Citation Nr: 21004301 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-28 925 DATE: January 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a skin condition, claimed as recurring rashes/fungus, is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to acoustic trauma incurred during active duty service. 2. Affording the Veteran the benefit of the doubt, his skin condition, claimed as recurring rashes/fungus, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin condition, claimed as recurring rashes/fungus, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to July 1967 and from May 1968 to September 1969. In September 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Since the RO last considered the claims on appeal, additional evidence, has been added to the Veteran’s claims file. On September 17, 2020, the Board received a waiver of Agency of Original Jurisdiction (AOJ) consideration of this evidence. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as organic diseases of the nervous system to include sensorineural hearing loss, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for bilateral hearing loss The Veteran alleges that he has bilateral hearing loss which is etiologically related to service. 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). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 Initially, the Board notes that the Veteran is diagnosed with bilateral hearing loss for VA purposes. See January 2016 VA audiological examination, September 2020 audiological examination. A review of the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) during active service was supply clerk. The Veteran testified that his job entailed being around helicopters and C-130 aircraft. The Veteran also testified to being exposed to mortar and small rifle fire. Under these circumstances, the Board finds that the reported exposure to hazardous noise is consistent with the facts and circumstances of the Veteran’s active service. Accordingly, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records are silent for complaints of, or treatment for bilateral hearing loss disability while the Veteran was in active service. On VA examination in January 2016, the Veteran was shown to have bilateral sensorineural hearing loss for VA compensation purposes. The examiner opined that the Veteran’s hearing loss was less likely than not related to noise exposure during service, as the Veteran’s STRs at enlistment and discharge showed normal hearing and he had no complaints of hearing loss in active service. The Veteran has submitted another examination, dated September 2020 which also diagnosed the Veteran with bilateral sensorineural hearing loss. Additionally, the examiner opined that it was at least as likely as not that the Veteran’s military occupation specialty and active duty noise exposure increased the Veteran’s likelihood of hearing loss. Moreover, the Board finds that the Veteran is competent to report hearing problems in the ears during service and since that time. Moreover, the Board finds that the Veteran’s reports of noise exposure during his period of service and hearing problems since service, are credible. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board finds that the balance of favorable and unfavorable evidence is at least in equipoise. As such, the Board resolves doubt in favor of the Veteran and finds that the Veteran’s bilateral hearing loss was caused by his in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a skin condition, claimed as recurring rashes/fungus The Veteran alleges that he suffers from a skin condition that is etiologically related to service. More specifically, the Veteran has alleged that his tinea cruris and tinea unguium began in and continued since his time in service. The Board notes that the Veteran has a current diagnosis of bilateral tinea unguium (i.e., a bilateral foot fungus) and tinea cruris. Therefore, the first element of service connection has been met. The Veteran’s service treatment records do not contain any complaints, treatment, or diagnoses of a skin condition. Post-service treatment record that the Veteran has been in receipt of oral medication and topical treatment. The Veteran has submitted treatment notes from his private provider which notes that it was more likely than not that he contracted toenail fungus during his active military service in Vietnam. The Board recognizes that the Veteran was not diagnosed with a skin condition until after his separation from active military service. However, the Veteran has competently and credibly asserted that he began experiencing jock itch and foot fungus symptoms during service which have continued since that time. His statements throughout the record have been consistent, and at no time did the Veteran deny symptoms of a skin condition continuously since his separation from service. Finally, one of the Veteran’s treating physician has opined that it is more likely than not that the Veteran’s symptoms had their onset in service and there is no competent medical opinion to the contrary. (Continued on the next page)   Taken as a whole, the Board finds the evidence to be at least in equipoise and, resolving the benefit of the doubt in the Veteran’s favor, will grant the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.