Citation Nr: 1805743	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-25 244A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to a compensable rating for service-connected pseudofolliculitis barbae.

2.  Entitlement to service connection for a skin disability of the chest and back, claimed as folliculitis, to include as secondary to herbicide agent exposure.

3.  Entitlement to service connection for hypertension, to include as secondary to a psychiatric disability.

4.  Entitlement to service connection for diabetes mellitus II. 

5.  Entitlement to service connection for bilateral hearing loss.

6.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

T. Joseph, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1969 to March 1971.  During his period of service, the Veteran earned the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and Bronze Star Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, related symptoms, and any other information of record.  Clemons v. Shinseki, 23 Vet. App 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  Therefore, the issue of service connection for rash on chest and back has been recharacterized as service connection for a skin disability of the chest and back.  

The issues of entitlement to service connection for hypertension, to include as secondary to a psychiatric disability, and entitlement to service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran had active military service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents, including Agent Orange.

2.  Folliculitis is not a disease for which presumptive service connection is warranted based on in-service exposure to herbicides.

3.  Resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether the Veteran's skin disability of the chest and back had its onset during, or is otherwise causally related to, the Veteran's active service.

4.  The evidence is at least in equipoise as to whether the Veteran's tinnitus is the result of noise exposure during military service.  

5.  At the time of the Veteran's August 2017 hearing, prior to the promulgation of a decision by the Board, the Board received notification from the Veteran that a withdrawal of his appeal with respect to the issues of entitlement to a compensable rating for service-connected pseudofolliculitis barbae is requested.

6.  At the time of the Veteran's August 2017 hearing, prior to the promulgation of a decision by the Board, the Board received notification from the Veteran that a withdrawal of his appeal with respect to the issues of entitlement to service connection for diabetes mellitus II is requested.


CONCLUSIONS OF LAW

1.  The criteria for service connection are met for a skin disability of the chest and back.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).

2.  The criteria for service connection are met for tinnitus.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for withdrawal of the appeal by the Veteran have been met with respect to the issues of entitlement to a compensable rating for service-connected pseudofolliculitis barbae.  38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for withdrawal of the appeal by the Veteran have been met with respect to the issues of entitlement to service connection for diabetes mellitus II.  38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

A.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Service connection for certain chronic diseases may be established on a presumptive basis by showing that such a 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, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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 Veteran 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).

Additionally, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Skin Disability

With regard to a present disability, a review of the Veteran's medical records reflects a diagnosis of folliculitis during an April 2009 VA examination.  Thus, the current-disability criterion for service connection is met.  See Shedden, supra.

The Veteran's DD-214 reflects in-country service in the Republic of Vietnam during the Vietnam era.  Therefore, exposure to herbicide agents is conceded.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307.

However, the Board observes that folliculitis is not listed as a disease warranting presumptive service connection based on in-service herbicide exposure.  See 38 C.F.R. § 3.309(e).  As the Veteran's folliculitis is not included on the list of diseases for which presumptive service connection may be awarded based on herbicide exposure, entitlement to service connection for folliculitis on a presumptive basis, as due to in-service exposure to herbicide agents, is not warranted.  

Notwithstanding the foregoing presumptive provisions, a Veteran is not precluded from establishing service connection with proof of direct causation.  Stefl v. Nicolson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

A review of the Veteran's service treatment records does not reveal any complaints or diagnosis of folliculitis during his military service.  However, in August 2017, the Veteran testified at a videoconference hearing that he experienced irritated skin while in Vietnam, which continued upon his discharge from service.  The Veteran is competent to provide a statement regarding experiencing irritated skin, as a rash is capable of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  Thus, resolving all doubt in favor of the Veteran, the Board finds that he has provided credible evidence identifying that he suffered a skin disability of the chest and back in service.  As there is no basis to doubt his credibility, the second element of service-connection is met.  See Shedden, supra.

As to the third element of service connection, medical evidence must establish a nexus between the current disorder and the in-service disease or injury.  

In April 2009, the Veteran appeared for a VA skin diseases examination.  The examiner observed multiple circular to ovoid lesions on the Veteran's chest and back.  The lesions were slightly raised and tender to the touch with erythematous bases and involved approximately 8 percent to 10 percent of the Veteran's body surface area.  The examiner noted that the Veteran's folliculitis "started well after he left the service." 

The Veteran's physician, Dr. B. Y., provided an opinion regarding his skin disability of the chest and back in June 2011.  Dr. B. Y. stated that the Veteran had been treated in the VA's dermatology department for widespread folliculitis.  He noted that the Veteran had been exposed to large amounts of Agent Orange in service, which was a carcinogen and dermatologic irritant known to cause skin disorders such as folliculitis.  He further noted that the Veteran required multiple topical ointments and oral antibiotics and would require lifelong therapy.  

Based on the evidence of record, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's skin disability of the chest and back is related to his military service.  38 C.F.R. §§ 3.303, 3.310 (2017).  As such, the benefit of the doubt will be conferred in the Veteran's favor and his claim for service connection for a skin disability of the chest and back is granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


Tinnitus

The Board similarly finds that service connection is warranted for tinnitus.

With regard to a present disability, a review of the medical evidence reflects a diagnosis of tinnitus during a March 2009 VA audio examination.  Thus, the current-disability criterion for service connection is met.  See Shedden, supra.

Next, the Board must consider whether the Veteran sustained a disease or injury in service.  The Veteran provided competent and credible testimony that he was exposed to noise from explosions.  The Veteran's DD-214 supports this lay testimony, insomuch as it reflects that his military occupational specialty (MOS) was Infantryman during service.  The Board finds exposure to hazardous noise during service is consistent with the circumstances of the Veteran's service.  See 38 U.S.C. § 1154(a).  As such, the Board will afford the Veteran the full benefit-of-the-doubt and concede in-service noise exposure.  The second element of service-connection is met.  See Shedden, supra.

The remaining question is whether there is a medical nexus between the Veteran's in-service noise exposure and his current tinnitus.  

As noted above, the Veteran was examined to determine the etiology of his tinnitus in March 2009.  The examiner noted the Veteran's reports of in-service noise exposure and complaints of recurrent tinnitus.  The examiner concluded that it was less likely than not that the Veteran's tinnitus was related to military noise exposure and at least as likely as not due to occupational noise exposure.  

Having considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for tinnitus.

For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Veteran testified during his August 2017 hearing that he first experienced ringing in his ears in service and this ringing has continued since service.  The Veteran is competent to describe what he experienced in service.  38 C.F.R. § 3.159(a)(2).  The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In making this determination, the Veteran has confirmed in-service noise exposure, and his description of in-service noise exposure is consistent with the circumstances of his service.  
  
The Board acknowledges that the March 2009 VA examiner provided a negative medical opinion, indicating that the onset of the Veteran's tinnitus did not occur for many years following military service.  However, in light of the credible hearing testimony, the evidence for and against the claim is at least in equipoise as to whether the Veteran's current tinnitus is related to service.  After resolving all reasonable doubt in his favor, service connection for tinnitus is warranted.  See 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  

B.  Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Such withdrawal may be made by the Veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing.  38 C.F.R. § 20.204(a).

The Veteran perfected an appeal in the matters of entitlement to a compensable rating for service-connected pseudofolliculitis barbae and entitlement to service connection for diabetes mellitus II.  At his August 2017 Board hearing, the Veteran withdrew these claims on the record.  Because the Veteran explicitly withdrew the claims of entitlement to a compensable rating for service-connected pseudofolliculitis barbae and entitlement to service connection for diabetes mellitus II, there remain no allegations of errors of fact or law for appellate consideration with regard to these claims.  Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed.


ORDER

Entitlement to service connection for a skin disability of the chest and back is granted.  

Entitlement to service connection for tinnitus is granted.

The appeal as to the claim of entitlement to a compensable rating for service-connected pseudofolliculitis barbae is dismissed.

The appeal as to the claim of entitlement to service connection for diabetes mellitus II is dismissed.


REMAND

Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to a psychiatric disability, and entitlement to service connection for bilateral hearing loss.  

Hypertension

The Veteran contends that his hypertension had either its onset in service or is the result of his service-connected psychiatric disability.  

Although the Veteran was afforded a VA examination in August 2008 to determine the nature and etiology of his hypertension, the examiner did not provide a nexus opinion as to whether it was related to service.  Further, the examiner failed to provide an opinion on whether the Veteran's hypertension was secondary to his service-connected psychiatric disability.  Thus, the Board finds that a VA examination and medical opinion are needed.  In light of these deficiencies, the August 2008 VA examiner's opinion is not sufficient to render a decision on the issue of service connection for hypertension, to include as secondary to a service-connected disability.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Bilateral Hearing Loss

The Veteran contends that his hearing loss is related to in-service noise exposure.

There are specific requirements regarding what constitutes a hearing loss disability under VA law.  The threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws 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, 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.

The Veteran's service treatment records include no complaint or finding with respect to the claimed bilateral hearing loss disability.  On VA examination in March 2009, the Veteran reported that he was exposed to combat noise from bombs and machine guns.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
15
15
LEFT
5
10
20
15
10

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear.  The examiner noted that hearing was within normal limits.  

However, since that time, during his August 2017 videoconference hearing, the Veteran testified that his hearing loss had worsened since the previous examination.  Given the number of years since the previous examination, and the Veteran's indication of worsening hearing that may meet the criteria for hearing loss disability, the Board believes that the Veteran should be afforded another examination to determine the nature and etiology of the claimed bilateral hearing loss disability.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination to evaluate the claim for service connection for hypertension, to include as secondary to a service-connected psychiatric disability.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, private medical records, and the Veteran's own assertions.

The Veteran's claims folder and this remand must be made available to the examiner for review in conjunction with the examination.  Consideration of such should be reflected in the complete examination report.

The examiner should provide an opinion on the following:

(a)  Whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's current hypertension had its onset in service or within one year of service discharge or is otherwise shown to be etiologically related to his active service.  

(b)  Whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's current hypertension was caused or aggravated (permanently increased in severity beyond the natural progression of the disorder) by his service-connected psychiatric disability.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

2.  The Veteran should be afforded a VA examination to evaluate the claim for bilateral hearing loss.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner should clearly identify whether the Veteran has a hearing loss disability.  

Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current hearing loss disability was incurred in service or are otherwise medically related to service, to include noise exposure therein.  The examiner should take as fact the Veteran's exposure to hazardous noise in service.

The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account.  

It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

3.  Then, and after conducting any additional development deemed necessary, the AOJ should readjudicate the Veteran's claims for service connection for hypertension, to include as secondary to a service-connected psychiatric disability, and service connection for bilateral hearing loss.  If the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review.

The Veteran 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. §§ 5109B, 7112 (2012).



______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs