Citation Nr: 1808727	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  11-11 019	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Whether new and material evidence has been presented for the claim of entitlement to service connection for a skin disorder, claimed as chemical sensitivity, due to herbicide exposure.

2. Entitlement to service connection for a skin disorder, claimed as chemical sensitivity, due to herbicide exposure.

3. Entitlement to service connection for hearing loss.

4.  Entitlement to service connection for immune system problems.

5. Entitlement to service connection for environmental allergies.

6.  Entitlement to service connection for hypertension.

7.  Entitlement to service connection for fibromyalgia.

8.  Entitlement to service connection for chronic fatigue syndrome.


WITNESSES AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

I. M. Hitchcock, Associate Counsel 


INTRODUCTION

The Veteran served honorably on active duty with the United States Army from August 1966 to May 1974.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Jurisdiction was later transferred to Montgomery, Alabama.  

The AOJ (agency of original jurisdiction) framed the issue as chemical sensitivity due to Agent Orange exposure (previously rated as residuals of exposure to Agent Orange).  However, the Board finds that the issue is more properly framed as entitlement to service connection for a skin disorder, claimed as chemical sensitivity, due to herbicide exposure (hereinafter referred to as "chemical sensitivity").

In October 2017, the Veteran testified at a hearing in Montgomery, Alabama, before the undersigned Veteran's Law Judge (VLJ).  A transcript of this hearing has been associated with the claims file.  

The issue of service connection for immune system problems, environmental allergies, hypertension, fibromyalgia, and chronic fatigue syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

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) (2012).


FINDINGS OF FACT

1. New and material evidence is not required on the Veteran's claim because relevant service treatment records that existed at the time of the prior denial were not associated with the claims file; therefore, the claim for a skin disorder, claimed as chemical sensitivity, due to herbicide exposure, will be reopened and considered de novo.

2. There is probative evidence that the Veteran's skin disorder, claimed as chemical sensitivity, due to herbicide exposure, had its onset in or is otherwise related to his active service.

3. There is probative evidence that the Veteran's bilateral hearing loss has had a continuity of symptomology since service.


CONCLUSIONS OF LAW

1. The claim of service connection for a skin disorder, claimed as chemical sensitivity, due to herbicide exposure, is reopened and considered de novo. 38 C.F.R. § 3.156 (c) (2017)

2. Service connection for skin disorder, claimed as chemical sensitivity, due to herbicide exposure, is established. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. 
§§ 3.102, 3.303 (2017). 

3. Service connection for bilateral hearing loss is established. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

II. New and Material Evidence Claims

The AOJ determined that new and material evidence had not been received sufficient to reopen the Veteran's previously denied service connection claims for chemical sensitivity. Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen the claims.  That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  

In December 1993, the AOJ issued a rating decision denying the Veteran's claims for chemical sensitivity.  The Veteran did not appeal this decision and he also did not submit any relevant evidence or argument within 1 year of the December 1993 rating decision which would render it non-final for VA adjudication purposes.  38 C.F.R. § 3.156

In August 2007, the Veteran filed a claim for service connection for chemical sensitivity.  The AOJ considered this a claim to reopen the prior denial for chemical sensitivity.  

Normally, a claim may be reopened if new and material evidence is received.  Manio v. Derwinski, 1 Vet. App. 140 (1991).  However, an exception exists: no new and material evidence need be submitted to reopen a case if relevant service department records that existed at the time of the prior denial, but were not associated with the claims file are later included in the claims file.  38 C.F.R. § 3.156 (c).  If such records are later submitted, then the claim will be considered de novo.  

Here, no service treatment records (STR) were submitted for review for the December 1993 rating decision.  The first instance of these records in the file was receipt in July 2014.  Included in those records are notes of rashes on the Veteran's body.  Therefore, the Board finds the STRs to be relevant and will consider the claim on a de novo basis, without regard to finality.

III. Legal Criteria
      
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service personnel records show that the Veteran served in Vietnam and is presumed to have been exposed to herbicides during this time. See 38 C.F.R. § 3.307 (a)(6)(iii). While chemical sensitivity is not a listed presumptive disease under 38 C.F.R. § 3.309 (e), the Veteran is not precluded from otherwise proving entitlement to service connection on a direct basis (i.e., with evidence of a nexus to such presumed herbicide exposure). See Combee v. Brown, 5 Vet. App. 248 (1993).

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as bilateral hearing loss, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R.
§ 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions).  Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

IV. Chemical Sensitivity

The Veteran has asserted that as a result of his exposure to Agent Orange in service, he now has extreme chemical sensitivity.  He has complained that he develops rashes were his face turns red and hot, glands in his neck swell, and other extreme reactions.  He has to keep everything clean in his home, but cannot use standard cleaners.  He has had to relocate to cleaner air to prevent environmental pollutants from affecting his everyday life. 

The Veteran further asserts that when he was in Vietnam, he was exposed to Agent Orange in the hangars and would breathe in a lot of dust.  He was not completely sure when his symptoms started, but he started pursuing treatment in the 1980s.  His first bad breakout was in 1992.  

The first issue for a claim of service connection is whether the Veteran has a current disability. Shedden, supra.  The Veteran filed a claim for service connection for Agent Orange exposure in 1993.  His claim was denied, but minimal records were available for review. 

According to the Veteran's service treatment records, the Veteran complained of a rash in September 1969.  The rash was over his thighs and under his scrotum, with erythematous spots was noted.  The diagnosis was ringworm versus heat rash.  However, on his separation examination, all body systems were within normal limits. 

The Veteran sought treatment for a skin disorder in July 1986.  Lots of "knots" and a rash was noted.  The Veteran complained of a rash in December 1986 on his penis and face, with blisters on his gums.  Testing was negative and a psychological disorder was considered.  However, a week later his tongue was brown and in January 1987, there was a rash all over his body.  

In September 1992, the Veteran was hospitalized for an extreme reaction to chemical sensitivity.  In December 1993, a medical review considered a psychological disorder.  

Of note, many providers have given the opinion that the Veteran's symptoms could be psychological in nature.  However, it appears that these providers have not personally witnessed the Veteran's breakouts, when they occur.  

The record contains many statements from the Veteran's friends, family, and former coworkers about the Veteran's reactions.  The Board finds these statements to be competent and credible. 

Dr. A.B., a private doctor, has provided the diagnosis of chemical sensitivity that manifests in skin reactions.  Therefore, the first element of service connection, whether the Veteran has a current disability, is met. Id.

The second element of service connection is whether there was in-service event.  Id.  The Veteran served in Vietnam and therefore exposure to herbicide agents is presumed. 38 C.F.R. 3.307(a)(6)(iii).  Agent Orange is a dioxin; dioxin is a herbicide agent. Therefore, the second element is met.

The final element of service connection is whether there exists a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden, supra.  The Veteran submitted a letter from Dr. J.M., a private physician who treated the Veteran from 1990 to 2000.  This doctor also served in Vietnam from 1967 to 1968.  The doctor recounted the Veteran's history of symptoms and his wide ranging treatment for those symptoms.  Ultimately, Dr. J.M. gave the following opinion: "From my knowledge of dioxin from review of research articles about the toxic effects of dioxin on animals and humans, and my own personal experience with dioxin exposure in Vietnam, and the subsequent effects on my health, there is no doubt in my mind that [the Veteran] has medical problems related to dioxin."  

The Board gives this opinion great probative weight.  The opinion sufficiently addresses the potential link between any present chemical sensitivity and service.  Further, the opinion contains clear conclusions with supporting data, as well as reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

Based on the foregoing, the Board finds that service connection is warranted for chemical sensitivity.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

V. Bilateral Hearing Loss

The Veteran asserted that he began having hearing issues during service because of a gun that was discharged near his head.  It took three months for his hearing to come back.  He first noticed hearing difficulties when he left service, but did not see anyone until 2006 or 2007.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, 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.  38 C.F.R. § 3.385.

The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159.

The Veteran has a current diagnosis of hearing loss. A review of the record shows that the Veteran had service in Vietnam where combat occurred and firearms were discharged.  As such, his claim of in-service noise exposure is presumed credible and an in-service injury of acoustic trauma is acknowledged.  Therefore, the first and second elements of service connection are satisfied. Shedden, supra. 

The final consideration is the nexus element of service connection. Id.  The Veteran's available service treatment records are negative for hearing loss during service.  Significantly, audiological examination reports conducted at separation note no abnormalities.  On the separation examination, the following audiometric data was obtained. 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
0
N/A
0
LEFT
0
5
0
N/A
0

In his separation report, the Veteran indicated that he did not have hearing loss or hearing issues.  The Veteran filed a claim for service connection for bilateral hearing loss in February 2008.  

In November 2008 and May 2009, the Veteran was afforded a VA audiology examination.  The Veteran reported an in-service history of noise exposure, including helicopters and gun fire.  The Veteran also reported a post-service history of occupational noise exposure.  The Veteran reported that in all instances other than the instance where a gun was fired close to his head he wore hearing protection.    

The November 2008 audiological examination produced slightly more pronounced results.  At this authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
20
50
80
LEFT
10
15
15
50
85

Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  This constitutes a bilateral hearing loss pursuant to 38 C.F.R. § 3.385. 

The May 2009 examiner opined that it is less likely than not that the Veteran's current bilateral hearing loss is caused by or the result of his military service.  In support of this opinion, the examiner noted that the Veteran's separation audiograms indicate normal hearing, bilaterally, and therefore, the military noise exposure had no effect on his hearing loss. 

The Board accords little probative weight to the May 2009 VA examiner's opinion.  The Board notes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  See Hensley supra.  The examiner's opinion rested solely rest on these findings.  Further, it did not consider the Veteran's complaints of continuity of symptomology after service.  

The Board notes that the Veteran has contended on his own behalf that his bilateral hearing loss is related to his military service.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno supra, at 470.  Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316.  However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 

In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's bilateral hearing loss and any instance of his military service, to include his exposure to noise, to be complex in nature. See Woehlaert, supra.  Therefore, while the Veteran is competent to describe his in-service noise exposure and his current audiological problems, he cannot, as a layperson, provide competent medical evidence establishing a connection between his current hearing loss and tinnitus and his in-service noise exposure.  

The Veteran has stated that his bilateral hearing loss has continued since service and has been consistent in his reports.  As such, the Board gives great probative weight to the Veterans lay reports and presumptive service connection, on the basis of continuity of symptomatology, is warranted for bilateral hearing loss. 38 U.S.C. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

Based on the foregoing, the Board finds that service connection is warranted for bilateral hearing loss.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for skin disorder, claimed as chemical sensitivity, due to herbicide exposure, is established. 

Service connection for bilateral hearing loss is established. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Board notes that a rating decision was issued in January 2013 for entitlement for service connection for the following issues: immune system problems, environmental allergies, hypertension, fibromyalgia, and chronic fatigue syndrome.  The Veteran filed a Notice of Disagreement with that rating decision in February 2013.  The United States Court of Appeals for Veterans Claims has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the AOJ to issue a statement of the case is a procedural defect requiring a remand.  See Manlicon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995).  The issues of entitlement to service connection for an immune system problems, environmental allergies, hypertension, fibromyalgia, and chronic fatigue syndrome must be remanded by the Board to allow the AOJ to issue a statement of the case on these claims.

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case addressing entitlement to service connection for an immune system problems, environmental allergies, hypertension, fibromyalgia, and chronic fatigue syndrome.  The Veteran must be advised of the requirements to perfect an appeal with respect to these new issues.  

The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012).




____________________________________________
L. M. BARNARD 
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).

Department of Veterans Affairs