Citation Nr: 18143414 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 14-28 308 DATE: October 19, 2018 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. Service connection for a skin rash is denied. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss did not have onset during his active service, was not caused by his active service and did not manifest within one year of separation from active service. 2. The Veteran’s current tinnitus did not have onset during his active service, was not caused by his active service and did not manifest within one year of separation from active service. 3. The Veteran’s current skin rash disability did not have onset during his active service and was not etiologically related to or caused by active service, to include herbicide (Agent Orange) exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). 3. The criteria for service connection for a skin rash have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to December 1969. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, navel, 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 service. 38 U.S.C. § 1116 (f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that his current bilateral hearing loss and tinnitus disabilities are due to noise exposure during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The question for the Board is whether the Veteran has a chronic disability that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. A July 2012 VA examination reflects that the Veteran has current diagnoses of bilateral sensorineural hearing loss. Speech discrimination scores were 92 percent in the right ear and 88 percent in the left ear. As such, the Veteran has a hearing disability for VA purposes. 38 C.F.R. § 3.385 (2017). On examination, he also reported tinnitus symptoms. The Board notes that although a diagnosis of tinnitus was not provided, the Veteran is competent to provide lay evidence of tinnitus as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, these diagnoses satisfy the first element of a service connection claim. The Board concludes that, while the Veteran has bilateral sensorineural hearing loss and tinnitus, which are chronic diseases, they were not chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The record does not include diagnoses of hearing loss or tinnitus during active service or within one year of the separation in December 1969. The first complaints of hearing loss symptoms are contained in November 2010 VA treatment records at which time the Veteran reported hearing loss and ringing symptoms. As such, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss and tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s DD-214 indicates that his military occupational specialty (MOS) was a rifleman. In his August 2014 VA Form 9, he reported exposure to gunfire, explosions and artillery. The Veteran is competent to report his in-service noise exposure and his reports are consistent with the circumstance of his service. 38 U.S.C. § 1154 (a) (2012). Therefore, in-service noise exposure is conceded. Service treatment records do not contain any complaints of or treatment for hearing loss or tinnitus symptoms. Although the Veteran asserts that he did not have a separation examination, the claims file contains a December 1969 separation examination. Clinical evaluation of the ears and a whisper test were normal. November 2010 VA treatment records document the Veteran’s report that he has not seen a physician in the past 40 years. A review of symptoms notes that he was positive for hearing loss and ringing. He was scheduled for an audiology consultation in January 2011. During this visit, he reported 4 years of noise exposure during service in the Republic of Vietnam and post-service occupational noise exposure while working in construction and painting industries. Tests showed bilateral sensorineural hearing loss and hearing aids were recommended. The Veteran was afforded a VA audiology examination in July 2010. A review of the claims file was noted. The audiologist opined that the Veteran’s hearing loss is less likely than not caused by or the result of an event in service. As rationale, the examiner referenced normal audiological tests at entrance and a normal whisper test at separation. After service, the Veteran’s hearing status is unknown as he did not seek treatment for a hearing condition until 2011, 42 years after separation from service. The Veteran himself reported an onset of hearing loss 20 to 30 years ago, and post-service noise exposure in the construction and paint industries for 40 years without hearing protection. Based on medical literature, the examiner concluded that there are other factors that affect hearing loss such as medical conditions, history of noise exposure and recreational activities after military service. As for tinnitus, the Veteran reported constant tinnitus since service attributed to military noise-exposure. The examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner attributed tinnitus to the Veteran’s hearing loss, because tinnitus is a known symptom of hearing loss. Although the Veteran contends that the VA audiological examination was inadequate and requested an ear, nose, and throat specialist examination; the Boards finds the examination and opinions adequate as the examination was conducted by a medical professional (audiologist) who reviewed the claims file, considered the Veteran’s history, and provided rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Based on the above, the preponderance of the evidence as to whether the Veteran’s current bilateral hearing loss and tinnitus are related to service, weighs against the claims. There are no contradictory medical opinions of record. Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking a current disability to service. To the extent the Veteran claims that he has had continuous hearing loss and tinnitus symptoms since service, he is competent to do so. However, his statements regarding the onset of symptoms must be weighed against other evidence and in the context of facts of this case. The first mention of symptoms is contained in November 2010 VA medical records, more than 40 years after separation from service. While the Veteran claims that he has had these conditions since service, he did not file an application for compensation until October 2010, more than 40 years after separation from service. Taking this into consideration as well as the other evidence already discussed, the Board concludes that the preponderance of evidence is against granting service connection for bilateral hearing loss and tinnitus and the appeal as to these claims must be denied. 3. Entitlement to service connection for a skin rash. The Veteran contends that he has a current skin rash disability due to herbicide (Agent Orange) exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current skin rash condition, the preponderance of the evidence weighs against finding that the Veteran’s skin rash began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Lay persons are competent to attest to factual matters of which they have first-hand knowledge (e.g., the presence of a skin rash). Jandreau, 492 F.3d at 1372. The Veteran’s DD 214 shows that he is a recipient of Vietnam Service and Campaign Medals, Combat Action Ribbon, and the Purple Heart Medal. Thus, he served in the Republic of Vietnam during the appropriate timeframe and is presumed to have been exposed to Agent Orange during service. However, he does not have a diagnosis of chloracne or other acneform disease consistent with chloracne, a disease subject to presumptive service connection based on herbicide exposure. The lack of unavailability of a presumption does not mean that the disability cannot be granted on a direct causation basis, to include if it were shown that the Veteran has a skin rash due to exposure to Agent Orange. See Palovick v. Shinseki, 23 Vet. App. 48 (2009) and Stefl v. Nicholson, 21 Vet. App. 120 (2007). The claims file does not contain any treatment for a skin rash. On December 1969 separation, a clinical evaluation of the skin was normal. Post-service in November 2010 the Veteran denied changing skin lesions. A skin signs test showed color within normal limits. December 2010 VA treatment records contain an examination noting skin that was pink-tan, warm, dry and intact. Aside from the Veteran’s statements of having a skin rash, he has not submitted any relevant evidence of a nexus between his current skin rash condition and service. As indicated, the Veteran did not establish treatment for any health conditions until approximately 40 years after service. Such records do not mention any treatment for a skin rash or a relationship to service. While the Veteran is competent to report having experienced symptoms of a skin rash since service, he is not competent to determine that these symptoms were manifestations of Agent Orange. The issue is medically complex, as it requires knowledge of symptoms reported many years after service and exposure to herbicides. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been afforded a VA examination for his claimed skin rash condition. Notably, there is no evidence of any related symptoms in service. The only evidence before the Board that might ‘indicate” that the skin rash “may be associated with” service is the Veteran’s own allegation of a nexus to service, unaccompanied by the type of indication that would meet the requirements of McLendon and § 3.159(c)(4)(C). As a general matter, a bare allegation of a link is not similar to the type of evidence contemplated by the statutes and regulations, which McLendon described: equivocal or generalized medical evidence or credible evidence of symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; cf. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (noting that the veteran testified “he had experienced ringing in his ears (i.e., tinnitus) in service and that he has experienced such ringing ever since service” sufficed to “indicate” the disability may be associated with service). A “conclusory generalized statement” that a service-connected illness caused present medical problems was not enough to satisfy McLendon’s third element. Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010). Thus, the Veteran’s bare assertion of a link, without other indication of association with service is not sufficient to indicate that the skin rash may be associated with service. Accordingly, service connection for hearing loss, tinnitus, and skin rash must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel