Citation Nr: 20030192 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-19 474 DATE: April 29, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus, as due to bilateral hearing loss, is granted. REMANDED Service connection for lower back condition is remanded. Service connection for bilateral knee condition is remanded. Service connection for a skin condition, to include porphyria cutanea tarda as due to exposure to herbicide exposure, is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s current bilateral hearing loss is etiologically related to noise exposure during military service. 2. The Veteran’s tinnitus is proximately due to his bilateral hearing loss. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to January 1972, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The appeal was remanded for additional development in March 2018. The Board will proceed now to decide the appeal. The Veteran seeks service connection for bilateral hearing loss and tinnitus. In most cases, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established on a secondary basis for a current disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Bilateral hearing loss The Board finds that in service the Veteran was exposed to hazardous noise. In May 2013, the Veteran wrote that he had been exposed in service to the sound of mortars, rockets, grenades, helicopters and M60s. At a VA examination in March 2013, the Veteran was found to have a bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Therefore, the first two elements of service connection have been established. The question then is whether the Veteran’s current hearing loss is related to his in-service noise exposure. The evidence in this regard is mixed. Following the VA examination, the examiner opined that the Veteran’s hearing loss was less likely than not caused by, or the result of, an event in military service. The examiner explained that the audiometric test results from the Veteran’s entrance into and separation from service indicate that his hearing acuity had not changed in service. The evidence in support of the claim consists of the Veteran’s testimony at hearing that he had experienced decreased hearing in service and since his discharge. Upon review, the Board finds that the evidence is in relative equipoise. The examiner’s opinion has decreased probative value because instead of addressing noise exposure in service or discussing alternative causes for the Veteran’s bilateral hearing loss, the examiner’s rationale (1) addresses only the lack of in-service loss of hearing acuity; and (2) seems to preclude a veteran from establishing service connection when there was no such loss. The United States Court of Appeals for Veterans Claims (Court) dealt with a similar issue in Hensley v. Brown, 5 Vet. App. 155 (1993). In that case, the Court held that the absence of a qualifying hearing loss at separation does not preclude a veteran from establishing service connection on a direct basis considering all the evidence of record. Given the Veteran’s credible lay history of hearing loss since service, the Board finds that the competent evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss may be related to his active duty service. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for BHL is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). Tinnitus Given the grant of service for hearing loss, the evidence likewise supports a grant of service connection for tinnitus. The March 2013 VA examiner opined that it was at least as likely as not that the Veteran’s tinnitus is associated with his bilateral hearing loss. Service connection for tinnitus is granted on a secondary basis. 38 C.F.R. § 3.310(a). REASONS FOR REMAND Service connection for lower back and bilateral knee disabilities Pursuant to the March 2018 Board remand, the Veteran was afforded a VA examination in September 2018. Upon review, the Board finds that the September 2018 VA examiner did not comply with the instructions on remand that he accept as true the Veteran’s statement that he had parachuted from planes in the service 40+ times. Service connection for a skin condition, to include porphyria cutanea tarda as due to exposure to herbicide exposure The Veteran contends that he has suffered from complications with his skin ever since leaving active duty. However, the earliest medical records in the file indicate that, in June 2008, he told a provider that he had been developing blisters on his hands for the last eight or nine months. Records from the Portland VAMC state that the Veteran was diagnosed with porphyria cutanea tarda (PCT) in May 2013 following a biopsy of his small finger. The Veteran was exposed to herbicides in Vietnam. PCT is a disease for which service connection is presumed if it manifests to a degree of 10 percent or more within a year following the last day on which the veteran was presumed expose to herbicides. 38 C.F.R. § 3.309(e); 3.307(a)(6)(ii). In a March 2014 Statement of the Case, the RO found that the Veteran was not presumptively entitled to service connection for PCT because it had not manifested within one year of his last exposure. Without a medical opinion, the RO also found that direct service connection was not established. The matters are REMANDED for the following action: 1. Schedule a VA orthopedic examination with a different examiner than the individual who conducted the September 2018 examination to determine the nature and etiology of the claimed lower back and bilateral knee disabilities. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The examiner must opine whether it is at least as likely not (50 percent or greater probability) that any lower back or bilateral knee disability had its onset in service or within one year following separation from service or was causally related to service. In formulating the requested opinion, the examiner is advised that the Veteran’s military records reflect that he received the Bronze Star as well as a parachute badge. As such, VA finds credible his testimony that while in service he was part of a helicopter recovery team and was involved in 40+ parachute jumps. Any opinion expressed must be accompanied by a complete rationale. 2. Schedule a VA skin examination with a different examiner than the individual who conducted the September 2018 examination to determine the nature and etiology of the Veteran’s skin condition. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The examiner is alerted that records from the Portland VAMC state that the Veteran was diagnosed with porphyria cutanea tarda (PCT) in May 2013 following a biopsy of his small finger. (Continued on the next page)   The examiner must opine whether it is at least as likely not (50 percent or greater probability) that the diagnosed PCT had its onset in service or within one year following separation from service or was causally related to service. Any opinion expressed must be accompanied by a complete rationale. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pamela F. Mucklow The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.