Citation Nr: 19123786 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-58 606 DATE: March 29, 2019 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a skin rash, to include as due to Gulf War chemical exposure is denied. REMANDED Entitlement to service connection for a low back disability, to include degenerative arthritis is remanded. Entitlement to service connection for a functional gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability for VA purposes. 2. Symptoms of tinnitus were not chronic in service, were not continuous since service, and have not been shown to manifest within one year of service. 3. The probative evidence of record does not show a diagnosis of a skin disability manifested by acne or rashes upon which service connection can be granted on a direct or secondary basis, nor does it demonstrate that the Veteran has a chronic skin disability attributable to an undiagnosed illness related to his Persian Gulf War service. CONCLUSIONS OF LAW 1. The criteria for service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for a skin disability manifested by acne and/or rashes have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1989 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303. To establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of the incurrence or aggravation of a disease or injury during service; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more no later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. §3.317(a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. §3.317(a)(2)(i). Such chronic disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Manifestations of an undiagnosed illness may include, among other things, abnormal weight loss. 38 C.F.R. §3.317(b). For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz 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 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 When there is an approximate balance of positive and negative evidence on an issue material to a determination VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. §5107 (2012); 38 C.F.R. §3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran has asserted that he has a hearing loss disability as a result of acoustic trauma sustained in active service while serving in the Middle East. A review of the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was listed as chemical operations specialist. However, he was also in receipt of the M-16 Marksman’s Badge. Therefore, the Board finds that the Veteran was exposed to significant acoustic trauma during active service; thus, the in-service element of the claim has been satisfied. The Veteran’s service treatment records (STRs) contain a February 1989 entrance examination. Audiometric test results at the time of the entrance examination were as follows: Hertz 500 1000 2000 3000 4000 Right 10 5 0 0 0 Left 15 5 0 0 0 In May 1992, the Veteran was afforded a separation examination which failed to show a hearing loss disability. Audiometric test results at separation were as follows: Hertz 500 1000 2000 3000 4000 Right 10 10 0 0 0 Left 10 5 0 0 0 The Veteran stated that he was in good health. Although he checked ear, nose and throat trouble, it appears the Veteran was seen prior to discharge with an ear infection and subsequently with a boil in his external auditory canal which was noted to be resolving as of March 1992. There is no evidence that he reported hearing loss at the time of the visit for the ear infection or the boil. The Veteran was afforded a VA audiology examination in March 2014 in connection with his service connection claim. Audiometric test results at that time were as follows: Hertz 500 1000 2000 3000 4000 Right 0 5 5 10 15 Left -5 10 10 5 10 Speech recognition in the left and right ear was 100 percent. The Veteran did not have audiometric testing results consistent with a diagnosis of hearing loss disability in either ear for VA compensation purposes. See 38 C.F.R. §3.385. At the examination, the Veteran reported serving during the Gulf War for a period of three years as a chemical specialist. He indicated he was exposed to weapons fire but that he was assigned hearing protection. The examiner noted simply that there was no diagnosis upon which to render an opinion. The Board acknowledges that the Veteran may have noticed reduced hearing acuity since service. However, while the Veteran is competent to report symptoms of decreased hearing acuity, he is not competent to diagnose himself with hearing loss for VA purposes. A diagnosis of hearing loss for VA purposes requires medical expertise, clinical testing, and knowledge that are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis in this case. In order for a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There are specific requirements as to what is considered hearing loss for VA compensation purposes, and a review of the Veteran’s audiograms of record fails to show that he has a current hearing loss disability for VA compensation purposes. 38 C.F.R. §3.385. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a hearing loss disability is not warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. As noted, his service treatment records indicate that his military occupational specialty (MOS) was chemical operations specialist, and that he was in receipt of the M-16 Marksman’s Badge. Thus, exposure to acoustic trauma is conceded. Further, after a review of all the evidence, the Board finds that the Veteran currently has tinnitus as he is competent to report that he has ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the evidence shows that symptoms of tinnitus were not chronic in service, were not continuous since service, and did not manifest within one year of service. Service treatment records are silent for complaints of tinnitus during active service. As noted above, although the Veteran reported issues with his ear nose, and throat at separation, he did not report symptoms of tinnitus. Post-service VA treatment records first show complaints of tinnitus in December 2014, more than 20 years after service. At a March 2014 VA examination, the Veteran reported the onset of tinnitus after discharge from service. On that basis, the VA examiner opined that the Veteran’s tinnitus was less likely as not due to service, as tinnitus reportedly occurs at the time of acoustic trauma. Therefore, the weight of the evidence shows that the Veteran’s tinnitus began several years after service and is not related to service. For these reasons, the criteria for presumptive service connection for the “chronic” disease of tinnitus are not met under 38 C.F.R. § 3.303(b) or 38 C.F.R. §3.307. Neither the Veteran nor the representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. For these reasons, the Board finds that a preponderance of the evidence is against all theories of service connection for tinnitus, and the claim must be denied. 3. Entitlement to a skin rash, to include as due to Gulf War chemical exposure The Veteran contends that he has a skin disability which was incurred in or caused by service, to include exposure to chemical agents in Southwest Asia. The Veteran’s STRs contain a February 1989 entrance examination documenting acne on his face. They also contain evidence of one visit in September 1989 while stationed at Ft. Hood, Texas for erythematous, scaly lesions on the Veteran’s right leg, both arms and posterior neck. The assessment was poison ivy and treatment was recommended with Benadryl. As the Veteran was stationed in the continental United States, there was no indication at the time that the condition was due to exposure to any chemical agents during any service in Southwest Asia. The STRs are silent for symptoms, treatment or diagnosis of any other skin disorders during the Veteran’s active service. At the time of his May 1992 separation examination, the Veteran specifically denied any history of any skin diseases. At a May 2014 VA examination, the Veteran reported a recurrent rash that arose after he left the military. He reported that it first developed in 1997 and occurred primarily on the inside of his arms and his abdomen. It was manifested by red, raised and itchy bumps. The Veteran also reported a history of acne on his face but denied a history of eczema or psoriasis. The examination was documented as normal with no evidence of any symptoms that may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multi-symptom illness”. At the time of the examination, there was no documented acne on the Veteran’s face and no rash noted on his forearms. There was no reported evidence of any benign or malignant neoplasms. The examiner noted the diagnosis of dermatitis or eczema in 1989, as well as acne with an onset in February 1989. She then concluded that the Veteran’s claimed disorders were less likely as not related to a specific exposure during the Veteran’s service in Southwest Asia. She explained that acne is due to blockage and inflammation of the pilosebaceous glands and can resolve when treated with appropriate medications. She further explained that the Veteran’s noted diagnosis of rhus dermatitis in his STRs is a type of contact dermatitis due to exposure to the poison ivy plant, also is not chronic and only reoccurs with subsequent exposure to the poison ivy plant. She noted no medical literature to support any association between acne and rhus dermatitis with service in Southwest Asia. The Board acknowledges the Veteran’s contentions that his skin disability, to the extent that he experiences symptoms, was incurred in or caused by service, to include service in Southwest Asia. However, he is not shown to possess medical expertise such that he is competent to opine on medical matters. In this regard, the diagnosis and etiology of skin disorders require medical testing and expertise to determine. Thus, his opinion as to the etiology of his acne and/or rashes is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board also finds the opinion of the VA examiner to be highly probative, as it was offered following a review of the record and interview of the Veteran, and was accompanied by a clear rationale. There is no medical opinion to the contrary. In short, the most probative evidence of record indicates that a disability was not shown in service or for many years thereafter, and that the Veteran’s current skin disability is not related to service. Accordingly, although the Board greatly appreciates the Veteran’s service, the preponderance of the competent evidence is against this claim, and service connection for a skin disability must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability The Veteran asserts that his lumbar spine disability was due to or incurred in service; more specifically, due to lifting heavy equipment. The Veteran’s STRs evidence at least one visit with complaints of low back pain and the Veteran asserted a history of low back pain on separation. The Veteran was denied service connection on a presumptive basis, since his degenerative arthritis did not manifest within the applicable time. However, no opinion on a direct basis was requested or obtained. Given the evidence of record, the Board finds that a new VA examination and opinion are warranted. 2. Entitlement to service connection for a functional gastrointestinal disorder The Veteran filed for service connections for a functional gastrointestinal disorder, to include GERD and/or functional dyspepsia. As noted above, the Veteran has confirmed service in Southwest Asia. The record contains diagnoses of GERD, functional dyspepsia, hiatal hernia, Schatzki’s Ring and esophagitis, with symptoms including dysphagia, nausea and vomiting. Under 38 C.F.R. §3.317 service connection is warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest…to a degree of 10 percent or more not later than not later than December 31, 2021. Given the Veteran’s overlapping diagnoses and multiple symptoms, the Board finds that a new VA examination is warranted to determine the symptoms attributable to the Veteran’s functional dyspepsia as a qualifying chronic disability. The prior opinion of record in November 2014 did not address whether the reported symptoms may be a medically unexplained chronic multisymptom illness. 3. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that his psychiatric disabilities were incurred in active service, to include as a result of seeing deceased civilians and experiencing missile attacks. The Veteran was afforded a VA examination in March 2014. The VA examiner opined that the Veteran did not have a diagnosis of PTSD pursuant to the relevant diagnostic criteria but did meet the criteria for an unspecified anxiety disorder. The claim was denied on the grounds that the Veteran only began taking medication for anxiety 7 or 8 years prior to the examination. The Board finds the examiner did not provider a sufficient rationale and failed to consider continuity of symptomatology . Accordingly, the Board finds that a new opinion is warranted. Relevant ongoing medical records should also be requested. 38 U.S.C. §5103A(c) (2012). The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA spine examination by an appropriate examiner, to determine the nature of his lumbar spine disabilities and to obtain an opinion as to whether such are related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lumbar spine arose during service or is otherwise related to service, to include the documented in-service back complaints. A rationale for all opinions expressed should be provided. 3. Thereafter, schedule the Veteran for VA esophageal and stomach examinations. The claims file should be reviewed by the examiner in conjunction with the examinations. The examiner should complete all indicated diagnostic tests and studies. The examiner is asked to respond to the following: a. Please identify all of the Veteran’s currently diagnosed gastrointestinal disabilities, specifically to include discussion of whether a diagnosis of functional dyspepsia in the November 2014 VA examination is appropriate. b. If yes, please specify the objective indications of the illness, as established by history, physical examination, and diagnostic or laboratory tests, that have either existed for 6 months or more, or exhibited intermittent episodes of improvement and worsening over a 6-month period. c. If no, is it at least as likely as not (a 50 percent or greater probability) that gastrointestinal symptoms described by the Veteran are a manifestation of a different undiagnosed illness, or a medically unexplained chronic multi-symptom illness? d. If the Veteran’s gastrointestinal symptoms can be attributed to a known clinical diagnosis, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed disability was incurred during active service, or is otherwise attributable to active service, to include the Veteran’s reports of frequent heartburn and indigestion. (Continued on the next page)   3. Then send the claims file to obtain an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current mental disorder, including an unspecified anxiety disorder arose during service or is otherwise related to service, to include his service during the Persian Gulf War. A rationale for all opinions expressed should be provided. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis