Citation Nr: 18154005 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-25 121 DATE: November 29, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for allergic dermatitis is granted. REMANDED The issue of entitlement to service connection for a right ankle disability is remanded. The issue of entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Tinnitus originated during active service. 2. Allergic dermatitis was initially manifested during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 2. The criteria for service connection for allergic dermatitis are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1967 to April 1971. The Veteran appeared at a February 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In May 2017, the Board of Veteran’ Appeals (Board) dismissed the issue of service connection for dental trauma residuals for dental treatment purposes only as the benefit had previously been granted for teeth numbers 23 and 24. In July 2018, the Agency of Original Jurisdiction granted service connection for right knee degenerative arthritis and assigned a 10 percent rating for the disability, effective October 18, 2011. Therefore, those issue are no longer on appeal. Service Connection Service connection may be established for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Tinnitus The Veteran asserts that service connection for tinnitus is warranted secondary to significant in-service noise exposure including five-inch gun and 50 caliber machine gun fire and engine room noise while aboard the USCGC Klamath. The service medical documentation does not refer to tinnitus or ringing of the ears. The service personnel records show that the Veteran served with the Coast Guard and was stationed aboard the USCGC Klamath. A December 2014 treatment record from Z. Chen, M.D., shows that the Veteran presented a history of tinnitus since 1969. The Veteran was diagnosed with tinnitus. At the February 2017 Board hearing, the Veteran testified that he was exposed to significant levels of noise while in the Coast Guard and experienced ringing of the ears which had persisted to the present. The report of an August 2017 audiological examination conducted for the Department of Veterans Affairs (VA) states that the Veteran reported that he had initially experienced tinnitus while in service. The Veteran was diagnosed with tinnitus. The examiner could not provide an opinion as to the etiology of the diagnosed tinnitus with resorting to speculation. The report of a December 2017 examination conducted for VA states that the Veteran reported that he had initially experienced tinnitus while in service. The Veteran was diagnosed with tinnitus. The examiner stated that “the Veteran was working in the engine room of a warship while he was in military” and “never wore ear protection and he has experienced tinnitus ever since.” The Board finds that the evidence is in at least equipoise as to whether the Veteran’s tinnitus arose during active service. The Veteran served aboard a Coast Guard cutter and reported being exposed to significant shipboard noise. He has described the onset of tinnitus during active service which has persisted to the present. The Veteran has been diagnosed with tinnitus on post service VA and private examinations, one of which related the tinnitus to service. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Allergic Skin Disability The Veteran asserts that service connection for a skin disability to include an allergic reaction is warranted as the claimed disability was incurred secondary to his exposure to oil and chemicals aboard Coast Guard vessels. While this claim was previously adjudicated as separate claims for an allergic disability and a skin disability, the Veteran clarified at the hearing before the undersigned that the allergic disability was the skin reaction. The service medical records show that the Veteran was seen for skin complaints. A July 1967 treatment record shows that the Veteran complained of a rash covering the back, chest, and arms. The impression was a rash of undetermined origins. A June 1969 treatment entry notes that the Veteran was treated for allergic dermatitis involving the upper trunk. A September 1970 treatment record shows that the Veteran was being treated for a resolving right scrotal abscess. An October 1970 treatment record notes that the Veteran complained of a rash on the arms and his legs. The report of an August 2017 skin examination conducted for VA states that the Veteran reported that he had experienced skin complaints since the “1970s.” The Veteran was diagnosed with dermatitis. The examiner stated that “it is less likely than not that the Veteran’s skin condition had its onset during active service.” The doctor opined that “hypersensitivity to allergens with recurrent dermatitis is well documented, but long-term hypersensitivity to specific chemicals such as fuel oils is more likely a function of the Veteran’s underlying susceptibility to these chemicals and less likely due to an inciting event which triggered further events later on.” In a January 2018 addendum to the August 2017 skin examination report, the doctor reiterated that “it is less likely than not that the veteran’s skin condition had its onset during active service.” The examiner commented further that: “the Veteran claims he has recurrent dermatitis ‘when exposed to engine oils when opening the hood of (my) car;’” “first, there is no exposure to engine oils when opening a hood;” “secondly engine oil cause contact dermatitis, regardless of prior exposure and it is impossible to say that his dermatitis isn’t from regular exposure to engine fuel both in the past and present;” and “lastly, it is less likely than not that his exposure to engine fuels in the 1970s causes his skin to be ultrasensitive to jet fuel nearly 50 years later.” The Board finds that the evidence is in at least equipoise as to whether the Veteran’s diagnosed dermatitis arose during active service. The Veteran was diagnosed with allergic dermatitis during active service. He has been diagnosed with dermatitis on post service VA examination. The examiner acknowledged that “engine oil causes contact dermatitis, regardless of prior exposure and it is impossible to say that his dermatitis isn’t from regular exposure to engine fuel both in the past and present.” Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for allergic dermatitis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of entitlement to service connection for a right ankle disability is remanded. A June 1967 service medical record shows that the Veteran fell and injured the right ankle. No diagnosis was made at that time. At the February 2017 Board hearing, the Veteran testified that he initially injured the right ankle during active service and experienced recurrent ankle pain and weakness since the in service injury. The report of an August 2017 ankle examination conducted for VA states that the Veteran reported that he had initially manifested a right ankle disability during active service. The Veteran was diagnosed with right ankle strain residuals. The examiner concluded that: “the Veteran demonstrates signs and symptoms consistent with right ankle sprain on this exam;” “ankle sprains, unless severe enough to result in joint instability, are self-limited conditions;” and “therefore it is less likely than not that the Veteran’s currently diagnosed right ankle sprain had their onset during active service or are related to any incident of service, to include right knee and ankle and complaints during service.” A January 2018 addendum to the August 2017 VA examination report states that the Veteran was diagnosed with mild right ankle sprain residuals. The examiner commented that “the right ankle injury was not severe enough to have resulted in a chronic ankle condition and therefore, there is no current condition to service connect.” The examiner did not address the Veteran’s credible and competent testimony as to having experienced recurrent right ankle pain and weakness since the documented in service right ankle trauma. The Board is unable to discern what the examiner meant by the statement that “there is no current condition to service connect” when the concurrent diagnosis was right ankle sprain residuals. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the August 2017 ankle examination report and the January 2018 addendum, the Board finds that further VA ankle evaluation is necessary. Clinical documentation dated after January 2017 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issue of entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. A December 2014 treatment record from Dr. Chen states that the Veteran presented a history of bilateral flatfoot since active service and the associated use of arch supports since 1972. The Veteran was diagnosed with bilateral flatfoot. The report of an August 2017 foot examination conducted for VA states that the Veteran presented a history of bilateral flatfeet since active service. The Veteran was diagnosed with bilateral flatfoot/pes planus. The examiner concluded that “it is less likely than not that pes planus had its onset during active service or is related to any incident of service.” The examiner commented that “pes planus is identified on today’s exam, however, no mention of pes planus is identified on service treatment records and this form suggests he did not have pes planus or any foot trouble upon discharge.” The examiner did not address Dr. Chen’s treatment record and the other documentation of record showing a history of bilateral flatfoot since active service. Because of the cited deficiency in the August 2017 foot examination report, the Board finds that further VA foot evaluation is necessary. 3. The issue of entitlement to service connection for bilateral hearing loss is remanded. At the February 2017 Board hearing, the Veteran testified that he initially experienced impaired hearing during active service which had persisted until the present. The report of the August 2017 audiological examination conducted for VA states that while the “Veteran demonstrates functional hearing loss, pure tone thresholds are unreliable.” The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner concluded that the diagnosed “hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service.” The examiner commented that “the whisper test performed in 1971 confirms the presence of normal hearing, but does not rule out hearing loss;” “the exam from 1970 shows normal hearing and no significant sign of noise damage;” and “there is not enough evidence to support a sudden loss from 1970 to 1971.” The Board is unable to discern from the examination report both whether the finding of unreliable pure thresholds negates the concurrent diagnosis of sensorineural hearing loss disability and whether the examiner concluded that the diagnosed hearing loss disability was not related to active service or rather that the current evidence was insufficient to establish such a relationship. In addition, the examiner appears to have relied on a whisper test, which has been found to be unreliable. Because of the cited deficiencies in the August 2017 audiological examination report, the Board finds that further VA audiological evaluation is needed to adequately address the issues raised by this appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any right ankle, bilateral foot, and bilateral hearing loss disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after January 2017. 3. Schedule the Veteran for a VA ankle examination to assist in determining the current nature of any identified right ankle disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right ankle disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right ankle disability had its onset during active service or is related to any incident of service, including the documented in service right ankle trauma. The opinion should address the Veteran’s testimony as to experiencing recurrent right ankle pain and weakness since the in service injury. 4. Schedule the Veteran for a VA foot examination to assist in determining the current nature of any identified bilateral foot disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all bilateral foot disabilities found and specifically state whether a diagnosis of pes planus is warranted. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified bilateral foot disability had its onset during active service or is related to any incident of service, including the documented in service foot complaints. Reconcile the opinion with the other opinions of record, including from Dr. Chen. 5. Schedule the Veteran for a VA audiology examination to assist in determining the nature and etiology of bilateral hearing loss disability and its relationship, if any, to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all bilateral hearing loss disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified bilateral hearing loss disability had its onset during active service or is related to any incident of service, including the Veteran’s in-service shipboard noise exposure. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel