Citation Nr: 18161147 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-60 403 DATE: December 28, 2018 ORDER 1. Service connection for tinnitus is granted. REMANDED 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. 3. Entitlement to service connection for a low back disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for skin cancer is remanded. FINDING OF FACT The Veteran is reasonably shown to have tinnitus that began in service and has persisted since. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C. §§1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1961 to August 1966 and from December 1990 to July 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include tinnitus as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013 Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Service connection for tinnitus is granted. The Veteran’s military occupational specialty (MOS) was motor transport operator. A November 2009 Audiology consultation report notes that the Veteran was seen with complaints of pulsatile tinnitus in the left ear that began within the last year. An August 2014 Audiology consultation report notes that the Veteran reported ongoing unilateral left ear tinnitus. On April 2015 VA examination the Veteran reported onset of bilateral tinnitus (mostly in the left ear) during basic training (while at the rifle range). He reported that it had worsened in the past six years. The examiner opined that it was less likely than not that the Veteran’s tinnitus was related to service. In April 2015 correspondence the Veteran reported having tinnitus since 1966. It is not in dispute that the Veteran has tinnitus. Unlike hearing loss disability, which must be established by specific testing, the presence of tinnitus is established by self-reports of the person experiencing it, and is generally incapable of objective confirmation. Examination reports and treatment records show that he reported experiencing tinnitus. Medical professionals have acknowledged that he has tinnitus, and the Board finds no reason to question such reports. As tinnitus is a disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity. See 38 C.F.R. § 3.303 (b). While the Veteran has been inconsistent in his reports of when his tinnitus began, his November 2009 report that it began in the last year may be explained by his April 2015 VA examination statement that he has had tinnitus since basic training but that “it had worsened in the past 6 years (essentially that in 2009 he was identifying when it became too annoying to tolerate).” Notably, while his accounts of when onset occurred have varied, nothing in the record (such as a denial of tinnitus during the intervening period since service) directly contradicts his more recent reports of continuity (so as to render them not credible). Considering the foregoing, and resolving reasonable doubt in the Veteran’s favor (as required under 38 C.F.R. § 3.102), the Board finds that the overall record reasonably shows continuity of tinnitus since service. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 2. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that he has a bilateral hearing loss disability that is related to service. His military occupation (motor transport operator) exposed him to moderate levels of noise in service. An April 1991 (during service) audiogram notes that the Veteran was routinely exposed to hazardous noise. An August 2014 audiology consultation report notes that the Veteran had normal hearing ranging to mild SNHL from 250-3000 Hz and moderate to moderately severe SNHL from 4000-8000 Hz. Word recognition ability was 96 percent in each ear. Audiometry on April 2015 examination was determined to be inadequate for rating purposes. In April 2016 the Veteran submitted a report of March 2016 audiometry (that did not include a speech discrimination score (Maryland CNC score)) or a medical nexus opinion. The record includes audiometry that suggests the Veteran has a bilateral hearing loss disability, but is not in accordance with 38 C.F.R. § 4.85 (and therefore cannot be accepted as proof of such disability). Additionally, the record does not currently contain a medical nexus opinion concerning any bilateral hearing loss disability. Accordingly, an adequate examination to confirm the Veteran has a hearing loss disability, and if so determine its etiology is necessary. 3. Entitlement to service connection for a low back disability. The Veteran contends that his current low back disability was incurred in service. In April 2015 correspondence he alleged he injured his low back in service jumping down from the cab of a truck. In April 2015 he submitted a December 2014 low back DBQ; the examiner noted diagnoses of DDD, spondylosis, and lumbar spinal stenosis and that the Veteran’s back pain was an ongoing problem since 2012, but did not provide an opinion regarding the etiology of the low back disabilities. On April 2015 VA examination the examiner opined that the Veteran’s lumbosacral strain, DJD/DDD, spina bifida, and spondylosis were less likely than not related to service. However, that opinion in conclusory and therefore is inadequate for rating purposes. The etiology of the Veteran’s low back disability is a medical question for which a medical opinion is required. The two medical reports now on record either do not identify the etiology of the low back disabilities, or provide an opinion that is conclusory. Another medical opinion that considers the Veteran’s report of an injury in service, and identifies the likely etiology of his current low back disabilities is necessary. 4. 5. Entitlement to service connection for right and left knee disabilities. The Veteran contends he has right knee and left knee disabilities that were incurred in service. An August 2002 note indicates he was to avoid running for several months due to right knee osteoarthritis. On April 2015 VA examination he examiner indicated that arthritis was not shown, and opined that it was less likely than not that the Veteran’s bilateral knee strain is related to his service. However, that opinion in conclusory (and inadequate for rating purposes). In September 2015 correspondence the Veteran claimed he injured both knees in service jumping down from the cab of a truck. The etiology of the Veteran’s right and left knee disabilities is a medical question, and requires a medical opinion. The current medical opinion on record is conclusory (without rationale). Another medical opinion that addresses the Veteran’s report of an injury in service, and identifies the likely etiology of his right and left knee disabilities is necessary. 6. Entitlement to service connection for skin cancer. The Veteran contends that he developed skin cancer while stationed in Kuwait and Saudi Arabia. A December 1998 treatment record notes diagnoses of lentigo maligna of the Veteran’s right neck, and benign nevus of the left cheek. In January 1999 he underwent an excision of lentigo maligna on the right neck. On April 2015 Gulf War examination, the examiner opined that the Veteran’s diagnosed skin disabilities had variable etiologies and were not related to Gulf War exposure. On April 2015 skin diseases examination, the diagnoses were actinic keratoses (2007), lentigo maligna (1998), and rosacea (2011). Whether skin diseases diagnosed following service may be related to service/exposures therein (to include in Gulf War service) is a medical question and requires a medical opinion. The opinion by the April 2015 examiner is conclusory and inadequate for rating purposes. Another medical opinion is necessary. The matter is REMANDED for the following: 1. Arrange for an audiological examination of the Veteran (with audiometric studies) to determine whether he has a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either, or both ear(s), and if so, ascertain its etiology. The Veteran’s VA record must be reviewed by the examiner in conjunction with the examination. On review of the record and interview/examination of the Veteran (and acknowledging that the Veteran was exposed to moderate levels of noise in service) the examiner should: (a.) Indicate whether audiometry conducted shows a hearing loss disability in either (or both) ear(s). If satisfactory audiometry cannot be completed explain why that is so (e.g., failure to co-operate or inability to co-operate or inadequate testing process) (b.) Convert the audiometry in the record that is in chart form to numerical values. (c.) Identify the likely etiology of any hearing loss disability found. Specifically, is it at least as likely as not (a 50% or better probability) that it is etiologically related to the Veteran’s active duty service and exposure to noise therein? If not, identify the etiology for the hearing loss considered more likely, and explain why that is so. Include rationale with all opinions. 2. Also arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his claimed low back, and right and left knee disabilities. On review of the record and interview/examination of the Veteran the consulting provider should: (a.) Identify (by diagnosis) each low back, and right and left knee disability found (or shown by the record during the pendency of this claim). (b.) Identify the likely etiology for each low back, and right and left knee disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it was incurred in service (in the manner the Veteran describes)? Include rationale with all opinions. 3. Arrange for a skin diseases examination of the Veteran to ascertain the nature and likely etiology of his claimed skin disabilities. The Veteran’s record must be reviewed by the examiner. The examiner should: (a.) Identify (by diagnosis) each skin disease found (or shown during the pendency of this claim). (b.) Identify the likely etiology for each skin disability diagnosed? Is it at least as likely as not (a 50% or better probability) that it is related to the Veteran’s military service, to include as due to exposures during his Persian Gulf War service? (c.) If a diagnosed skin disorder is determined to be unrelated to the Veteran’s service, identify the etiology for the disorder considered more likely 9and explain why that is so). Include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel