Citation Nr: 21004692 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-33 357 DATE: January 27, 2021 ORDER Entitlement to service connection for a skin rash is denied. Entitlement to service connection for arthritis of the hands is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a skin rash at any time during or approximate to the pendency of the claim. 2. Veteran’s bilateral hand arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin rash are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hand arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. The Board denied the Veteran’s claim for service connection for a skin rash in November 2018. The Veteran appealed the Board’s decision and in an August 2019 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed an July 2019 joint motion for partial remand (JMPR), vacated the Board’s decision to the extent it denied his claim for service connection, and remanded the case for further action consistent with the terms of the JMPR. The Veteran’s claim for service connection was remanded by the Board in September 2020. The Veteran’s remaining claims for service connection and entitlement to a TDIU rating were remanded by the Board in November 2018 and September 2020 for further development. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. See 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for most chronic diseases, including arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  1. Entitlement to service connection for a skin rash is denied. The Veteran states that he has a current skin rash that is related to his active service. For the reasons discussed below, the Board finds that service connection is not warranted. While the Veteran’s service treatments indicate that he was treated for a skin rash on his back during his active service, the Board concludes that he does not have a current diagnosis relating to a skin rash and has not had one at any time during the pendency of the claim or recent to the filing of the claim for service connection. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that a March 2011 VA Primary Care Physician Assistant Note, which provides that the Veteran has a back bump categorized as a “boil or something” to his right shoulder. However, the Veteran’s VA treatment records go on to state that he was assessed with an epidermal cyst, and the Board observes that this treatment note pre-dates the current appeal period by more than one year. Additionally, the Veteran’s VA treatment records demonstrate that he denied the presence of skin rashes in 2018, 2019, and 2020. While the VA May 2013 VA General Medical Examination report states that the Veteran speaks of a rash to his back from 1967 that is currently not active, the examiner indicated that there is no rash to evaluate. The examination report does not show that the Veteran reported experiencing a skin rash since his active service or that he had a current rash. In June 2013, the Veteran submitted a written statement that he received treatment for a rash on his back during his active service, and was prescribed medication for it. He was instructed to use the medication three times per day and that he has the medication bottle. The Veteran enclosed a copy of the label on the bottle with his statement. Related, a VA Form 27-0820, Report of General Information, demonstrates that the Veteran advised that he does not take medication for a skin rash and that he does not believe that the rash that was on his back since the Vietnam war is still present. An October 2020 Skin Diseases Disability Benefits Questionnaire states that the Veteran does not have a current skin condition. The examination report provides that there are no clinical or objective findings to support a skin diagnosis or claimed “rash” on the date of the examination. The Veteran has not utilized skin medications since January 2012, and he has not used any medications since the 1960s for a skin rash. The Veteran reported that he thinks the skin rash is gone and he does not use medication for a rash. An October 2020 medical opinion provides that there are no clinical or objective findings to support a diagnosis of eczema and that the eczema that the Veteran had during his active service was acute, self-limiting, episodic, and resolved with treatment. The Veteran believes that he has a current skin rash that is related to a rash that he had during his active service. However, the Board finds that the Veteran is not competent to make such a determination as it requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”). While the Veteran’s statements would be competent as to the presence of a skin rash, he is not competent to relate the presence of a skin rash from the date of his claim in 2012, approximately forty-five years since his separation from active service, to his active service. In sum, the above evidence does not demonstrate that the Veteran has a current skin rash or had one recent to the filing of the claim. Because the preponderance of the evidence is against the award of service connection for bilateral hand arthritis, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for bilateral hand arthritis is denied. The Veteran believes he developed weak hands as a result of his service in the Republic of Vietnam. See November 1999 VA Form 21-4138, Statement in Support of Claim. For the reasons discussed below, the Board finds that service connection is not warranted. Regarding a current disability, the Board notes that a May 2013 VA General Medical—Pension Disability Benefits Questionnaire demonstrates that he has osteoarthritis of the hands that was diagnosed in 2004. As such, the Board finds that the Veteran meets the requirement of a current disability. Concerning an in-service incurrence, the Veteran’s service treatment records do not show a hand injury or problems, complaints, treatment, or diagnoses relating to his hands. The Veteran’s August 1967 Separation Examination indicates that his upper extremities were evaluated as normal. The August 1967 Report of Medical History does not indicate that the Veteran experienced bone, joint, or other deformity. Further, the Veteran’s claims folder does not contain competent medical evidence relating his bilateral hand arthritis to his active service. To the extent that the Veteran believes his bilateral hand arthritis is related to his active service, the Board finds that he is not competent to offer provide such a finding as it requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno, 6 Vet. App. at 469-71; Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. While the Veteran’s statements would be competent as to his observations of hand symptomatology, such as pain or swelling to the extent these symptoms could be viewed through his senses, he is not competent to relate any post-service bilateral hand arthritis to his active service or any injuries incurred during his active service. An August 2003 VA treatment record states that the Veteran has had hand discomfort for 18 years, which would date back to approximately 1985—around 18 years after his active service. However, as the Veteran’s bilateral hand arthritis was not noted in service or within a year of service separation, and as arthritis of the hands is not shown to have manifested to a compensable degree within a year of service separation, service connection for bilateral hand arthritis as a chronic disease is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis under §3.307. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Because the preponderance of the evidence is against the award of service connection for bilateral hand arthritis, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Pursuant to the Board’s September 2020 remand, the Veteran was provided with an October 2020 Hearing Loss and Tinnitus Disability Benefits Questionnaire and corresponding medical opinion to determine the nature and etiology of his bilateral hearing loss. The examination report demonstrates that the Veteran has bilateral hearing loss. The corresponding October 2020 medical opinion provides that the Veteran reports service in the Army from 1965 to 1967 with a military occupational specialty as a Cannon crewmember, which has a high probability of noise. However, this alone is insufficient to support hearing loss caused by or as a result of an event in the military service. The Veteran’s hearing was found to be within normal limits at enlistment testing in June 1965 and at testing prior to separation in August 1967. The hearing tests did not contain evidence of threshold shifts consistent with auditory damage due to acoustic trauma. There is no evidence in the literature that noise exposure causes delayed onset hearing loss according to the examiner. The medical opinion states that the Veteran’s records indicate a reported history of occupational noise exposure following military service including work in construction for thirty-five to forty years and without the benefit of hearing protection during the first ten to twelve years while operating or being in close proximity to jack hammers and air hammers. The examiner concluded that because the Veteran’s hearing was within normal limits on medical examinations from 1965 to 1967 and there was no evidence of a shift in hearing prior to his separation and his report of occupational noise exposure without the use of hearing protection following his active service, a nexus cannot be established between reported hearing loss and active service. Therefore, the Veteran’s hearing loss is less likely than not caused by or a result of in-service noise exposure. The Board finds October 2020 medical opinion is inadequate. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, another examination is necessary so that a VA examiner may reassess the Veteran’s bilateral hearing loss, taking into consideration the latest research concerning delayed onset hearing loss from Dr. Sharon G. Kujawa because the examiner stated that there is no evidence in the literature that noise exposure causes delayed onset hearing loss. 2. Entitlement to service connection for a bilateral eye disability is remanded. Pursuant to the Board’s November 2018 remand, the Veteran was provided with a November 2019 Eye Conditions Disability Benefits Questionnaire and corresponding medical opinion to determine the nature and etiology of his bilateral eye disabilities. The examination report demonstrates that the Veteran has diagnoses of bilateral primary open-angle glaucoma, moderate stage, bilateral nuclear cataracts, and left eye pterygium. The corresponding November 2019 medical opinion states that none of the Veteran’s diagnosed eye conditions are related to in-service exposure to smoke and/or gas or any other activities performed during his active service. The medical opinion provides that the Veteran’s current bilateral nuclear cataracts are solely age-related and are not due to service exposure to smoke and/or gas or any other service activities. The Veteran’s left eye pterygium is due to sun and wind exposure over his lifetime and is in no way related to a history of exposure to smoke and/or gas during service or any other service activities. The Veteran’s bilateral primary open-angle glaucoma is due to a combination of inheritance risks and family history as well as age and race. The Veteran’s glaucoma is not related to exposure to smoke and/or gas during his time in service or any other activities performed during his time in service. The Board finds that the above medical opinion is inadequate. See Barr, 21 Vet. App. at 312; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”) Essentially, the medical opinion contains bare conclusions attributing the Veteran’s eye disabilities to certain causes without supporting data or a reasoned medical explanation regarding the relationship. Therefore, a new medical opinion must be provided concerning the link between the Veteran’s eye disabilities and his active service, including exposure to smoke and/or gas. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Given that final adjudication of the Veteran’s claims for service connection on remand could result in eligibility for a TDIU rating, or result in additional evidence speaking to the Veteran’s employability, the issue of entitlement to a TDIU rating is inextricably intertwined with the claims for service connection being remanded herein, and the claims should be considered together. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the issue of a TDIU rating must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. After the above development is completed, schedule the Veteran for an examination, or telehealth interview, review of the record, etc. if an in-person examination is not feasible, by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss. The examiner must: (a.) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral hearing loss was caused by his in-service acoustic trauma. If the examiner finds that there must be evidence of hearing loss during service to support such a relationship, the examiner must explain why such evidence is needed. In providing this opinion, the examiner must consider the line of research concerning delayed onset hearing loss conducted by Dr. Sharon G. Kujawa, including the below: • “Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth” by S. Kujawa, M.D., and M. C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. • Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after “temporary” noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. • Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. • Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. The examiner should provide a complete rationale for all opinions expressed. (Continued on the next page)   3. Obtain a new VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran’s eye disabilities, including bilateral primary open-angle glaucoma, moderate stage, bilateral nuclear cataracts, and left eye pterygium, are related to service, including exposure to smoke and/or gas. The examiner should provide a complete rationale for all opinions expressed. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.