Citation Nr: 18159369 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-16 044 DATE: December 19, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED The issue of entitlement to service connection for a history of abscess (claimed as boils) is remanded. FINDINGS OF FACT 1. There is no probative medical evidence that indicates the Veteran’s bilateral hearing loss disability was incurred in service. 2. There is no probative evidence that indicates the Veteran demonstrates recurrent tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1950 to October 1953. The Veteran’s claim of entitlement to service connection for boils was previously denied in October 1953. Generally, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156 (c) (1). Additional service department records have been associated with the claims file since the final October 1953 rating decision. These service department records show complaints and treatments of boils on the Veteran’s arm and back. Therefore, these service department records are relevant to the Veteran’s claim, and the Board will reconsider the Veteran’s claim without requiring new and material evidence. The issue is remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). The Veterans Court has held that the presumptive diseases include tinnitus, at a minimum where there is evidence of acoustic trauma, as an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus associated with acoustic trauma, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral hearing loss The Veteran was diagnosed with bilateral sensorineural hearing loss at the December 2016 VA medical examination. VA treatment records indicate the Veteran initially complained of difficulty hearing in August 2001. Service treatment records (STRs) reveal no complaints, treatments, or diagnoses pertinent to hearing loss. At service separation in October 1953, the Veteran was examined. His ears and hearing were found to be clinically normal. This examination included internal and external canals and auditory acuity. The report reflects no complaints regarding hearing and ears from the Veteran. Indeed, the Veteran was assigned a physical profile rating of H-1. The H stands for hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. The number 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Veteran contends he experienced acoustic trauma in service because he served in a tank division. He reported exposure to artillery and rifle fire in addition to tank noise during service. The Veteran is credible in his report of experiences of excess noise exposure while serving in a tank division, and the evidence is consistent with the places, types, and circumstances of his service. Therefore, his noise exposure is recognized. See 38 U.S.C. § 1154 (a). At the December 2016 VA medical examination, the Veteran reported difficulty hearing normal conversations. The examiner noted no evidence of hearing loss complaints for more than 40 years since discharge. The examiner opined the Veteran’s bilateral hearing loss disability was less likely incurred in service because there was no documentation from service showing a significant threshold shift in the Veteran’s hearing, and that the Veteran’s hearing loss is consistent with the natural progression of hearing loss for the Veteran’s age. The preponderance of the evidence is against finding service connection for bilateral hearing loss. There is no medical evidence that indicates the Veteran’s bilateral hearing loss disability was incurred in service or diagnosed within the presumptive period after discharge. While the Board has considered the Veteran’s assertions, relating what is apparently remote onset of hearing loss to noise exposure in service requires specialized medical knowledge. Accordingly, the Veteran’s assertions that noise exposure in service caused his hearing loss is not competent evidence. Since the Veteran’s hearing loss disability was not incurred in service, service connection for bilateral hearing loss is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for tinnitus Tinnitus is defined as a ringing in the ears, and it is a disorder that is uniquely identifiable by the senses of the person experiencing it. It is a condition that is “simple” in nature in that respect, and thus, is a disability that can be diagnosed by the person experiencing the condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, the confirmation of the existence of tinnitus does not require any particular medical expertise (i.e. is not “complex” in nature), and assuming the allegations of the Veteran are credible, testimonial evidence of an origin of the condition in service can be used to support a claim for service connection. The Veteran contends his ears ring because of his in-service acoustic trauma. August 2016 VA treatment records indicate the Veteran denied tinnitus at an audiology consult for cerumen buildup. At the December 2016 VA medical examination, the Veteran did not endorse tinnitus. The examiner opined the Veteran did not demonstrate a current diagnosis of tinnitus. The preponderance of the evidence is against finding service connection for tinnitus. There is no medical evidence that indicates the Veteran demonstrates recurrent tinnitus. Indeed, while the Veteran has claimed entitlement to service connection for tinnitus, he has denied tinnitus on examination. In sum, the Board finds that the Veteran does not have tinnitus; and, to the extent he may have symptoms of tinnitus, such is not related to service. In light of these findings, the Board concludes that service connection for tinnitus is not warranted. REASONS FOR REMAND Entitlement to service connection for a history of abscess (claimed as boils) is remanded. STRs indicate the Veteran was diagnosed with a boil and treated with penicillin. He also demonstrated other skin-related pathologies during service. He has not been afforded a VA medical examination because the evidence of record did not indicate treatment for a boil since service. Subsequently received VA treatment records indicate the Veteran was treated for an abscess in July 2012 and in August 2016. Thus, the Board has determined that additional development of the claim is necessary. The matter is REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of any current disability that manifests with recurrent boils or abscesses. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Does the Veteran have a current disability that manifests with recurrent boils and/or abscesses? b) If so, were any of the Veteran’s current diagnoses incurred in service or caused by an in-service injury, event or illness? c) If so, are any of the Veteran’s current diagnoses proximately due to or aggravated (e.g. worsened, and if so, to what degree) by any of the Veteran’s service-connected disabilities? [i.e. eczema, tinea pedis, tinea manus] d) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner’s attention is drawn to the following: * The July 1950 entrance report of medical examination indicated scars on the Veteran’s left forearm, stomach, left shoulder, and right forearm. See “STR,” received September 14, 1954, page 8 of 90. * In October 1950, the Veteran was diagnosed with and treated for boils on his left posterior scalp. In January 1951, he was diagnosed with a boil on his chin. In June 1951 and October 1952, the Veteran was diagnosed with and treated for dermatophytosis. The Veteran was tested for coccidiodes on more than one occasion. In November 1952, the Veteran was diagnosed with and treated for verucca on his left hand and neck. See Id., 90 pages. * The October 1953 separation report of medical examination indicated moderate recurrent left-hand fungus. See Id. at page 84 of 90. * The Veteran was diagnosed with and treated for an abscess on his left buttock in July 2012. See “ CAPRI,” received August 28, 2015, page 12 of 18. * The Veteran was diagnosed with and treated for a perianal abscess in August 2016. See “ CAPRI,” received December 4, 2017, page 231 of 342. * Service connection is in effect for eczema, tinea pedis, and tinea manus. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel