Citation Nr: 21061582 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-32 807 DATE: October 4, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a left leg fracture is denied. Service connection for a skin condition, to include acrochordon, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 2. The weight of the evidence is against finding that the Veteran's tinnitus began during active service, or is otherwise related to an in-service injury or disease. 3. The weight of the evidence of record is against finding that the Veteran has had residuals of a left leg fracture or any related disability at any time during or approximate to the pendency of the claim. 4. The weight of the evidence is against finding that the Veteran's skin condition, to include acrochordon, began during active service, or is otherwise related to an in-service injury or disease, to include his presumed exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of a left leg fracture are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a skin condition, to include acrochordon, are not met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to December 1970, to include service in the Republic of Vietnam from April 1970 to September 1970. He was awarded the Combat Infantry Badge. This matter was most recently before the Board in March 2019, where the Board remanded these matters for further development, to include new VA examinations. The Board is satisfied that there has been at least substantial compliance with the remand directives. Of note, the Veteran's claim for service connection for a heart condition, to include ischemic heart disease, was granted in a July 2020 rating decision. This is considered a full grant of the appeal and the matter will not be addressed in this decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R.§ 3.303. 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, resulted from noise exposure that he experienced during military service. Service personnel records show that the Veteran's Military Occupational Specialty (MOS) was Infantryman. As a result, military noise exposure is conceded. However, military noise exposure alone is not considered to be a disability; rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran had in-service audiological evaluations at entrance in December 1969 and at separation in November 1970 where auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The audiometric testing at enlistment showed the following results (with ISO-ANSI conversion in parentheses): Hertz 500 1000 2000 3000 4000 Right 0 (15) 0 (10) 0 (10) - 0 (5) Left 0 (15) 0 (10) 0 (10) - 0 (5) The audiometric testing at separation showed the following results (with ISO-ANSI conversion in parentheses): Hertz 500 1000 2000 3000 4000 6000 Right 0 (15) 5 (15) 10 (20) 5 (15) 5 (10) 15 (25) Left 5 (20) 5 (15) 10 (20) 0 (10) 0 (5) 20 (30) The Veteran's Report of Medical History at separation was negative for hearing loss and ringing in the ears. The Veteran reported other conditions such as mumps, back trouble, and foot trouble. The Veteran was afforded a VA examination in June 2015, where he was diagnosed with bilateral sensorineural hearing loss (in the frequency range of 500-4000 Hz) and bilateral sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies). Audiometric findings were as follows: Hertz 1000 2000 3000 4000 Avg. Maryland CNC Right 10 25 30 30 24 100% Left 5 25 45 40 29 100% At the time of the examination, only the Veteran's left ear was considered disabling under the VA criteria. The examiner opined, that the Veteran's hearing loss in his left ear was less likely as not (less than 50/50 probability) caused by or a result of military noise exposure because the Veteran had normal hearing at entrance and separation and the examiner found no significant threshold shifts having occurred during active duty service. The Veteran was afforded an additional VA examination in January 2020 where the prior diagnoses were confirmed. The Veteran reported that in addition to his military noise exposure, the Veteran had more than 15 years of civilian noise exposure due to his work in aviation manufacturing and work in a machine shop. Audiometric findings were as follows: Hertz 1000 2000 3000 4000 Avg. Maryland CNC Right 5 35 50 50 35 98% Left 0 35 55 70 40 94% The examiner opined that the Veteran's bilateral hearing loss is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The examiner observed that there were the Veteran had normal hearing sensitivity at both the entrance and separation exams with no significant threshold shifts. No records of hearing loss within a year of discharge were noted. As a result, the examiner found that there was no evidence the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. Additionally, the examiner noted that the Veteran reported hearing loss beginning in the mid-1970s at his 2015 examination and "about ten years ago" at the January 2020 examination. The Board finds that the January 2020 VA opinion was issued after the examiner reviewed the whole claim file, including the Veteran's lay statements. The opinion is consistent with the evidence of record and has not been contradicted or undermined by another medical opinion. As such, it is afforded great probative value. Veteran's representative argued that his bilateral hearing loss was the result of repeated exposure to daily military noise while performing his normal duties as a rifleman. See Appellate Brief, January 30, 2019. While the Veteran and his representative contend that his hearing loss is related to military service, to include noise exposure, he did not report any issues with hearing at separation. The Veteran reported at the 2015 VA examination that his hearing loss began in the mid-1970s, several years after discharge. At the most recent VA examination, the Veteran reported that his hearing issues began approximately 10 years ago, which would be in 2010, 40 years after discharge. The Veteran has not supplied any medical opinion linking his hearing loss to his military noise exposure. Given the inconsistent reports of the onset of the Veteran's hearing loss, in conjunction with the competent medical evidence from the VA examiners, the Board finds that the weight of the evidence is against the finding that the Veteran's hearing loss occurred during or was diagnosed within a year of service or was a result of military noise exposure. Therefore, service connection for bilateral hearing loss is denied. 2. Tinnitus The Veteran seeks service connection for tinnitus. Service treatment records are silent as to complaints for tinnitus. The Veteran's Report of Medical History at separation was negative for ringing ears. The Veteran reported other conditions such as mumps, back trouble, and foot trouble. At a June 2015 VA examination, the Veteran reported that his tinnitus began around 1979 or 1980. The examiner opined that the Veteran's tinnitus was less likely than not related to his military noise exposure. The examiner reviewed the Veteran's medical records and STRs and did not find complaints or treatment for tinnitus. The Veteran reported the onset of tinnitus occurred in 1979, which was 9 years after his discharge from the service. The examiner noted that it is widely accepted that noise-induced tinnitus occurs at the time of the noise exposure, and does not develop years later. Citing the Institute of Medicine (2006), the examiner noted that "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." In January 2020, the Veteran underwent an additional VA examination for hearing loss and tinnitus. The Veteran reported recurrent tinnitus with an onset in the late 1970s. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner indicated, as the prior examiner did, that there are no complaints of tinnitus in the Veteran's service treatment records and that it is widely accepted that tinnitus does not develop years later. The Veteran reported the onset of tinnitus occurred in 1979, which was 9 years after his discharge from the service. The examiner notes that there are many possible causes for tinnitus beyond noise exposure including head injury, brain tumors, middle ear diseases, & certain medications. Based on the time of onset and medical evidence on the auditory system, the examiner opined that it is more likely that tinnitus in this case is related to civilian noise exposure incurred after military service, the other known etiologies as mentioned above, or possibly even age-related changes to the auditory system. The Board finds that the VA opinions of record were issued after the examiners reviewed the whole claim file, including the Veteran's lay statements. The opinion is consistent with the evidence of record and has not been contradicted or undermined by another medical opinion. As such, it is afforded great probative value. Tinnitus is a subjective complaint and there are no objective measures to verify the presence or absence of tinnitus. As such, the Veteran's statements are also given great probative value. In this case, the Veteran reports that his tinnitus began approximately nine years after discharge from the military. Accordingly, service connection for tinnitus is denied. Conclusion While the Veteran is competent to describe his hearing symptoms, he is not competent to establish the existence of a hearing loss disability as defined by 38 C.F.R. § 3.385 in service or to formulate a competent medical opinion linking delayed onset hearing loss or tinnitus to active service, including noise exposure. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Also, to the extent that the Veteran suggests the onset and ongoing symptoms of hearing loss and tinnitus since service, the Board finds this is not credible in view of his STRs and post-service medical examinations, as discussed above. Therefore, the Board finds that the Veteran's opinion has no probative value in this matter. He has not identified nor provided a favorable medical opinion to weigh in these matters. The Board additionally finds the VA medical opinions highly probative. The VA medical opinions on the Veteran's hearing loss and tinnitus were prepared by a medical examiner with general knowledge, skill, and expertise in common disorders of the bodily systems, to include the auditory system. The VA medical opinions on the Veteran's hearing loss and tinnitus reflects a review of the claims file and the reports cite to specific information in the claims file. Moreover, the examiners' opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 2008) The examiners also cited and discussed other factors that were more likely to have caused his hearing loss and tinnitus. For instance, the January 2020 examiner, in forming her conclusion, cited to the Veteran's civilian noise exposure incurred after military service, the other known etiologies as mentioned above, or possibly even age-related changes to the auditory system. 3. Left Leg Fracture The Veteran seeks service connection for a left leg fracture. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for a left leg fracture. On the Veteran's separation physical, the examiner noted that there was a scar on the Veteran's left knee. On the Veteran's separation Report of Medical History, he indicated that he did not have a history of broken bones, while reporting other conditions. VA treatment records show that the Veteran has been treated for left knee pain. The current diagnosis, according to a December 2016 VA treatment record is osteoarthritis and small effusion. The Veteran has not indicated that he is seeking service connection for this knee pain nor has he provided any information or evidence supporting that he fractured his leg during military service. A review of VA medical treatment records did not find evidence that there are any residuals or evidence of a prior leg fracture. In addition, the Veteran does not claim, nor do his medical records show, that he experiences any functional impairment due to his left leg. As such, Saunders is not applicable with respect to this claimThe Board concludes that the Veteran does not have a current a current disability relating to residuals from a left leg fracture and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, service connection for residuals of a left leg fracture is denied. 4. Skin Condition The Veteran is seeking service connection for a skin disorder, to include acrochordon, which he contends was the result of his Agent Orange exposure in Vietnam. Alternatively, he asserts that this condition related to an ointment used in Vietnam. In addition to the methods listed above, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309(e). At the outset, the Board recognizes the Veteran's honorable service in the Republic of Vietnam from April 1970 to September 1970. As a result of this service, he is presumed to have been exposed to herbicide agents, such as Agent Orange, in service. See 38 C.F.R. § 3.307 (a)(6). As discussed below, the Veteran's skin disorder is not a disease listed under 38 C.F.R. § 3.309(e), as such, service connection cannot be established on a presumptive bases, meaning that the appellant must proffer direct evidence of how the Veteran's skin condition was the result of his military service, to include any herbicide exposure therein. Thus, the preponderance of the evidence of record is against the claim for a skin disability as due to herbicide exposure on a presumptive service connection theory of entitlement. The Board also finds that the preponderance of the evidence is against service connection for a skin disability on a direct service connection theory because the evidence is against a finding that the Veteran's skin disability occurred during or was otherwise caused by his active service, to include his presumed exposure to herbicides. The Veteran's service treatment records (STRs) specifically his Report of Medical History at separation, indicates that he had a fungal infection in Vietnam as well as suffered from athlete's foot at separation. No other STRs are available showing treatment for any skin conditions. In July 2015, the Veteran was afforded a VA examination where he was diagnosed with acrochordon (skin tags). The examiner noted that these were present under his arms. The Veteran indicated belief that this condition is related to an ointment that he used in Vietnam. The examiner opined that this skin condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness because skin tags are common benign small growths of skin that are mostly likely caused by obesity and aging. In February 2020, the Veteran was afforded another VA examination where the diagnosis of acrochordon was confirmed. The examiner specifically indicated that the Veteran did not have a diagnosis of chloracne. The examiner opined that the Veteran's skin condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness because the more likely etiology of the Veteran's skin tags was obesity and aging. The examiner noted that there is no medical evidence that skin tags can be caused by Agent Orange Exposure, athletes' foot or any medication used to treat athletes' foot, nor any ointment used in underarms. VA treatment records show that in September 2014 the Veteran did not have any rashes, dry skin, skin lesions, acne, hives, itching, or history of skin cancer. An August 2015 treatment note indicates that the Veteran's skin was negative for acute lesions or rashes. A March 2016 treatment note reported dryness on both hands and thin and dry skin on the upper extremities. The Board finds that the preponderance of the evidence is against service connection for a skin disability on a direct service connection theory because the evidence is against a finding that the Veteran's skin disability occurred during or was otherwise caused by his active service, to include his presumed exposure to herbicides. The Veteran's first diagnosis of acrochordon was in July 2015 at the VA examination he underwent for this claim. This is 45 years after his discharge from service. Both VA examiners opined that the Veteran's skin condition was less likely than not related to his active service, including exposure to herbicide agents, and indicated that the more likely etiology was aging and obesity. In a January 2019 Appellate Brief, the Veteran's representative indicated that the Veteran should be granted service connection for a skin condition because chloracne is linked to exposure to herbicide agents. While the Veteran was diagnosed with acrochordon, the records do not show that he was ever diagnosed or treated for chloracne. As noted above, a February 2020 VA examiner specifically opined that the Veteran did not have a diagnosis of chloracne. Accordingly, service connection for a skin condition, to include as due to Agent Orange exposure is denied. Carole R. Kammel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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. Attorney for the Board Jennifer M. Narvaez, 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.