Citation Nr: 18145155 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-25 833 DATE: October 26, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for rash of the hands and feet is remanded. Entitlement to service connection for residuals of stroke is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1984 to August 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Tinnitus The Veteran and his attorney contend the Veteran is entitled to service connection for tinnitus as he has experienced tinnitus due to in-service noise exposure. 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as tinnitus, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The Board concludes that the Veteran’s tinnitus manifested to a compensable degree in 1989 during the applicable presumptive period. The Board finds that the Veteran has tinnitus, which, as an organic disease of the nervous system, is a chronic disease listed in 38 C.F.R. § 3.309(a). As a lay person, the Veteran is competent to report symptoms that he perceived through his own senses, such as ringing in the ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran reported having tinnitus at a September 2012 VA medical appointment. A September 2013 VA examination report indicates the Veteran reported having constant tinnitus since 1989. The September 2013 VA examiner diagnosed the Veteran with tinnitus. In his May 2016 VA Form 9, Substantive Appeal, the Veteran stated his tinnitus was due to exposure to weapons fire and training while in service. The Veteran’s service personnel records illustrate the Veteran’s military occupational specialty was a food services specialist. The Board acknowledges that such a military occupational specialty has a low probability of noise exposure. However, the Veteran’s service personnel records also reflect that he was awarded a Rifle Sharpshooter badge. Therefore, giving the Veteran the benefit of the doubt, the Board finds that exposure to hazardous noise is consistent with the circumstances of the Veteran’s service. The Board finds the Veteran competent and credible with regard to his claim of experiencing symptoms of tinnitus beginning in 1989. Even with the lack of treatment for tinnitus following service until 2012, the Board finds the Veteran competent and credible to report as to the nature of his tinnitus. Therefore, as the Veteran left service in August 1988, the Board concludes the criteria for a 10 percent rating for the Veteran’s tinnitus were met during the applicable presumptive period as the competent and credible evidence supports the Veteran’s tinnitus began in 1989. 38 C.F.R. § 4.87, Diagnostic Code 6260 (providing a 10 percent rating for recurrent tinnitus). The Board acknowledges that the September 2013 VA examiner opined that the Veteran’s tinnitus was not caused by or a result of military noise exposure. In support of the opinion, the examiner stated that the Veteran was a food service cook during service, which has a low probability of noise exposure. In addition, the examiner noted how the Veteran reported his tinnitus began after service. However, as the Board finds the Veteran to be competent and credible to report having constant tinnitus since 1989, which is within a year of his discharge from service, service connection is warranted under the presumptive service connection theory of entitlement. As such, the Board finds that the September 2013 opinion does not rebut the presumption of service connection for tinnitus. The Veteran has competently and credibly asserted that he experienced constant tinnitus within the one-year presumptive period and has alleged that he currently experiences tinnitus. The Board places great weight of probative value on the Veteran’s statements. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his service. Therefore, resolving any doubt in favor of the Veteran, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran underwent a VA examination for his bilateral hearing loss in September 2013. Following the examination, the VA examiner opined that the Veteran’s bilateral hearing loss is not related to his service. For the right ear hearing loss, in support of the opinion, the VA examiner noted how the Veteran’s military occupational specialty has a low probability of noise exposure, and the examiner noted how there was no significant threshold shift between the audiogram at the entrance examination compared to the exit examination. Following the VA examination, the Veteran reported in his May 2016 VA Form 9, Substantive Appeal, that his hearing loss was due to exposure to weapons fire and training while in service. Therefore, the examiner did not address the issue of whether the Veteran’s current right ear hearing loss is related to his in-service noise exposure from weapons training, irrespective of the normal exit examination. Thus, an additional VA opinion is necessary. In addition, the VA examiner noted how the Veteran had hearing loss prior to service and that the Veteran’s bilateral hearing loss was not aggravated beyond the normal progression in military service. In support of the opinion, the VA examiner noted how the audiogram from the Veteran’s exit examination showed no significant threshold shift when compared to the audiogram from enlistment. The Board acknowledges the Veteran had left ear hearing loss when entering service per VA policy. See 38 C.F.R. § 3.385. However, the rationale as to the aggravation of the Veteran’s left ear hearing loss is insufficient. Thus, an additional VA opinion as to whether the Veteran’s left ear hearing loss was aggravated by his service is necessary. 2. Entitlement to service connection for rash of the hands and feet is remanded. The Board cannot make a fully-informed decision on the issue of rash of the hands and feet because no VA examiner has opined whether the Veteran’s skin disorder, diagnosed as eczema of the hands and feet and tinea pedis, is related to the Veteran’s service, to include exposure to contaminants at Camp Lejeune. Therefore, a remand is necessary to obtain a VA examination and opinion to determine the nature and etiology of the Veteran’s skin condition. 3. Entitlement to service connection for residuals of stroke is remanded. Initially, the Board notes that in December 2013 the Veteran identified relevant private treatment records that could be obtained from the Harris County Hospital District Medical Records Archives. In a December 2015 letter to the Veteran, VA indicated that it could not obtain the records because the Veteran did not list an address for Harris County Hospital District Medical Records Archives. Upon remand, the Veteran should be provided with another opportunity to give any needed information and to authorize the release of these records so the Agency of Original Jurisdiction can make another attempt to obtain these records pursuant to 38 C.F.R. § 3.159. In addition, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran’s current residuals of stroke are related to service, to include exposure to contaminants at Camp Lejeune. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA records from March 2016 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources, to include the records from Harris County Hospital District Medical Records Archives. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination to determine the nature and possible relationship to service of the Veteran’s bilateral hearing loss. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The VA medical expert should provide an opinion on the following: A. Regardless of the Veteran’s July 1988 audiological examination upon leaving service showing no right ear hearing loss for VA purposes and no threshold shifts, the examiner should answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current right ear hearing loss is related or attributable to his military service, to include exposure to noise from weapons fire and training in service? B. Is it at least as likely as not (a 50% or greater probability) that the Veteran’s left ear hearing loss disability was aggravated (non-temporary increase in severity) by service and, if so, was any increase in severity clearly and unmistakably (undebatable) due to its natural progress? The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran’s rash of the hands and feet. His electronic claims file, including a copy of this decision and remand, must be made available to the opinion provider for review. The VA medical expert should provide an opinion on the following: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s skin condition, diagnosed as eczema of the hands and feet and tinea pedis, is related or attributable to his military service, to include exposure to contaminants at Camp Lejeune? The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in item 1, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran’s residuals of stroke. His electronic claims file, including a copy of this decision and remand, must be made available to the opinion provider for review. The VA medical expert should provide an opinion on the following: A. Provide a diagnosis for any residual of a stroke that has existed during the pendency of the claim (since November 2012). In answering this question, the examiner is to address the September 2012 and December 2012 VA treatment notes that reflect an abnormal gait due to effects of a stroke and residual weakness on the left side. B. Please identify the likely etiology of each diagnosed residual. Specifically, respond to the following question for each diagnosed residual: Is it at least as likely as not (a 50% or greater probability) that any diagnosed left residual of stroke is related or attributable to his military service, to include exposure to contaminants at Camp Lejeune? The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel