Citation Nr: 18157680
Decision Date: 12/14/18	Archive Date: 12/13/18

DOCKET NO. 17-37 206
DATE:	December 14, 2018
ORDER
An initial rating in excess of 10 percent for intervertebral disc syndrome (IVDS) with degenerative arthritis of the lumbar spine is denied.
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
Service connection for a cervical spine disorder is denied.
Service connection for a left knee disorder is denied.
Service connection for a left foot disorder is denied.
Service connection for obstructive sleep apnea (OSA) is denied.
Service connection for dermatitis is denied.
Service connection for skin cancer is denied.
FINDINGS OF FACT
1. The Veteran had active service from December 1970 to December 1972, to include service in the coastal waters of the Republic of Vietnam and exposure to herbicides is presumed.
2. For the entire period on appeal, the Veteran’s lumbar spine disorder was manifested by forward flexion to, at worst, 70 degrees, combined range of motion to 195 degrees, and no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and was without incapacitating episodes. 
3. Bilateral hearing loss and tinnitus are etiologically related to acoustic trauma sustained in active service.
4. A cervical spine disorder, a left knee disorder, a left foot disorder, OSA, and dermatitis were not shown in service, are not causally or etiologically related to service, and may not be presumed to have been incurred therein. 
5. Skin cancer did not manifest during service or to a compensable degree within a year thereafter, has not been continuous since service separation, and was not caused by any in-service event, including herbicide exposure, during service.  
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 10 percent for IVDS with degenerative arthritis of the lumbar spine have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2017).
2. Bilateral hearing loss was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A (2012); 38 C.F.R. § 3.303 (2017).
3. Tinnitus was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A (2012); 38 C.F.R. § 3.303 (2017).
4. A cervical spine disorder was not incurred in service.  38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
5. A left knee disorder was not incurred in service.  38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
6. A left foot disorder was not incurred in service.  38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
7. OSA was not incurred in service.  38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
8. Dermatitis was not incurred in service.  38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
9.  Skin cancer was not incurred in service, nor may it be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Increased Rating for a Low Back Disability
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.
The Veteran’s low back disability has been rated at 10 percent under DC 5243 as IVDS.  A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following:
•	forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent);
•	combined range of motion of the thoracolumbar spine not greater than 120 degrees, but less than 235 degrees (20 percent);
•	muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent);
•	incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent);
•	or, in the absence of limitation of motion, degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20 percent).
In a June 2016 VA examination, the Veteran reported chronic low back pain which had been progressively worsening with bending forward, backward, turning, prolonged sitting or standing, and attempting to lift more than twenty pounds. Range of motion testing revealed forward flexion to 70 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. Combined range of motion was 195 degrees. 
Pain was noted upon examination and range of motion testing after repetitive use testing indicated an improved forward flexion to 75 degrees, but with slightly decreased extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The examiner found no evidence of guarding or muscle spasm, but noted localized tenderness which did not result in abnormal gait or spinal contour. The examiner further found no evidence of IVDS of the thoracolumbar spine. 
A lumbar spine X-ray was also conducted which showed mild degenerative changes of the lower lumbar spine at the L5-S1 level without evidence of two or more major or minor joint groups or incapacitating exacerbations. The examiner noted that symptoms of the Veteran’s degenerative arthritis were limited to pain and possibly radiating weakness or numbness stemming from a degenerated disc in the spine. 
In August 2016, the Veteran sought private treatment for low back pain. The treating physician confirmed findings of mild degenerative arthritis without acute lytic or blastic lesions. There was no evidence of muscle spasm or guarding, ankylosis, or decreased range of motion. Additional outpatient treatment records were also reviewed and while treatment for back pain is noted, they continued to fall silent to any findings of muscle spasm, guarding, ankylosis, or decreased range of motion. 
Thus, based on the above, the Veteran displayed forward flexion to 60 degrees or more, and combined range of motion of the thoracolumbar spine of 120 degrees or more at all times during the relevant appeal period.  Additionally, no examiner found any additional limitation of motion resulting from such factors as pain, pain on use, fatigue, weakness, lack of endurance, or incoordination, as would support a higher evaluation.  Thus, an increased initial rating on that basis is not warranted.  
The Veteran has also not displayed muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Therefore, a higher rating is not warranted on this basis.
Next, the record does not reflect incapacitating episodes totaling at least two weeks in the prior 12 months, as would warrant a higher evaluation.  Finally, the Board has considered whether a separate rating based on neurological impairment is warranted and notes that the Veteran has already been awarded separate rating for his associated radiculopathy.   
The Board has also considered the Veteran’s lay statements that his disability is worse.  While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. 
Such competent evidence concerning the nature and extent of the Veteran’s lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  
The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated.  Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value.  
As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology.  In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied.
Service Connection Claims
Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.  See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 
Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  See 38 C.F.R. § 3.307.
Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are associated with herbicide exposure include skin cancer. 38 C.F.R. § 3.309 (e).
The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam."  38 C.F.R. § 3.307(a)(6)(iii). VA has interpreted this regulation to require the service member's presence at some point on the landmass or the inland waters of Vietnam for entitlement to a presumption of exposure to Agent Orange. VA determined that Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and, Ganh Rai Bay were considered to be offshore waters of the Republic of Vietnam.
VA maintains a list of US Navy and Coast Guard ships associated with military service in Vietnam that addresses whether the ship was in the inland or offshore waterways and had possible exposure to Agent Orange or other herbicides. See Vietnam Era Navy Ship Agent Orange Exposure Development Site, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (updated June 1, 2018).
 
Bilateral Hearing Loss & Tinnitus
The Veteran seeks service connection for bilateral hearing loss and tinnitus as a result of acoustic trauma sustained in active service. As the analysis is similar, the issues will be discussed together.  
Hearing loss and tinnitus are recognized by VA as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). 
Turning to the evidence, hearing loss was noted in a June 2016 VA examination.  In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds 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.  Testing results were as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	15	25	45	65	85
LEFT	15	20	40	40	50
Therefore, hearing loss is currently shown.  Further, the Veteran reported “constant tinnitus” in an April 2016 lay statement.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus).  Reports of his symptoms are also well-documented throughout VA treatment records.  Thus, the first element of service connection – a current diagnosis – has been met with regard to both appeals.
Next, the evidence supports a finding of in-service acoustic trauma.  Specifically, military personnel records (MPRs) indicated that the Veteran served aboard the U.S.S. Point Defiance in the coastal waters of Vietnam, and that the ship was frequently exposed to artillery fire. He reported that frequently in the vicinity of receiving and returning artillery fire without the use of hearing protection.  A veteran is competent to report that which he perceives through the use of his senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
Further, the Veteran’s statements are consistent with the nature of his service as a personnel clerk, during which he was assigned to the USS Point Defiance and his history of significant service noise exposure is documented throughout VA treatment records.  Further, there is no evidence of record which tends to contradict his testimony.  As such, the second element of service connection has been met for both appeals.
Next, as to continuity, the Veteran has indicated that he has experienced hearing loss and tinnitus since service.  While there is an absence of complaints or treatment for hearing loss or tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss and tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). 
The Board notes that a recent VA examination provided a negative opinion as to etiology.  However, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” diseases of hearing loss and tinnitus (38 C.F.R. § 3.309 (a)) based on a finding of “continuous” symptoms of hearing loss and tinnitus since service rather than on direct service connection. 
In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss and tinnitus since service; therefore, hearing loss and tinnitus are presumed to have been incurred in service and the appeal is granted.  Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss and tinnitus since service separation, all other service connection theories are rendered moot.
 
Cervical Spine, Left Knee, Left Foot, OSA & Dermatitis
The Veteran claims entitlement to service connection for a cervical spine disorder, left knee disorder, and left foot disorder which he asserts were due to strenuous physical activity, to include parachute jumps, during active service. He further asserts service connection for OSA and dermatitis which he contends are a result of his active service, or alternatively, began in service and have persisted since that time. 
Initially, the Veteran has been diagnosed with degenerative changes in his cervical spine, left knee and left foot. He has also been diagnosed with OSA following a sleep study, and dermatitis. Thus, the fist element required for service connection, a current diagnosis, has been met with respect to all appeals. 
Next, the service treatment records (STRs) do not contain any indications of treatment, diagnosis, or complaints of any of the above disorders during active service. At a May 1970 pre-induction examination, as well as a November 1972 separation examination, the Veteran’s lower extremities, feet, neck, and skin were found to be clinically normal. He also denied any trouble sleeping or breathing. 
While he did indicate positively for conditions such as broken bones, he explicitly noted trouble with his right leg and denied any further trouble. Further, X-rays were conducted of his back and shoulder areas in September 1970 which were normal and without evidence of a neck disorder. 
Additionally, while he did receive dermatologic treatment in August 1972, STRs indicated that the treatment was in fact for the removal of a tattoo from the Veteran’s right arm. While his skin was examined at that point, there was no evidence of dermatitis or any other diagnostic findings at that time.  Finally, while the low back disorder was well documented in service, the STRs are silent as to any complaints of other musculoskeletal disorders to include the neck, left knee or left foot. In fact, while he frequently complained of right leg pain, he did not mention any trouble with his left leg. 
The Veteran has repeatedly asserted that his claimed musculoskeletal conditions were a result of great amounts of marching, running, and helicopter jumps during active service. While it is conceded that he may have marched and ran a great deal in service, his MPRs show no indications that he took part in any helicopter rappelling or jumping. His DD Form 214 showed his military occupational specialty (MOS); however, it did not reflect any awards or commendations which would support his contention of partaking in frequent helicopter jumps. 
Further, the STRs do not reflect any treatment for any of the claimed disorders, and his post-service medical records do not indicate that he received treatment for any of the disorders immediately following his release from active service. Accordingly, as the STRs are silent for any injuries or complaints of any symptomatology related to any of the disorders, MPRs are silent for any evidence of helicopter jumps or other strenuous or traumatic events which may have caused any of the disorders, the second element of an in-service incurrence has not been shown and the appeal is denied on a direct basis.
Even if the Board were to concede that the Veteran was in fact involved in helicopter jumps or encountered skin or breathing problems during service which remained undocumented in STRs, the record is silent to any medical opinion of record by treating physicians which link his current disorders to any element of his active service.  Therefore, the third element of service connection – a medical nexus – has not been met.
With respect to all claims, the Board has considered the Veteran’s lay statements that his claims were caused by service.  He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462.  
Accordingly, as no in-service incurrence is shown with respect to the Veteran’s claims for a cervical spine disorder, left knee disorder, left foot disorder, OSA, or dermatitis, the second element of service-connection is not satisfied and the appeals are denied. 
Skin Cancer
The Veteran seeks service connection for skin cancer which he asserts is a result of his exposure to herbicides during active service. Initially, the Veteran’s MPRs reflect service on the inland coastal waters of the Republic of Vietnam. Accordingly, herbicide exposure is conceded. 
Next, the Board notes that the Veteran has been diagnosed with skin cancer. The first recorded treatment noted in the medical documents was dated in 2016. At that time, he claimed that he first noticed the lesions on his skin approximately two to three years after his separation from active service. 
However, the skin disorder claimed by the Veteran, skin cancer, characterized as squamous cell carcinoma, is not among the listed disorders for which the service connection is presumed in veterans with herbicide exposure. Accordingly, service connection may not be granted on this basis. Further, by his own assertions, his first lesions did not appear until approximately two to three years following service. 
The availability of presumptive service connection for a disability based on exposure to herbicides does not, however, preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  
In the present case, the STRs are negative for any diagnosis of or treatment for squamous cell carcinoma, or any similar carcinoma of the skin or any associated symptomatology.  The Veteran also did not seek treatment during service for any type of skin disorder.  As previously noted, he did receive treatment for the removal of a tattoo in service, but was otherwise without any diseases, injuries, or other findings involving the skin.  
Additionally, the Veteran has not asserted, and the record does not show, that he received treatment for skin cancer until 2016. This lengthy period without complaint or treatment is one factor that there has not been ongoing symptomatology, and weighs heavily against the claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  
Even assuming that the Veteran had the removal of skin cancer lesions beginning in the late 1970s following service separation, such removal would have occurred more than a year after service separation in December 1972, based upon his own assertions.  Based on the above, the medical evidence does not support a finding that a current skin disorder or carcinoma began during service or within a year of discharge, and has not been chronic and continuous since that time.  
Rather, the Veteran’s contentions have included that his current skin disorders are the result of herbicide exposure resulting from his service in Vietnam.  Nevertheless, service connection is not, by regulation, granted on a presumptive basis for basal or squamous cell carcinoma or any of the Veteran’s other current skin disorders as a result of herbicide exposure.  See 38 C.F.R. § 3.309(e).  
While the Veteran is not barred from presenting evidence of such a nexus, he has not done so in the present case; that is, he has presented no competent evidence indicating an etiological nexus between any incident of service, to include herbicide exposure, and his current skin disorders.  
In so finding, the Board acknowledges submission of medical articles which suggest a possible link. However, no treating medical provider has provided an opinion with rationale after examining the Veteran linking his skin cancer with exposure to herbicides. 
While the private and VA medical treatment records confirm current diagnoses of squamous cell carcinoma and discuss herbicide exposure in conjunction with it, examiners have repeatedly noted this possible etiological cause only after reports from the Veteran of his exposure. This evidence does not suggest either onset during or any nexus with service, to include service in Vietnam.  In the absence of such evidence, service connection on a presumptive basis is not warranted.  
As the competent medical evidence of record indicates a current skin disorder did not have its onset during service, did not manifest to a compensable degree within a year thereafter, has not been chronic since service, and is not the result of an incident of service, to include herbicide exposure, service connection for any skin disorder must be denied, to include squamous cell carcinoma and any generalized infections of the skin.  
The Veteran has asserted that his skin disorders result from herbicide and/or sunlight exposure in service.  A layperson is competent to report observable symptomatology which comes to him via his senses.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  
Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements cannot be accepted as competent medical evidence.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).
For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence weighs against the claim including, as presumptive diseases or as due to herbicide exposure and/or a service-connected disability, and these claims must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not 
 
required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
 
 L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Yacoub, Associate Counsel