Citation Nr: 1808446 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-04 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for skin disease claimed as multiple actinic keratosis/squamous cell carcinoma status post excision with residuals scars (skin disease). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1954 to March 1956 and January 1962 to July 1973 and his service included service in the Republic of Vietnam from February 1967 to August 1968 and August 1970 to June 1972 with the award of the Combat Infantry Badge. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2014 rating decisions by the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina. Given the evidence added to the record since the last final decision the Board is reopening the claims. See Shade v. Shinseki, 24 Vet. App. 110 (2010). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claim of service connection for skin disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Bilateral hearing loss had its onset during combat service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for bilateral hear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that service connection is warranted for his bilateral hearing loss because, in substance, it was caused by acoustic trauma while serving in combat in the Republic of Vietnam and it has continued to the current time. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In order to establish service connection for the claimed disability there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the law also provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). The record shows the Veteran being diagnosed with bilateral hearing loss. See, e.g., VA examination dated in September 2013. Moreover, the Board finds that the Veteran's award of the Combat Infantry Badge for his service while an Infantry Officer serving in the Republic of Vietnam establishes his standing as a Combat Veteran. Thus, because the Veteran served in combat, the Board finds that he was likely exposed to acoustic trauma while serving in the Republic of Vietnam given that such exposure is consistent with the circumstances, conditions, and/or hardships of that service. 38 U.S.C.A. § 1154(b). As such, VA must presume the occurrence of the in-service injury. See Reeves. In addition the Veteran reports, in substance, that his bilateral hearing loss had its onset during combat service in the Republic of Vietnam. See, e.g., March 2015 statement in support of claim; January 2017 VA Form 9, Appeal to Board of Veterans' Appeals. Moreover, the Board finds that the appellant is both competent to report observing having bilateral hearing loss during and since serving in combat in the Republic of Vietnam and his account of having bilateral hearing loss since that time is credible. See Davidson. Tellingly, a September 1966 service audiological examination even showed the Veteran had hearing loss as defined by VA in the left ear at that time as well as increased thresholds in the right ear. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his bilateral hearing loss became manifest during his combat service. See Reeves. Lastly, the Board finds that the September 2013 VA examiner's opinion that the Veteran's current bilateral hearing loss was due to his military service is further competent and credible evidence that his current hearing loss is due to his military service. See Owens. While the December 2013 VA examiner opined that the Veteran's bilateral hearing loss was not due to his military service, the Board finds that because the hearing loss was caused by an injury during combat, symptoms of hearing loss are observable by a lay person, and the September 2013 VA examiner opined that it was due to his military service, the question of whether this disability started and has continued since service is in equipoise. See Davidson; 38 U.S.C.A. §§ 1154(b); 5107; 38 C.F.R. § 3.102. Therefore, in light of his in-service combat-related acoustic trauma, the credible history of bilateral hearing loss in and since service, and the diagnosis of bilateral hearing loss as well as with granting the Veteran the benefit of any doubt in this matter, the Board finds that service connection for bilateral hearing loss is warranted because the disability had its onset in service. See 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. ORDER Service connection for bilateral hearing loss is granted. REMAND As to the claim of service connection for skin disease, service treatment records document the Veteran's complaints and treatment for a number of skin problems (i.e., dermatofibroma, hyperkeratosis, parakeratosis, acanthosis, boils, and skin abscess), the post-service record also document his complaints and treatment for a number of skin problems (i.e., actinic keratosis and squamous cell carcinoma), the appellant is presumed to have been exposed to herbicides due to his service in the Republic of Vietnam, in May 2014 Dr. Richard S. Lewis opined that the Veteran's in-service sun and Agent Orange exposure may have played a role in his developing skin cancer, and the December 2013 VA examiner failed to provide an adequate etiology opinion because the opinion relied solely on negative evidence (i.e., none of the disease being present while on active duty) and an inaccurate legal presumption (i.e., only the presumptive disorders listed at 38 C.F.R. § 3.309(e) (2017) can be associated with herbicide exposure). Therefore, the Board finds that a remand is needed to provide the Veteran with a VA examination to obtain an adequate medical opinion as to the origins of his current skin diseases other than his already service-connected seborrheic dermatitis. See 38 U.S.C.A. § 5103A(d) (West 2014); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2014). Accordingly, this issue is REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file any outstanding VA treatment records including any post-November 2012 treatment records on file with the Durham VA Medical Center. Because these are Federal records, if they cannot be secured, a written unavailability memorandum must be prepared and added to the claim's folder and the Veteran offered an opportunity to respond. 3. Notify the Veteran that he may submit lay statements from him-self and from other individuals who have first-hand knowledge of any in-service problems with his skin and any continued problems since that time. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an examination to determine the etiology of his skin diseases other than his already service-connected seborrheic dermatitis. The claims folder must be made available to and reviewed by the examiner. After a review of the record on appeal and, if needed, an examination of the Veteran provide answers to the following questions: (i) What are the diagnoses for the Veteran's skin diseases other than his already service-connected seborrheic dermatitis? (ii) As to each diagnosed skin disease other than his already service-connected seborrheic dermatitis but including actinic keratosis and squamous cell carcinoma, is it at least as likely as not that it is related to or had its onset in service including his presumptive exposure to herbicides due to his documented service in the Republic of Vietnam? (iii) As to each diagnosed skin disease is it at least as likely as not that caused by his already service-connected seborrheic dermatitis? (iv) As to each diagnosed skin disease is it at least as likely as not that aggravated (i.e., permanently worsened) by his already service-connected seborrheic dermatitis? The examiner in providing answers to the above questions should consider and discuss, among other things, the Veteran's in-service treatment for seborrheic dermatitis in February 1956, boil/skin abases in July and August 1970, dermatofibroma in June 1973, and hyperkeratosis, parakeratosis, and acanthosis in July 1973. The examiner in providing answers to the above questions should consider and discuss the May 2014 letter from Dr. Lewis and the role, if any, sun exposure as an infantry officer for over 20 years would play in his developing any of his current skin diseases. The examiner in providing answers to the above questions should also consider and discuss Dr. Lewis's May 2014 letter regarding the role, if any, his presumptive Agent Orange exposure may have played in his developing any of his current skin diseases. The examiner in providing answers to the above questions cannot rely on the fact that the Veteran's current skin diseases are not presumptive disorders listed at 38 C.F.R. § 3.309(e) because service connection can still be established on a direct basis under at 38 C.F.R. § 3.303. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Then adjudicate the appeal. If the benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC) that includes notice of all the evidence added to the record since the issuance of the November 2016 statement of the case. The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs