Citation Nr: 21004405 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-39 339 DATE: January 27, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for a skin disorder as a result of exposure to herbicide in the Korean demilitarized zone (DMZ) is denied. Entitlement to service connection for an acquired psychiatric disorder to include insomnia and nervous disorder with anxiety and depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that claimed bilateral hearing loss was incurred in or caused during active military service, or shown within one year of separation from service. 2. The preponderance of the evidence is against finding that a skin disorder was incurred in or caused during active military service; or as a result of exposure to herbicides in the Korean DMZ. 3. The preponderance of the evidence is against finding that an acquired psychiatric disorder to include insomnia, nervous disorder with anxiety and depression, began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disorder as a result of exposure to herbicide in the Korean DMZ have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.814(c)(2). 3. The criteria for entitlement to service connection for an acquired psychiatric disorder to include insomnia and nervous disorder with anxiety and depression have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1960 to April 1962. These matters were previously before the Board of Veterans’ Appeals (Board) in May 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. The Veteran has claimed service connection for insomnia, and nervous disorder with anxiety. The Board has expanded the claims to encompass an acquired psychiatric disorder to include insomnia, nervous disorder with anxiety and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In his May 2017 notice of disagreement, the Veteran makes reference to an evaluation of a disability claim concerning a low back condition. Such matter, however, is not currently developed or certified for appellate review and is therefore REFERRED to the RO for appropriate action. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include hearing loss as an organic disease of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for hearing loss). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Entitlement to service connection for hearing loss The Veteran contends he has hearing loss related to an incident in service. Specifically, he states that during a grenade launching training session he fired a grenade that exploded, and the strong recoil hurt his right shoulder and ear and eventually he had hearing loss. (See Veteran’s February 2019 statement). 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. In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that, when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. A medical opinion based solely on the absence of documentation in the record is inadequate, and a medical opinion is inadequate if it does not consider the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran’s March 1960 service induction examination shows whisper voice testing of 15/15. His service treatment records are negative for any complaints, treatment or diagnosis of hearing loss. His January 1962 service separation examination shows audiometer testing with pure tone thresholds, in decibels as follows (using the ASA to ISO conversion): HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 X 25 LEFT 20 10 10 X 10 In August 2016 the Veteran underwent a VA examination for hearing loss. His speech recognition scores were 100 percent for each ear. His pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 30 50 LEFT 10 10 20 25 25 The diagnoses were right ear sensorineural hearing loss in the frequency range of 500 – 4000 Hertz and left ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies. There was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz for either ear. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to exposure to hazardous noise during military service. The rationale for the opinion was that there is no evidence in the Veteran’s record of complaints of hearing loss during active service or within one year after separation from service. The Veteran had normal hearing at all tested frequencies in both ears at the time of the January 1962 separation examination. The Veteran’s hearing loss is more likely the result of a natural aging process, hereditary factors, post-service noise exposure, or a combination of all of those factors. VA outpatient treatment records includes a February 2017 record, among other VA reports, with a computerized problem list indicating the Veteran has bilateral sensorineural hearing loss. VA treatment records do not relate the Veteran’s bilateral sensorineural hearing loss to his active military service. Based on the foregoing, service connection on the basis that bilateral hearing loss was incurred in service is not warranted, nor was bilateral sensorineural hearing loss shown within one year of service separation to warrant service connection on a presumptive basis. Further, the evidence does not show that the Veteran had continuous symptoms of hearing loss since service separation. A hearing loss disability is not shown in any of the Veteran’s treatment records. A hearing loss disability was first noted in a VA hearing loss examination report of August 2016. The absence of any evidence of complaints or treatment for hearing loss for many years after service is probative evidence against the claim. Inasmuch as the weight of the evidence in this instance shows there were no chronic continuous symptoms of hearing loss for many years after service, a nexus of a chronic disease to service by showing continuity of symptomatology is not established. The August 2016 VA hearing examination shows the Veteran had right ear hearing loss for VA purposes; left ear hearing loss for VA purposes is not shown. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting the examination, the examiner opined that the Veteran's bilateral hearing loss was less likely than not related to exposure to hazardous noise during military service. The Board finds the opinion probative because the audiologist reviewed the Veteran's claims file and medical history, cited to accurate factual data, and provided a thorough rationale for the opinion including identifying alternative etiologies. The Veteran has not submitted competent lay or medical evidence that the current hearing loss disability is causally related to service. Because there is no probative evidence to the contrary, the opinion is persuasive. Consideration has been given to the Veteran's assertion that his hearing loss is due to his active service. Lay persons are competent to provide opinions on some medical issues. However, the issue in this case, as to the etiology of his hearing loss, falls outside the realm of common knowledge of a lay person. Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that objective audiometric testing is needed to properly assess and diagnose the disorder. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the claim of entitlement to service connection for the Veteran’s hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a skin disorder as a result of exposure to herbicide in the Korean DMZ The Veteran contends he has a skin disorder related to his active duty service. Specifically, he asserts he received burns to his skin while working with “stove” while in Korea. He stated he received “too many burns” performing duties that were not assigned by his military occupational specialty, and, as a result he continues to suffer from the burns. (See VA Form 9, August 2018). In his April 2016 VA application for compensation, the Veteran noted a skin condition due to Agent Orange in the DMZ in January 1962. The Board acknowledges that service in or near the Korean DMZ is a form of conceding herbicide exposure. In this instance, the Veteran served in the military from March 2, 1960 through April 9, 1962; his service dates are outside of the applicable presumptive period of 38 C.F.R. § 3.814(c)(2). Therefore, this presumptive provision is not for application in this instance, and no further discussion on the matter is required. The Veteran’s service treatment records are negative for complaints, treatment or diagnosis of a skin disorder of any kind. His January 1962 service separation medical examination shows normal skin on clinical evaluation. The first post-service medical notation of a skin disorder was in July 2014. Specifically, a July 2014 VA primary care notes shows the Veteran presented both arms with skin patch lesions, no dryness, icterus or erythema. The assessment was tinea. This July 2014 assessment was rendered more than 50 years after the Veteran’s discharge from service and is probative evidence against his claim. The record is devoid of medical evidence of a skin disorder from discharge from service in 1962 to treatment for a skin patch lesion, assessed as tinea, in 2014. Consequently, service connection on the basis that a skin disorder became manifest in service and persisted is not warranted. Post-service VA medical treatment records show the Veteran with a skin disorder, but none of the reports established an etiological relationship or nexus between the claimed skin disorder and his active service. For example, a February 2015 VA dermatology consult report shows the Veteran presented with complaints of skin lesions on both arms. Examination revealed anterior forearms with erythematous hyperkeratotic scaly macules. The impression was actinic keratosis. A January 2017 VA primary care follow-up note showed areas of depigmentation in forearms of pink coloration. An April 2017 VA dermatology progress note shows the Veteran was seen at a VA medical center with complaints of skin rash and redness of skin. He stated he had actinic keratosis at his forearms by biopsy. The diagnosis was inflamed actinic keratosis at forearms. An April 2018 VA dermatology consent document shows the Veteran consented to treatment for an abnormal growth on his forearms. In an October 2018 VA primary care note, the Veteran was provided an assessment of lichenoid actinic keratosis. In a March 2019 VA primary care note, the Veteran complained of a rash on his forearms area. Moreover, the Veteran has not been afforded a VA examination regarding his claimed skin disorder. The Board finds that a VA examination is not necessary because there is no evidence that the Veteran’s skin disorder occurred in service, and there is no competent evidence that a current skin disorder may be associated with service. There is accordingly no reasonable likelihood that a VA examination would result in favorable findings. In a March 2018 VA social work note, the Veteran reported having traumatic experiences during service, including his arms being affected. It was noted that he showed his arms, and there were areas of affected skin and different colors. In a February 2019 statement in support of his claim, the Veteran noted that he was appointed to be a stove repairman in service, and as he was familiarizing himself with the equipment, he was burned several times with his skin in direct contact with fuel. The Board acknowledges his own assertions that his current skin disorder is related to his active service, but find he is not competent to relate any of his current skin disorders to unverified incidents in service concerning burns on his skin. Other than the Veteran’s unspecified report of having traumatic experiences in service including his arms being affected, treatment records do not reveal any indication that the Veteran’s current skin disorder is related to service, or evidence of an in-service injury. Furthermore, more than 50 years had passed since his separation from service when he first presented (February 2015) with complaints of skin lesions on both arms. While the Veteran believes that his current skin disorder is related to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, and the Veteran does not have the training or credentials to provide a competent opinion as to the etiology of the claimed skin disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the claim of entitlement to service connection for a skin disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for an acquired psychiatric disorder to include insomnia and nervous disorder with anxiety and depression The Veteran contends essentially that he has a psychiatric disorder, manifested by insomnia and nervousness with anxiety and depression caused by his military service; and therefore believes service connection is warranted. Specifically, he states that while in service to avoid being insubordinate he followed the orders of a superior officer and signed a document in another soldier’s behalf. He stated he was under indescribable stress. He expressed that he believed such signing was against regulations, and after he signed the document he was “terribly frustrated and disappointed” and felt he was a coward and had lost his self-esteem. He had no peace of mind and could not sleep at night. He was anxious and depressed and believed the military police were pursuing him. He felt his fiancée did not deserve a man like him. Out of his frustration he decided to break-up with his fiancée and “quit” the military. (See Veteran’s February 2019 translated statement). The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of insomnia, nervousness, anxiety, depression or other psychiatric symptoms. His January 1962 separation medical examination was normal on clinical evaluation for neurologic and psychiatric systems. The earliest post-service report showing the Veteran sought treatment for mental health problems is dated in July 2014. A July 2014 VA primary care interdisciplinary assessment screening note reveals the Veteran was seen at the primary care clinic for an initial evaluation. He reported having feelings of anxiety, depression, and nightmares especially since his return from Korea. He stated he never came for an evaluation at VA. The diagnoses were anxiety and depression. In addition, in a July 2014 VA psychiatric progress note the Veteran was identified as a patient with a medical history of hypertension and hyperlipidemia with no past psychiatric history or past psychiatric hospitalization. He presented at a VA psychiatry intervention center for an evaluation due to anxiety symptoms and sleep disturbances. He reported that for the past week he had symptoms of irritability and trouble sleeping at night that consisted of difficulties in staying asleep and nightmares that awake him in the middle of the night feeling anxious and sometimes aggressive. He did not identify any stressor. The assessment was a Veteran with no past psychiatric history who presents with anxiety symptoms and sleep disturbances for the past week. The diagnostic impression was unspecified anxiety disorder. He was prescribed medication for anxiety and insomnia. Based on the foregoing, the Veteran had no psychiatric history prior to July 2014, which is more than 50 years since his separation from service. This is probative evidence against service connection on the basis that a psychiatric disorder became manifest in service and persisted since. VA treatment records in the Veteran’s claims file shows the Veteran has been variously diagnosed with psychiatric disorders, but do not show any such psychiatric disorder is etiologically related to his active military service. The Veteran has not been afforded a VA examination regarding his claimed psychiatric disorder, and a VA examination is not necessary because there is no probative evidence that the Veteran’s acquired psychiatric disorder occurred in service, and there is no indication that a current psychiatric disorder may be associated with the Veteran’s service. There exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. The Board has considered the Veteran’s statements regarding service incurrence of his claimed psychiatric disorder. His statements are contradicted by the contemporaneous clinical and lay evidence showing that such symptoms were not present for decades after service; therefore, such statements are deemed not credible. See Pond v. West, 12 Vet. App. 341 (1999). Consequently, the Board finds that the Veteran’s statements in regard to the onset of his psychiatric disorder are not probative evidence in support of his claim. Accordingly, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder to include insomnia and nervous disorder with anxiety and depression must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.