Citation Nr: 18152550 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-20 081 DATE: November 27, 2018 ORDER Entitlement to service connection for neck pain is dismissed. Entitlement to service connection for allergic rhinitis is dismissed. Entitlement to service connection for a lung condition is dismissed. Entitlement to service connection for bradycardia is dismissed. Entitlement to service connection for degenerative joint disease is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED The issue of service connection for cardiomegaly is remanded. The issue of service connection for a skin condition is remanded. The issue of service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. At the July 2018 Board hearing, the Veteran withdrew his appeals for entitlement to service connection for neck pain, allergic rhinitis, a lung condition, and bradycardia. 2. The preponderance of the evidence is against finding that the Veteran has degenerative joint disease due to an in-service event, injury, or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left ear hearing loss. 4. The preponderance of the evidence is against finding that the Veteran has tinnitus due to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal have been met for the claim of entitlement to service connection for neck pain. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal have been met for the claim of entitlement to service connection for allergic rhinitis. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal have been met for the claim of entitlement to service connection for a lung condition. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal have been met for the claim of entitlement to service connection for bradycardia. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for service connection for degenerative joint disease are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2018 Board hearing, the Veteran expressly withdrew his appeals regarding the issues of entitlement to service connection for neck pain, allergic rhinitis, lung condition, and bradycardia prior to promulgation of an appellate decision. The withdrawal at the hearing was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. 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. Hearing loss and tinnitus (organic diseases of the nervous system), as well as arthritis (as degenerative joint disease), are chronic conditions listed under 38 C.F.R. 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303 (b). Chronic diseases will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307 (a)(3). 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. 1. Entitlement to service connection for degenerative joint disease The Veteran contends that he has degenerative joint disease (DJD) of the knees and hands due to his military service. At the July 2018 hearing, the Veteran testified that he constantly used his hands during service as an aircraft mechanic. Following service discharge, the Veteran worked in the restaurant industry until he retired. The Board concludes that, while the Veteran has a current diagnosis of DJD, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of DJD 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). Service treatment records are silent regarding any musculoskeletal issues. VA medical records from March 2007 note the Veteran reported having arthritis, but he declined to have X-rays taken at the time. He was diagnosed with DJD. In September 2014, the Veteran was noted to have chronic arthritis knee pain. VA treatment notes from November 2016 show the Veteran’s DJD was chronic but stable, and was treated with ibuprofen. VA treatment records show the Veteran was not diagnosed with DJD until 2007, nearly 40 years after his separation from service. At the hearing, the Veteran testified that he did not know when he was first treated for arthritis. He has not submitted any additional medical records or an opinion that would support his claim that his DJD is etiologically related to service. While the Veteran believes his DJD is related to his military service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the claim of service connection for DJD must be denied. 2. Entitlement to service connection for left ear hearing loss and tinnitus At a November 2013 Decision Review Officer hearing and at the Board hearing, the Veteran testified that he was exposed to aircraft noise during service. The Veteran is currently service-connected for right ear hearing loss. However, the Board notes that when asked at the Board hearing about any conditions with regarding the left ear, the Veteran testified that he did not have an issue with the left ear aside from ringing in his ears. For VA purposes, impaired hearing is a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; or when the auditory threshold for at least three of these frequencies 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. In evaluating service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to November 1966, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1966, those standards have been set by the International Standards Organization (ISO) American National Standards Institute (ANSI). Based on a review of the Veteran’s service treatment records, it appears one of the in-service audiometric examinations were reported in ASA standards; thus, the Board has converted the ASA standards into ISO standards, as reflected in the parentheses. During service, the Veteran did not report having an ear problem or hearing loss. His May1966 service entrance audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) -10 (0) n/a 10 (15) His June 1966 service audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 0 15 5 A May 1968 service audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 0 0 10 The Veteran’s November 1969 service separation audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 5 15 The Veteran was afforded a VA audiological examination in February 2013. He reported that he worked on jet engines and few planes during service, and that hearing loss began 20 to 25 years prior. The Veteran also stated that tinnitus began in 2000. His audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 5 15 25 Using the Maryland CNC speech discrimination test, speech audiometry revealed speech recognition ability of 96 percent in the left ear. The VA examiner determined that based on audiometric test results, the Veteran did not have hearing loss in the left ear. The examiner also opined that the Veteran’s tinnitus was not caused by service based upon delayed onset in 2000, as reported by the Veteran. At a VA audiology consultation in November 2014, it was noted there was no significant change in the Veteran’s hearing since the 2013 VA examination, and he was not found to have left ear hearing loss. A December 2015 VA audiology evaluation shows the Veteran reported having intermittent tinnitus, and he was found to have normal hearing in the left ear through 3,000 Hz, sloping to a mild hearing loss. The audiologist stated there was no significant change compared to the previous evaluation. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has left ear hearing loss. In-service and post-service audiometric examinations show the Veteran did not meet VA criteria for hearing loss. VA medical records indicate the Veteran’s left ear hearing was within normal limits without any significant changes when compared to previous evaluations. Further, the Veteran indicated at the Board hearing that he did not have left ear hearing loss. The Board also concludes that, although the Veteran has a diagnosis of tinnitus, the preponderance of the evidence is against finding tinnitus was caused by in-service noise exposure. Though Veteran is competent to report that tinnitus began during service and continued to the present, the Board his reports of when tinnitus began are inconsistent. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). At the 2013 VA examination the Veteran reported that tinnitus onset in 2000, 30 years after service. At VA audiology evaluations in 2014 and 2015, the Veteran did not mention that tinnitus was caused by or was present since military service. It was not until the July 2018 Board hearing that the Veteran stated his tinnitus has been present since service. In the October 2015 substantive appeal, the Veteran’s representative contends that the presumption of immediate onset of the condition as a requirement for service connection, due to not complaining of the condition until the year 2000, has no merit. The Board notes, however, that all the evidence must be considered, including the Veteran’s lay statements about when a condition that he experiences through his own senses began. Except for the Veteran’s Board hearing testimony, there is no other evidence in the claims file that supports the contention that tinnitus was caused by in-service noise exposure and existed since service discharge. The Board finds that the Veteran’s military service did not cause left ear hearing loss or tinnitus, and tinnitus did not manifest to a compensable degree within one year of service separation. Therefore, service connection is not warranted and the claims are denied. In reaching these 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for cardiomegaly and a skin condition is remanded The Veteran contends his cardiomegaly and skin condition are related to herbicide exposure during service in Vietnam. Following a review of the claims file, it is unclear whether evidence is available to substantiate the Veteran’s service in Vietnam, and the Veteran has not received a VA examination regarding these conditions. Remand is required for further development to confirm the claimed service in Vietnam, and to obtain VA examinations. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board has recharacterized the issue of service connection for anxiety and trouble focusing as service connection for an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Remand is required for a VA examination. The matters are REMANDED for the following action: 1. Contact the appropriate records agency and conduct research to determine where if the Veteran was exposed to herbicides while assigned as a TURBOPROP MECHANIC FROM OCTOBER 17, 1966 TO JANUARY 20, 1970 with the 1370th Photo Mapping Wing (moved from Turner Air Force Base, Georgia to Forbes Air Force Base, Kansas in May 1966). If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record and the Veteran should be notified and provided the opportunity to obtain and submit the evidence 2. Associate with the claims file any outstanding private or VA medical records regarding the Veteran’s heart condition, skin condition, and mental health treatment. 3. After obtaining the records requested above, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his cardiomegaly. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 4. The examiner should address the following: (a.) Whether the Veteran’s cardiomegaly was caused by any in-service event, injury, disease, or disorder, including presumed exposure to herbicide agent. Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide the requested opinions 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. 5. In addition to any records obtained because of this remand, the examiner’s attention is drawn to the following: (a.) 1966 – 1969 Service Treatment Records (STRs) – Reports of medical history and examinations were normal (b.) June 2012 VA Medical Records (VAMRs) – Chest X-ray showed mild cardiomegaly (c.) September 2012 VAMRs – Echocardiogram showed no cardiomegaly (d.) May 2016 VAMRs – Chest X-ray showed mild cardiomegaly (e.) July 2018 Board Hearing Transcript – Veteran testified that his cardiomegaly causes circulatory problems 6. After obtaining the records requested above, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his skin condition, specifically basal cell carcinoma. All indicated tests and studies should be accomplished and the findings reported in detail. 7. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 8. The examiner should address the following: (a.) Whether the Veteran’s basal cell carcinoma was caused by any in-service event, injury, disease, or disorder, including presumed exposure to herbicide agent. Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide the requested opinions 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. 9. In addition to any records obtained because of this remand, the examiner’s attention is drawn to the following: (a.) 1966 – 1969 Service Treatment Records (STRs) – Reports of medical history and examinations were normal (b.) December 1998 Private Medical Records (PMRs) – Veteran was diagnosed with basal cell carcinoma on the left cheek (c.) February 2012 PMRs – Basal cell carcinoma excised on the right side of the Veteran’s neck (d.) February 2015 VAMRs – Veteran reported having basal cell carcinoma removed from his nose six weeks prior (e.) October and November 2016 PMRs – Veteran noted to have basal cell carcinoma on parts of his face (f.) August 2018 PMRs – Veteran complained of skin lesions on his head and face 10. After obtaining the records requested above, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of any acquired psychiatric disorder. All indicated tests and studies should be accomplished and the findings reported in detail. 11. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 12. The examiner should address the following: (a.) Identify all acquired psychiatric disorders (b.) IF A DIAGNOSIS OF PTSD IS PROVIDED, the VA examiner should provide the following opinion: Did the Veteran’s PTSD have its onset during service or is otherwise related to active service? The VA examiner should identify the claimed stressor(s) that serve(s) as the basis for the diagnosis of PTSD, or if the diagnosis is based on the Veteran’s fear of hostile military or terrorist activity. (c.) FOR ALL OTHER PSYHIATRIC DIAGNOSES, the VA examiner should provide the following opinions: Did the acquired psychiatric disorder other than PTSD have its onset during service or is otherwise related to active service? Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide the requested opinions 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. 13. In addition to any records obtained because of this remand, the examiner’s attention is drawn to the following: (a.) 1966 – 1969 Service Treatment Records (STRs) – Reports of medical history and examinations were normal (b.) July 2001 VAMRs – Veteran noted to have mild anxiety (c.) October 2003 VAMRs – Veteran reporting being anxious (d.) June 2012 VAMRs – Veteran was recently discharged from psychiatric hospital due to wanting to harm others and himself; diagnosed with major depression and alcohol dependence (e.) May 2015 VAMRs – Veteran noted to have situational anxiety and depression following a motor vehicle accident (f.) November 2016 VAMRs – Veteran noted to have anxiety and depression; discontinued use of medication and was doing well (g.) June 2018 VAMRs – Veteran reported being anxious, easily startled, and quickly angered; assessed to have unspecified anxiety disorder (h.) July 2018 Board Hearing Transcript – Veteran reported that during service, his plane was shot at; planes carried prisoners of war; has struggled with anxiety since service; has had nightmares and flashbacks 14. After completing all indicated development, readjudicate the claim considering all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for appellate disposition. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel