorder, is shown to be causally or etiologically related to an in-service event, injury or disease as there is credible supporting evidence that the claimed in-service stressor occurred. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist With respect to the issue decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A. Bilateral Tinnitus The Veteran contends that he is entitled to service connection for bilateral tinnitus. The Veteran reported that he currently has tinnitus, which he is competent to diagnose. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, a current disability has been shown. Concerning the second element, the Veteran stated that he was exposed to loud noises in service as field wireman. These statements are competent, and there is no evidence that they are not credible. Therefore, the Board finds that the second element of service connection has been met. Turning to the third element, tinnitus has been held to be an organic disease of the nervous system, and is thus considered a chronic disease for VA purposes. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). As such, service connection based on continuity of symptomatology is applicable in this case. A review of the service treatment records show that the Veteran had normal ears and drums with no complaints, symptoms, signs, or diagnoses of tinnitus. In fact, the service records show the Veteran affirmatively denied any ear trouble while in service. The audiographs conducted at induction, separation, and throughout his service revealed normal findings with no references of ringing of the ears or other tinnitus-related symptoms. Post-service outpatient treatment records show that the Veteran did not complain of ringing in his ears. The treatment records are silent for any complaints, symptoms, or treatment of tinnitus. Significantly, at the August 2011 VA examination, the Veteran reported that his tinnitus manifested three to four years ago, or about forty years after service. The examiner opined that based on the Veteran's statement of an onset of 3 to 4 years prior and the records, the Veteran's tinnitus is less likely related to military noise exposure. The Board finds that the VA examiner's opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, personally examined the Veteran, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, it stands uncontradicted by any other opinion of record. As for presumptive service connection based on chronic disease and continuity of symptomatology, the Board finds the preponderance of the evidence does not support a finding that the Veteran's tinnitus, a chronic disease, manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the records, the Veteran admitted that his tinnitus manifested around 2004, about forty years after his service. As there is no evidence of manifestation within the first post-service year, service connection for tinnitus based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. In sum, although the Veteran has established a current disability and in-service incurrence of noise exposure, the preponderance of the evidence establishes that his bilateral tinnitus was not manifested during service or for many years thereafter; and is not otherwise related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. B. Psychiatric Disability After a review of the record, the Board finds that the Veteran has a current diagnosis of a psychiatric disorder, namely dysthymic disorder with PTSD features, that is related to his experiences while serving in Vietnam. At the outset, the Board notes the Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal. As such, service in Vietnam is conceded. In regards to the first element of direct service connection (a current disability), the medical evidence reflects a generalized diagnosis of dysthymic disorder with features of PTSD, and as such the Board finds that the first element has been met. Concerning the second element, the preponderance of the evidence supports a finding that there were in-service stressors. The service treatment records are silent for any complaints, symptoms, or diagnosis of any psychiatric condition during his service. In fact, the service treatment records show normal psychiatric condition throughout his service treatment records, including induction and separation examination. However, the Veteran reported that he spent nine months in Vietnam in combat situation. The Veteran stated that he was exposed to constant mortar and rocket attacks and even carried body bags when he was out on missions. The Veteran's military occupational specialty code shows that the Veteran was a field wireman in the 28th Field Artillery. As such, the Board finds that the reported stressors are consistent with the circumstances, conditions, and hardships of his service. Therefore, the Board accepts the Veteran's accounts of the stressors. The remaining question is whether his current diagnosis of dysthymic disorder with PTSD features is related to these stressors. In this regard, the Board finds that the evidence of record supports a finding that the Veteran's current diagnosis of psychiatric disability is related to his military service. For instance, in the August 2011 VA examination, the examiner opined that the Veteran's psychiatric disorder is at least as likely as not due to the Veteran's experience in Vietnam, which is related to fear of hostile military or terrorist activity. This was based on the Veteran's accounts of his experiences while serving in Vietnam which have been determined by the Board to have been consistent with his service. Similarly, a September 2011 medical opinion from his treating physician wherein the physician opined that it is at least as likely as not that the current diagnosed dysthymic disorder is due to experience in Vietnam that are related to fear of hostile military or terrorist activity. The Board affords great weight to the August 2011 VA examiner's opinion and the September 2011 medical opinion from his treating physician as their opinions were adequate. Both the examiner and the physician thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, their opinions are well supported by the records. Moreover, these opinions stand uncontradicted by any other competent evidence. Based on the treatment records, the Veteran's statements, and the medical opinions from the VA examiner and the Veteran's treating physician, the Board finds that it is at least as likely as not that the currently diagnosed psychiatric disability, to include dysthymic disorder with PTSD features, is due to experiences in Vietnam that are related to fear of hostile military or terrorist activity. ORDER Entitlement to service connection for bilateral tinnitus is denied. Entitlement to service connection for an acquired psychiatric disability, to include dysthymic disorder with PTSD features, is granted. REMAND The Board's review of the claim file reveals that further AOJ action on the issues of entitlement to service connection for malignant skin neoplasm, to include herbicide and UV exposure, residuals to a liver injury disability, all to include due to exposure to herbicide exposure, and bilateral hearing loss disability, is warranted. As noted above, the Veteran has service in Vietnam and as such, exposure to herbicides is conceded. In regards to the skin related disability, the Board notes that the treatment records show no in-service incurrence of an injury, event, or stressor. Specifically, the service treatment records show the Veteran with normal skin with no complaints, diagnoses, or treatment of skin-related disability. Even in the separation examination, the Veteran was noted to have normal skin and no skin-related disease. A review of the treatment records only shows a diagnosis based on the Veteran's history of malignant neoplasm of the skin in 2003 wherein the Veteran had a wide excision on the right side of his neck. Despite the fact that the records is devoid of any references linking his skin-related disability to his military service, the Veteran contends that his skin related disability is etiologically related to or caused by his exposure to herbicide exposure and/or excessive UV exposure. As such, the Board finds that a remand is necessary to obtain an examination based on a full reading of the medical record and consideration of the Veteran's statement and contentions. As for the Veteran's cirrhosis of the liver, the Board notes that the service treatment records show no in-service incurrence of an injury, event, or stressor. In fact, the records show the Veteran has no complaints, symptoms, diagnoses, or treatment of liver-related disease. The Veteran has alleged that his cirrhosis was manifested in-service or was causally or etiologically related to an in-service event, injury or disease, to include to exposure to herbicide agents. In order to support his contention, the Veteran submitted an online forum discussion of the effects of herbicide agents in Vietnam on Veteran's liver. The Board finds that a remand is necessary to obtain a medical opinion based on a full reading of the medical record and considerations of the Veteran's contentions and evidence of record. In regards to the hearing loss disability, the Veteran was afforded a VA examination in August 2011. At the time, the examiner opined that the hearing loss was less likely than not related to service. The reasoning was that the Veteran had normal hearing at induction and separation. This is not an adequate reasoning for an etiology opinion. As such, a new opinion is needed prior to deciding the case. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran is hereby notified that it is his responsibility to report for an examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's skin and liver disability. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claim file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's malignant skin neoplasm disorder had its onset in service or is otherwise related to service, to include exposure to herbicide agents and/ or excessive UV exposure as a radio man and field wireman. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's liver-related disability had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran's contentions regarding exposure to herbicide agents. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Forward the file to the examiner who conducted the August 2011 VA audiological examination and request that an addendum opinion be provided. The examiner should be informed that an etiology opinion which is based solely on the findings of normal hearing in service is inadequate. The examiner is asked to provide an opinion as to whether the Veteran's current hearing loss disability is related to the confirmed noise exposure in service. A full rationale for any opinion(s) rendered must be provided. It is stressed that the rationale cannot be solely based on a finding of normal hearing in service. If a new examination is deemed needed prior to providing the opinion, the same must be scheduled and conducted. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or 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 (2012). ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs