Citation Nr: 21002483 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-14 749 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for a skin disorder is granted. REMANDED Entitlement to service connection for a bilateral lower extremity disability, claimed as peripheral neuropathy, is remanded. FINDINGS OF FACT 1. The claims of entitlement to service connection for bilateral hearing loss and tinnitus were granted by the Regional Office (RO), in an April 2020 rating decision; therefore, there is no longer a case or issue in controversy. 2. Resolving reasonable doubt in favor of the Veteran, his skin disorder is related to active service. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the issues of entitlement to service connection for bilateral hearing loss and tinnitus because the issues have been rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2019). 2. The criteria for service connection for a skin disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from September 1964 to August 1966. The Veteran earned the Combat Infantry Badge and Vietnam Service Medal, among other awards. These matters come before the Board of Veterans’ Appeals (Board) from June 2011 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the June 2011 rating decision, the RO denied to reopen the Veteran’s claims for entitlement to service connection for lower extremity peripheral neuropathy and a skin disorder. In the September 2015 rating decision, the RO denied to reopen the Veteran’s claim for hearing loss and denied entitlement to service connection for tinnitus. In a November 2017 decision, the Board, in relevant part, reopened the claims for entitlement to service connection for peripheral neuropathy, a skin disorder, and hearing loss, and remanded the issues for further development. The Board notes that in the November 2017 Board remand, the issue of bilateral hearing loss was remanded for additional development. In an April 2020 rating decision, the RO granted service connection for bilateral hearing loss and for tinnitus, thereby favorably resolving the claims for entitlement to service connection in full. The Board’s jurisdiction is predicate upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2019). Because the issues of entitlement to service connection for bilateral hearing loss and tinnitus have been rendered moot, the Board does not have jurisdiction to review the appeal. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2019). The appeals are therefore dismissed. The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). 1. Entitlement to service connection for a skin disorder is granted. The Veteran is seeking service connection for a skin disorder. Specifically, he contends that he has a skin disorder that has persisted since service. Alternatively, the Veteran asserts that his skin condition is related to his conceded inservice herbicide exposure. See February 2011 Statement in Support of Claim. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. Service connection may also be granted on a presumptive basis for chronic disabilities, if such is shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, as an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). For a showing of continuity of symptomatology, however, the showing must still be made during the period of service or within one year after separation from service. Id. In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for a skin disorder. Regarding the first two elements of service connection, the Veteran has been assessed with a skin disorder. See January 2020 VA Examination; February 2011 Private Medical Opinion; November 2009 VA General Medical Examination. Additionally, the Veteran’s service treatment records (STRs) show treatment for and diagnosis of mild tinea cruris prior to separation from service. See February 1966 STR. As the Veteran has a current skin disorder and was treated for a skin disorder during service, the first and second elements of service connection have been met. The salient question is thus whether the Veteran’s current skin disorder(s) is related to service. Turning to the evidence of record, post service VA treatment records show tinea skin discoloration in March 2002 and icterus adequate turgor and round white patches on back and chest in November 2006. In addition, VA treatment records from December 2009 show medications for fungi infection and treatment records from April 2016 show medication for skin care to perianal area. In a February 2011 private medical treatment record, the Veteran’s physician noted the Veteran’s military service in Vietnam and that the Veteran presented with skin rashes, pustules, itchy sensation, and suppuration at foot, inguinal area, and back. She noted that these symptoms began in during service in Vietnam as a result of continuous use of his boots, his feet being wet, and his clothes being humid for days. She explained that these conditions create conditions for fugus growth, and that the Veteran has not had any improvement since service, despite continuously using topical medications. She opined that it is more probable than not that the Veteran’s skin problems are related to his service in Vietnam. The record additionally reveals a June 2011 VA opinion. Following a review of the Veteran’s record, an examiner opined that the Veteran’s symptoms, to include skin rash, pustules, and suppuration of the foot, inguinal area, and back are not related to his service medical record. He explained that the Veteran was found to have tinea versicolor and neurodermatitis in November 2009. Neither of these conditions are associated with skin rash, pustules, and suppuration of the foot, inguinal area, and back. In addition, as there is no evidence of treatment for such in the Veteran’s medical history, therefore, his current skin conditions are not related to his service treatment records. In January 2020, the Veteran was afforded a VA examination and diagnosed with tinea versicolor. The Veteran had multiple hypo pigmented macules on the neck, chest, and back, which were described as very itchy and nonresponsive to his daily topical cream applications. The examiner opined that given the lack of medical records during service and that tinea versicolor is not presumptively related to herbicide exposure, the Veteran’s skin condition is less likely than not due to agent orange exposure. The Board finds the June 2011 and January 2020 VA opinions of record inadequate for adjudicative purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Regarding the June 2011 VA opinion, it is not based on an examination of the Veteran, the examiner relied on a lack of treatment records following service to conclude that there was no chronicity of symptomatology, and the examiner failed to address the Veteran’s inservice diagnosis of a skin disorder and a February 2011 private medical record noting continuity of symptomology since service. Concerning the January 2020 VA opinion, the examiner provides only an opinion regarding service connection due to herbicide exposure and fails to provide an opinion regarding direct service connection. Furthermore, the examiner fails to address the relation of or lack thereof the Veteran’s current skin disorders to Veteran’s inservice diagnosis of tinea cruris or the continuity of symptomology noted in the February 2011 private treatment record and VA treatment records (i.e., itchiness). Accordingly, the Board affords the VA opinions of record little, if any, probative value Contrastingly, the Board finds the positive private medical opinion adequate for adjudicative purposes. The physician relied on the Veteran’s medical history, lay assertions, and military service. It is also supported by the Veteran’s STRs and there is no direct service connection nexus opinion to the contrary. As such, the Board affords this opinion probative value. Given the above, the probative evidence of record is, at the very least, in relative equipoise as to whether the Veteran’s skin disorder is etiologically related to active duty service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s skin disorder is related to service. Thus, the third element of service connection has been met. As the Veteran has a skin disorder, experienced a skin disorder during service, and the evidence of record contains a positive nexus opinion and evidence of continuous symptoms since service, the three elements of service connection have been met. The Board therefore finds that the Veteran’s chronic skin disorder was incurred in service and the claim of entitlement to service connection for a skin disorder is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral lower extremity disability, claimed as peripheral neuropathy, is remanded. The Veteran is seeking service connection for lower extremity peripheral neuropathy. Specifically, he contends that his lower extremity pain is due to service. Alternatively, the Veteran asserts that his disability is related to conceded herbicide exposure. As noted above, in a November 2017 decision, the Board remanded this issue for additional development. Unfortunately, as discussed below, the Board’s directives have not been substantially completed, and a remand is required.  Stegall v. West, 11 Vet. App. 268 (1998).  Specifically, in the November 2017 decision, the Board noted that in a February 2011 private medical opinion, the Veteran’s physician opined that the Veteran’s neuropathy of his lower extremities was likely a result of his agent orange exposure. The Veteran’s VA treatment records similarly noted a diagnosis of peripheral neuropathy. See December 2018 VA Treatment Records; March 2008 VA Treatment Records. A prior VA spine examination, however, noted that the Veteran experiences radiculopathy related to lumbar pain. The RO was instructed to obtain a VA examination and medical opinion regarding the nature and etiology of the Veteran’s bilateral lower extremity disability. Pursuant to the remand directives, in January 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with bilateral lower extremity radiculopathy. The examiner noted that the condition onset in 1966 and that the Veteran had complained of progressive leg paresthesia and burning sensation and tingling in feet. The examiner opined that the Veteran’s peripheral neuropathy is less likely than not related to service. He explained that a review of the medical records failed to show an assessment of peripheral neuropathy during service and that there is a record linking the Veteran’s condition to his nonservice connected low back pain. The examiner additionally opined that the Veteran’s disability is less likely than not related to herbicide exposure. The Board finds the VA opinion of record to be inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the examiner fails to provide a rationale for his conclusory statement that the Veteran’s disability is less likely than not related to conceded herbicide exposure. Furthermore, the examiner’s direct service connection opinion is internally inconsistent because he fails to reconcile his opinion that the Veteran’s condition is not related to service with his finding that the condition onset in 1966. Based on the foregoing, a remand is warranted for a new VA examination and medical opinion. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule an examination with an appropriate VA examiner to determine the nature and etiology of the Veteran’s bilateral lower extremity disability, to include peripheral neuropathy and/or radiculopathy. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The VA examiner/clinician should address the following: (A) Identify any lower extremity disability diagnosed during the pendency of the appeal, to include peripheral neuropathy and/or radiculopathy (i.e., as of March 2011). In doing so, the examiner should address the February 2011 private treatment record noting symptoms of burning sensations, sudden sharp pain down legs, numbness, weakness, and pain in lower extremities. (B) Determine whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has a lower extremity disability that began during or is due to military service. In doing so, the examiner should specifically address the Veteran’s inservice foot tenderness and left thigh pain, see June 1965 STR; April 1966 STR, and February 2011 private treatment record. (C) Determine whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has a lower extremity disability that is related to conceded herbicide exposure. In doing so, the examiner should specifically address the Veteran’s inservice foot tenderness and left thigh pain, see June 1965 STR; April 1966 STR, and February 2011 private treatment record. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate Counsel 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.