Citation Nr: 18159573 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-06 892 DATE: December 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED ISSUES Entitlement to service connection for squamous cell carcinoma, claimed as skin cancer, to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for Meniere’s disease is remanded. FINDINGS OF FACT In giving the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for tinnitus. CONCLUSIONS OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to January 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for Tinnitus In cases of tinnitus, ringing in the ears is capable of lay observation, and as such a Veteran is able to ascertain that he has the disability of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). In this case, there is evidence that the Veteran discussed tinnitus with a private physician in January 2008. He underwent private hearing examinations in January 2008, November 2010, and November 2012. In a July 2013 medical opinion 1 Disability Benefits Questionnaire (DBQ), the examiner opined that the Veteran’s reported tinnitus was less likely than not caused by or a result of active service. As the rationale for that opinion, the examiner stated “This veteran has had tinnitus intermittently associated with the dizzy spells and the Meniere’s disease that started in 2007. His 2008 ENT reports states that the tinnitus has stopped with the medical regimen he was on at that time. The intermittent left tinnitus is clearly related to the Meniere’s disease. The examiner also ruled out exposure to military noise as the cause of the Veteran’s tinnitus stating “If the tinnitus were from military service or military noise, it would likely be bilateral, would not go away with Meniere’s treatment, and would have started at the time of service. In addition, any acoustic trauma loud enough to cause tinnitus in the service would have also caused hearing loss, at the hearing was normal at separation. There was just no ear damage seen at separation.” The Veteran was not afforded an in-person examination, and the opinion was generated using a review of the record. Nevertheless, as to noise exposure during service, the Veteran’s DD Form 214 revealed that his military occupational specialty (MOS) was aviation electrician. As such, he would have been exposed to jet engine noise. The private treatment records and hearing examination reports reveal that the Veteran may have hearing loss. The Veteran has consistently reported the onset of tinnitus to have been service related. The VA examiner seemingly gave no weight to these facts. Indeed, in a June 2013 statement in support of claim, the Veteran asserted his tinnitus was related to the acoustic trauma he suffered during active service. He also indicated that the hearing protection, frequently unavailable, was not at the quality that exists today. Given the above, and affording the Veteran the benefit of the doubt on key elements of the claim, the Board finds that the Veteran’s tinnitus was incurred as due to service, and that service connection for such a disability is warranted. See Charles, supra. Accordingly, the appeal as to this issue, is granted. REMAND The Veteran was diagnosed with squamous cell carcinoma on his right ear in March 2011 and on his right leg in November 2011. In the August 2013 VA scars/disfigurement DBQ, the examiner opined that that the Veteran’s squamous cell carcinoma was less likely than not incurred in or caused by the claimed in-service injury. The rationale for this conclusion included a statement that squamous cell carcinoma is not a condition presumed to be related to Agent Orange exposure. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). While this may negate the herbicide agent presumption to service connection, the examiner’s opinion does not address direct service connection. In addition, the examiner goes on to list the risks for squamous cell skin cancer to include, long-term daily sun exposure and chemical exposure. An in-person VA examination is necessary in this instance to clarify whether the Veteran has any skin cancer diagnoses which are etiologically related to service so that not only the nature and symptoms of his skin cancer are clear to the examiner, but also so that the examiner has an opportunity to consider his lay contentions in rendering a nexus opinion. This must be corrected on remand. As to the Meniere’s disease, the Board notes that the private treatment medical records from January 2008 asses the Veteran’s vertigo, opining it “may be a variant of Meniere’s disease or possibly migraine-associated vertigo,” while the November 2010 records seem to confidently identify Meniere’s disease as the diagnosis. A VA opinion was obtained in August 2013 wherein the examiner opined that the Veteran’s tinnitus was related to his Meniere’s disease, which is not service connected. The examiner did not provide an opinion regarding the etiology of the Meniere’s disease. While there may be instances where a VA opinion is adequate to determine a case, this is not one. Rather, the Veteran should be afforded a VA examination so that not only the nature and symptoms of his claimed Meniere’s disease are clear to the examiner, but also so that the examiner has an opportunity to consider his lay contentions in rendering a nexus opinion. This too must be corrected on remand. Accordingly, the matters of squamous cell carcinoma and Meniere’s disease are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s squamous cell skin cancer. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current skin cancer manifested during, is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the Veteran’s medical history and claims file. The examiner should also provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s Meniere’s disease. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that Meniere’s disease manifested during, is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the Veteran’s medical history and claims file. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel