Citation Nr: 18156537 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 14-31 002A DATE: December 10, 2018 ORDER Service connection for tinnitus is granted. REMANDED An initial compensable rating for a service-connected skin disability is remanded. Service connection for hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus disability began during his active service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2012, September 2012, and March 2014 rating decisions by the Houston, Texas Department of Veteran’s Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for additional development in December 2014. They have been returned and are now before the Board again. In December 2017, a video hearing was held before the undersigned; a transcript of the hearing is associated with the record. Service connection for tinnitus. I. Legal Criteria “Service connection” means that a Veteran has a disability resulting from a disease or injury that began in or was aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Normally, to establish direct service connection, there must be evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal link (“nexus”) between the in-service disease or injury and the current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus as an organic disease of the nervous system, service connection may alternatively be established with evidence that the chronic disease began during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Veterans are qualified (“competent”) to testify to the presence of observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board is required to weigh the evidence of record, including the medical evidence, to make factual determinations. Cf. Evans v. West, 12 Vet. App. 22, 30 (1998). II. Factual Background The Veteran served as a medic in the Army. The Veteran reported that he has had ringing in his ears from service due to exposure to noise associated with gunfire and working with helicopters for medical evacuations. The Veteran reported that he was subjected to gunfire noise during basic training and the provided hearing protection was inadequate and routinely fell out of his ears without him noticing. Additionally, the Veteran reported that as a medic he was exposed to loud helicopter noises as part of his duties and training for at least half the total days he was in service. See October 2019 attorney correspondence. III. Analysis Here, there is highly probative evidence of a presently existing tinnitus disability satisfying the first element of service connection. The Veteran has provided competent and credible lay statements that he has ringing in his ears. The subjective nature of the observable symptoms of tinnitus, e.g. ringing or buzzing in the ears, is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran’s statements are competent as to his personal lay observations of ringing in the ears and his credibility is not doubted. Thus, the requirement of a current disability is established. For the second element, there is highly probative evidence that the Veteran experienced acoustic trauma during service. The Veteran provided lay statements that he served in the Army and was exposed to severe noise hazards, including gunfire during basic training while wearing inadequate hearing protection and helicopter noise for medical evacuations during at least half his days of service. Again, the Veteran’s statements are competent as to his lay observations while serving on active duty and his credibility is not doubted. Therefore, the Board holds the requirement of an in-service injury of ear trauma is established. Lastly, there is evidence of a causal link between the present disability and the in-service event, namely competent and credible evidence establishing the onset of tinnitus in service, following exposure to hazardous noise, which continued to the present. Unlike hearing loss (which is a complex disability that requires audiological assessment to diagnose), tinnitus is a disability that can be diagnosed by the Veteran’s independent lay observation. Thus, the Veteran’s statements of when the ringing in his ears began, and whether or not it has persisted throughout the years, carries great probative weight in this instance. Accordingly, the Board finds that the evidence supports a finding that the Veteran’s tinnitus disability began during service and has persisted since that time. Therefore, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Service connection for a hearing loss disability is remanded. A hearing loss disability diagnosis requires an auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz (Hz) to be 40 decibels (dB) or greater; or at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz to have an auditory threshold of 26 dB or greater; or speech recognition scores using the Maryland CNC Test to be less than 94 percent. See 38 C.F.R. § 3.385. A review of the record does not reveal evidence of the required thresholds. Although VA tested and provided the Veteran with hearing aids in 2015, only a summary of the test results is included in the record and the supporting data is not provided. A medical examination or medical opinion is necessary for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 Veteran’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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). These elements appear to be satisfied for the Veteran’s reported hearing loss. Regarding the first element, there is evidence in the Veteran’s VA treatment records that he has been tested for hearing loss and subsequently issued hearing aids. The missing audiometric data may establish that he has a hearing loss disability (as defined for VA disability compensation purposes). Regarding the second element, as described above, the Veteran has provided competent and credible lay testimony that he experienced acoustic trauma due to exposure to gunfire and helicopter noise while in service. Regarding the third element, this acoustic trauma “may be associated with” the onset of the Veteran’s reported hearing loss. Regarding the fourth element, there is insufficient evidence for the Board to make an informed decision, because there is not a medical examination noting whether the Veteran has hearing loss at the thresholds required to qualify for a VA service connection hearing loss disability. Additionally, there is also not a medical opinion as to whether there is a causal link between the Veteran’s reported hearing loss and the experienced acoustic trauma. Therefore, the four McLendon elements are satisfied and the Veteran is entitled to a VA examination and medical opinion as to whether it is at least likely as not (a 50 percent or better probability) that any diagnosed hearing loss disability had its onset in active service or is otherwise related to the Veteran’s service. The RO attempted to schedule the Veteran for a hearing loss and tinnitus examinations in February 2014, but the record shows that the Veteran did not report to this examination. See March 2014 Rating Decision. VA regulations provide that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Here, the Board finds that the Veteran provided a compelling statement of good cause in his March 2014 Notice of Disagreement. Specifically, the Veteran reported that he did not receive the notification that the appointments had been scheduled despite living at the same address for over 20 years without any issues with receiving mail. Additionally, the Veteran highlighted that he had not missed or rescheduled any VA appointments because he considers that “all VA matters [are] of grave importance.” Thus, the Board finds that a remand is necessary for additional development and to afford the Veteran a VA examination pursuant to the specific directives below. 2. An initial compensable rating for a service-connected skin disability is remanded. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 and September 2012 rating decisions by the Houston, Texas Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran filed a timely Notice of Disagreement for the first rating decision in April 2012. See April 2012 Statement in Support of Claim, VA Form 21-4138. The next action taken by the RO was to issue the September 2012 rating decision, to which the Veteran filed a timely Notice of Disagreement in May 2013. See May 2013 Statement in Support of Claim, VA Form 21-4138. Thus, this appeal is from the initial rating assigned with the grant of service connection and the period reaches back to original claim. The Veteran reported that he is unable shave due to his current skin disability and that the resulting beard represents thirty percent of his face. See April 2012 Statement in Support of Claim, VA Form 21-4138. Furthermore, the Veteran reports that his skin condition continues to increase in severity and his required medications, such as topical creams, cause “chronic rashes, skin bumps, and irritations.” See September 2014 Form 9. The use of prescribed creams and shaving restrictions are documented in the Veteran’s service treatment and VA medical records. A review of the case file shows the most recent examination assessing his skin disability was conducted in August 2012. Because several years have passed since this examination and a current disability picture is crucial to determining an accurate rating in those matters, a contemporaneous examination is needed. The Board finds that a remand is necessary for additional development and to afford the Veteran a VA examination pursuant to the specific directives below. TO THE VETERAN: During the December 2017 Board hearing, the Veteran reported that he sometimes does not comprehend what is said to him and he is too embarrassed to ask the questioner to repeat what is said. Therefore, he sometimes answers questions without being certain about which question was asked. The Board encourages the Veteran to consider having someone he trusts accompany him to his examinations to ensure he hears and understands the questions and provides accurate and thorough answers to ensure proper handling of both his health care and his claims. Furthermore, the Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report and cooperate for a VA examination, without good cause may include the denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. 2. Then schedule the Veteran for a VA audiological examination with an appropriate examiner to evaluate the nature and cause of the reported hearing loss. The examiner should elicit from the Veteran a detailed history regarding the onset, progression, frequency, and severity of relevant symptoms. The examiner should discuss the Veteran’s in-service noise exposure and any post-service occupational or recreational noise exposure. The Veteran’s entire record must be reviewed by the examiner, and all indicated tests and studies must be completed. Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following: a) Identify any hearing loss. Any needed diagnostic testing should be performed and the reports of this testing should be included in the examination report (that is, not merely a summary of the data). b) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed hearing loss disability had its onset in active service or within one year of separation from service OR is otherwise related to the Veteran’s active service. 3. Then schedule the Veteran for a VA examination to determine the current severity of his service-connected pseudofolliculitis barbae. The claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the opinion and/or examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should elicit from the Veteran and record a complete history of the symptoms the Veteran attributes to his service-connected pseudofolliculitis barbae. The examiner should also respond to the following: (a) Measure and record all reported manifestations of the Veteran’s skin disabilities, including the percentage [estimated if necessary] of the entire body and of the exposed areas of the body affected by his pseudofolliculitis barbae. (b) Indicate the frequency with which the Veteran has received treatment for the skin disorder with systemic therapy such as corticosteroids or immunosuppressive drugs. (c) Discuss the symptoms attributed by the Veteran to his service-connected skin disabilities, to include the symptoms reported in his prior VA examinations. If these are not considered related to his service-connected disabilities, the examiner should so state and explain why. The examiner should consider all lay and medical evidence of record, to include the Veteran’s descriptions of the timing and severity his symptoms. TO THE EXAMINER: In the past, the Veteran has reported that he has trouble hearing and comprehending what is said and is often too embarrassed to ask the questioner to repeat the question. The Veteran has also reported that he often then attempts to piece together what is said during a conversation and to answer without truly knowing or understanding the question. The examiner is asked to watch for this and ensure the Veteran truly understands the questions asked, especially when his answers appear not to match the question asked or to be inconsistent with previous statements. A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Arritt, Associate Counsel