Citation Nr: 18149507 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-23 252 DATE: November 9, 2018 ORDER The appeal as to the issue of entitlement to service connection for an eye condition is dismissed. The appeal as to the issue of entitlement to service connection for a sinus condition is dismissed. The appeal as to the issue of entitlement to service connection for a respiratory condition is dismissed. The appeal as to the issue of entitlement to service connection for cysts is dismissed. The appeal as to the issue of entitlement to service connection for a temporomandibular joint disorder (TMJ) is dismissed. The appeal as to the issue of entitlement to service connection for a dental condition is dismissed. New and material evidence having been presented, the claim of entitlement to service connection for a skin condition is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for tinnitus is reopened. Service connection a skin disability, to include tinea versicolor, onychomycosis, and onycholysis is granted. Service connection for tinnitus is granted. Service connection for headaches is granted. REMANDED The issues of entitlement to service connection for arthritis, a back condition, a neck condition, a bilateral leg condition, and a bilateral hearing loss disability are remanded for additional development. FINDINGS OF FACT 1. In April 2018, prior to the promulgation of a decision by the Board, the Veteran stated that he wished to withdraw from appellate review his claims of entitlement to service connection for an eye condition, a sinus condition, a respiratory condition, cysts, TMJ, and a dental condition, to include the residuals of a broken tooth. 2. The claim of entitlement to service connection for a skin condition was originally denied in a May 1996 rating decision. A December 2008 rating decision denied the petition to reopen the Veteran’s previously denied claim of entitlement to service connection for a skin disability. This decision was not appealed and no new and material evidence was submitted to VA within one year of the decision; the December 2008 decision became final. 3. Some of the evidence received since the December 2008 denial relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a skin condition. 4. The claims of entitlement to service connection for tinnitus and a bilateral hearing loss were denied in a December 2008 rating decision. The decision was not appealed and no new and material evidence was submitted within one year of the decision; the decision became final. 5. Some of the evidence received since the December 2008 denial relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for tinnitus and bilateral hearing loss. 6. The Veteran’s skin conditions, to include tinea versicolor, onychomycosis, and onycholysis, had their clinical onset during active service. 7. The Veteran’s tinnitus had its onset during active service. 8. The Veteran’s headaches had their onset during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to service connection for an eye condition, a sinus condition, a respiratory condition, cysts, TMJ, and a dental condition, to include the residuals of a broken tooth, are met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The December 2008 rating decision that denied the petition to reopen the claim of entitlement to service connection for a skin condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 3. New and material evidence has been submitted, and the claim of entitlement to service connection for a skin disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The December 2008 rating decision that denied the claims of entitlement to service connection for tinnitus and bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 5. New and material evidence has been submitted, and the claims of entitlement to service connection for tinnitus and bilateral hearing loss disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for service connection for a skin condition, to include tinea versicolor, onychomycosis, and onycholysis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 7. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to December 1970. He was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. The Board finds that such evidence has been received regarding the claims of entitlement to service connection for a skin condition, a bilateral hearing loss disability, and tinnitus; as a result, the claims are reopened. Withdrawal A substantive appeal may be withdrawn in writing or on the record at a hearing, by the Veteran or his authorized representative, at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At the April 2018 hearing, prior to the Board promulgating a decision, the Veteran and his representative stated that the Veteran wished to withdraw his claims of entitlement to service connection for an eye condition, a sinus condition, a respiratory condition, cysts, TMJ, and a dental condition. He no longer desired to proceed with his appeal to this extent. The Board finds that the April 2018 hearing testimony satisfies the requirements for withdrawal of a substantive appeal as to the issues of entitlement to service connection for an eye condition, a sinus condition, a respiratory condition, cysts, TMJ, and a dental condition. 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(d)(5); 38 C.F.R. § 20.202. As the pertinent criteria for withdrawal of the issues of entitlement to service connection for an eye condition, a sinus condition, a respiratory condition, cysts, TMJ, and a dental condition have been satisfied, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. The Board consequently does not have jurisdiction to review them, and they are dismissed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. 1. Entitlement to service connection for a skin condition, to include tinea versicolor, onychomycosis, and onycholysis. The Veteran contends that he began to experience skin discoloration and foot fungus when he served in Vietnam. He states that he also noticed these symptoms later when he was stationed in Italy but was advised that it would delay his separation from service for three months if he were to raise attention to the condition for purposes of treatment. Service treatment records are absent complaints of or treatment for any abnormalities of the skin. Post-service treatment records reflect diagnoses and treatment for tinea versicolor, onychomycosis, and onycholysis. An October 1974 treatment note stated that the Veteran had tinea versicolor for which he was prescribed Selson soap. A December 1974 VA examination report documented white spots on the Veteran’s chest, back, and extremities, that reportedly had been present since 1968. At an April 1996 VA examination, the Veteran was diagnosed with chronic recurring tinea versicolor and onychomycosis of the nails of both feet. After review of the record, the Board finds that service connection for tinea versicolor, onychomycosis, and onycholysis is warranted. Here, the Board finds the Veteran’s reports of skin signs and symptoms both competent and credible, especially given the Veteran’s described symptoms shortly after service. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). The above reflects that the evidence before the Board as to the issue of whether the diagnosed tinea versicolor, onychomycosis, and onycholysis are related to service consists of credible lay testimony indicating that since service the Veteran has experienced signs and symptoms that were later diagnosed as these skin conditions. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). In these circumstances, a remand for a VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a skin condition, to include tinea versicolor, onychomycosis, and onycholysis is granted. 38 U.S.C. §§ 1110, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for tinnitus. Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is classified as an organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015) (to establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). The Veteran contends that he first experienced ringing of the ears in service, which he contends is related to acoustic trauma in service. He specifically asserts that he was exposed to aircraft, artillery, and rocket noise without noise protection. Military personnel records reflect that the Veteran had a military occupational specialty (MOS) of Aviation Boatswains Mate and that he was stationed in Cam Ranh Bay, Vietnam. The Board finds that the Veteran’s military history and his contentions regarding in-service acoustic trauma are consistent with the circumstances of his service. Post-service treatment records reflect a current diagnosis of tinnitus. Specifically, a November 2010 VA examiner noted the Veteran’s report of longstanding tinnitus. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). There is no reason to doubt the credibility of the Veteran’s statements, particularly given the information in his service personnel records, which confirms his exposure to acoustic trauma. Therefore, the remaining inquiry is whether the Veteran’s current tinnitus is related to service. At the November 2010 VA examination, the Veteran reported that he has longstanding tinnitus as a result of service. The examiner opined that the Veteran’s tinnitus was less likely than not related to military noise exposure but did not provide a rationale. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran’s reports of the in-service onset of his tinnitus and its continuation thereafter both competent and credible. Further, the Veteran’s statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). As such, the Board finds that the Veteran’s statements are sufficient to establish service connection in this instance. In so finding, it acknowledges that the examiner who conducted the November 2010 VA audiological examination opined that the Veteran’s current tinnitus was not related to service. However, the Board finds this opinion inadequate as it did not provide a rationale. The examiner also did not address the Veteran’s statements of ringing in his ears since service and thereafter. As noted above, there is no reason to doubt the credibility of the Veteran’s statements, particularly given the information in his service personnel records, which confirms his exposure to acoustic trauma. As the preponderance of the evidence supports a finding that the Veteran’s current tinnitus was incurred in service, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for headaches. The Veteran asserts that he initially began to experience headaches after he was involved in two motor vehicle accidents when he was stationed in Vietnam and when he was stationed in Italy. He reports that in Vietnam, the Jeep he was in went off the road and flipped over. He was told by the Army corpsman that he probably had a concussion. When he was in Italy, the Veteran was on his way back to the Main PX station and was hit by car while on the crosswalk. He contends that he was told he had a slight concussion. The Veteran further asserts that since these accidents he has had headaches. A June 2017 statement by the Veteran’s fellow service member confirmed these contentions. Service treatment records are absent complaints of or treatment for headaches. However, the Veteran states that he continues to get headaches that last one to two days. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). As headaches are identifiable by a layperson by their unique features, the remaining inquiry is whether the Veteran’s current headaches are related to service. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. The Veteran essentially testified during his April 2018 Board hearing that his current headaches began shortly after the in-service motor vehicle accidents and have continued since that time. That contention is supported by his reports during the course of this claim. Therefore, the Board finds his account of the in-service onset of headaches and their continuation thereafter both competent and credible. As such, the Board finds that the Veteran’s statements are sufficient to establish service connection in this instance. As the preponderance of the evidence supports a finding that the Veteran’s current headaches were incurred in service, service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for arthritis is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a neck disability is remanded. 4. Entitlement to service connection for a bilateral leg disability is remanded. The Veteran asserts that since the motor vehicle accidents described above he has experienced back and neck pain. He additionally attributes his bilateral leg disability and arthritis to these incidents. The Veteran was afforded a VA examination in connection with his claims for service connection for the arthritis, back, neck, and leg disabilities in June 2017. The examiner diagnosed the Veteran with rheumatoid arthritis and degenerative joint disease of the cervical and thoracolumbar spine. He did not diagnose a distinct bilateral leg disability. The examiner opined that the back and neck disabilities were less likely than not related to the in-service motor vehicle accidents. The examiner based his opinion on the normal separation examination and no complaints in treatment records dated in 1995. The examiner also opined that rheumatoid arthritis is less likely than not related to service because it is not caused by trauma, to include the in-service motor vehicle accidents. The Board points out that the examiner’s rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a “medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.” See also Barr, 21 Vet. App. at 311 (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). As such, the opinion provided is inadequate, and an additional opinion must be obtained on remand. 5. Entitlement to service connection for a bilateral hearing loss is remanded. The Veteran was afforded a VA audiological examination in November 2010, as a result of which the examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to service. She stated that her opinion was based on clinical experience and evidence in the record but did not provide a rationale. The Board finds this opinion inadequate as it is conclusory and does not have a well-supported rationale. As such, an additional VA examination is warranted. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”); see also Barr, 21 Vet. App. at 311. The matters are REMANDED for the following action: 1. Associate any service treatment records with the Veteran’s claims file from the active service period of March 1967 to December 1970, to specifically include records related to hospitalizations following the motor vehicle accidents described above. All efforts to obtain records should be documented, and if unavailable, a formal finding should be made. 2. After completing the above action, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral leg condition, rheumatoid arthritis and degenerative joint disease of his cervical and thoracolumbar spine. The clinician should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. If the Veteran only reports pain, but there is no diagnosable bilateral leg condition, the clinician should indicate whether the Veteran’s bilateral leg pain causes functional impairment. (a.) The examiner should address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s back or neck disabilities had their onset in, were caused by, or are otherwise related to service, to include as a result of his in-service motor vehicle accidents. (b.) The examiner should then address whether it is at least as likely as not (50 percent probability or more) that any bilateral leg condition, including only bilateral leg pain that causes functional impairment, had its onset in, was caused by, or is otherwise related to service, to include complaints of pain as a result of his in-service motor vehicle accidents. (c.) Thereafter, the examiner should then address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s rheumatoid arthritis had its onset in, was caused by, aggravated by, or is otherwise related to service, to include as a result of aggravation by joint injuries sustained in the in-service motor vehicle accidents. For all opinions rendered, the clinician should provide a complete rationale. If the clinician cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss disability. The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual. (a.) The examiner should address whether it is at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss was incurred in service, or is the result of exposure to loud noise during the Veteran’s period of service, to specifically include his exposure to aircraft, artillery, and rocket noise without noise protection. Please explain why or why not. The examiner is advised that the lack of a diagnosis of bilateral hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including noise exposure, caused a current bilateral hearing loss disability even though it may have been initially diagnosed years after the Veteran’s discharge from service. If the examiner finds it significant that the Veteran did not have bilateral hearing loss in service, then the examiner must provide a full explanation as to the significance of such finding in light of sound medical principles. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel