Citation Nr: A21016887 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 190605-17095 DATE: October 19, 2021 ORDER Service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. REMANDED Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos and herbicide agents, is remanded. Entitlement to service connection for a skin disorder, to include as due to exposure to asbestos and herbicide agents, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his tinnitus is proximately due to his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to January 1969. By way of background, a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office denied service connection for tinnitus and skin cancer. That same month, the Veteran entered a notice of disagreement with the denial. However, he withdrew the appeal in January 2016 and requested reconsideration of the service connection claims, in addition to the submission of an initial service connection claim for a respiratory disorder. A rating decision issued in June 2016 reopened the service connection claims for tinnitus and skin cancer but denied all of the claims on the merits. In September 2016, the Veteran submitted a timely notice of disagreement with the denial. Nevertheless, in December 2018, the Veteran elected to withdraw his appeal and opt into RAMP, the Rapid Appeals Modernization Program, which was a test program for the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In such election, he selected the Higher-Level Review lane and, thereafter, a February 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form and denied the service connection claims on the merits. In June 2019, the Veteran appealed the February 2019 rating decision to the Board and requested a hearing with a Veterans Law Judge. The Veteran testified at a Board hearing before the undersigned in March 2018. The case is being rendered under the Board's One-Touch Initiative. The Veteran asserts that his tinnitus is related to in-service exposure to acoustic trauma. Alternatively, he contends such disability is secondary to his service-connected bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). In the February 2019 rating decision, the Agency of Original Jurisdiction (AOJ) made favorable findings of a diagnosis of tinnitus and the probability of in-service exposure to acoustic trauma. Notably, the Board is bound by the AOJ's favorable findings under the AMA. In July 2015, the Veteran underwent VA examination in connection with his claim. In pertinent part, the VA examiner reported being unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation given the Veteran's reports that his tinnitus first occurred a few years prior. However, the VA examiner went on to opine that the Veteran's tinnitus was less likely than not associated with hearing loss for the same reason the date of reported onset. Notably, the VA examiner failed to provide an opinion as to whether the Veteran's tinnitus was aggravated by his service-connected bilateral hearing loss and did not clearly address the theory of entitlement to service connection on a direct basis in light of the Veteran's conceded in-service exposure to acoustic trauma. Furthermore, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders, including sensorineural hearing loss. See TheMERCKManual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; TheMERCKManual, Section 7, Ch. 85, Inner Ear. In view of the totality of the evidence, including the VA's acknowledgment of the Veteran's in-service noise exposure, the current finding of tinnitus, the award of service connection for bilateral hearing loss, and the provision from TheMERCKmanual, the Board finds that service connection for tinnitus is warranted as secondary to service-connected bilateral hearing loss. See 38 C.F.R. § 3.310. REASONS FOR REMAND Respecting the respiratory claim, in the February 2019 rating decision, the AOJ favorably found the Veteran had verified service in the Republic of Vietnam, thereby presuming his exposure to herbicide agents. In addition, based on his military occupational specialty of builder, the AOJ conceded the probability of exposure to asbestos in service. In May 2016, the Veteran underwent VA examination in connection with his claim. Following a review of the record, the VA examiner found the Veteran did not have, nor had he ever been diagnosed with, a respiratory condition. In doing so, the VA examiner noted a January 2016 chest X-ray examination report revealed "mild pulmonary hyperinflation may indicate COPD." However, pulmonary function testing conducted that same month demonstrated normal results. Notably, the VA examiner failed to provide further clarification. Instead, the VA examiner reported that the idiopathological lung hyperinflation was without pathology given the highly normal PFT results that did not require post testing or DLCO. In addition, the VA examiner provided an unfavorable opinion that the claimed condition was less likely than not related to active service or any in-service exposure to asbestos. As rationale, the VA examiner cited to the above findings as well as the absence of in-service evidence pertaining to a respiratory condition. Given the aforementioned conflicting evidence, and the VA examiner's failure to provide further clarification regarding the etiology of the Veteran's reported two-year history of symptoms that involved becoming winded and experiencing a tight sensation in his chest with routine activities, the Board finds the May 2016 VA examiner's opinion insufficient for the purpose of determining entitlement to service connection. Thus, an addendum opinion is required to correct the pre-decisional duty-to-assist error and to determine whether the Veteran has a current respiratory disorder related to his military service, to include his conceded exposure to asbestos and herbicide agents. Regarding the skin claim, in the February 2019 rating decision, the AOJ favorably found that private treatment records demonstrated current diagnoses of actinic keratosis and squamous cell carcinoma. In addition, the AOJ verified the Veteran's service in the Republic of Vietnam, thereby acknowledging his exposure to herbicide agents. Furthermore, the Board notes the Veteran's assertion that he has a current skin disorder related to sun exposure, the latter of which is consistent with his military occupational specialty of builder. In support of his claim, the Veteran submitted two favorable opinions provided by private clinicians. In an August 2015 letter, L.B. opined that the Veteran's recent history of squamous cell carcinoma of the face was as likely as not secondary to his exposure to Agent Orange during his participation in the Vietnam War. Notably, L.B. added, "I cannot confidently and absolutely say that these skin cancers are caused by the exposure, but neither can I absolutely rule out the exposure as a causative factor." Similarly, following a review of the Veteran's medical records and an in-person examination, K.S. opined, "There are several issues that I consider to be related to his military service." K.S. reported that the Veteran presented actinic skin damage from prolonged exposure to the sun and a shrapnel location in his left arm. According to K.S., the Veteran had undergone the removal of multiple squamous cell carcinomas and actinic keratosis believed to be a direct result of exposure to Agent Orange. Here, the Board finds the aforementioned private opinions present mere conclusory statements not supported by sufficient rationale. In this regard, VA regulations and the United States Court of Appeals for Veterans Claims provide that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. 38 C.F.R. § 3.102; Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). Nevertheless, in light of the favorable findings described above, the Board finds the failure to provide the Veteran a VA examination in connection with his claim constitutes a pre-decisional duty-to-assist error. Consequently, a remand is warranted in order to afford the Veteran a VA examination to correct such error and to determine the nature and etiology of the Veteran's current skin disorders. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate respiratory specialist who has not previously participated in this case in order to determine the nature and etiology of the Veteran's claimed respiratory disorder. The claims file, including this Remand, should be made available to and must be reviewed by the examiner. After a review of the record and examination of the Veteran, the examiner should address the following: (A) Identify all current respiratory disorders that have been present at any point pertinent to the Veteran's January 2016 claim, even if such is asymptomatic or has since resolved. In this regard, the clinician is asked to clarify the test results dated in January 2016, as discussed in the May 2016 VA examination report, as well as address the Veteran's reported two-year history of symptoms. If no respiratory disorder is diagnosed, the examiner should offer an opinion as to whether the Veteran's symptomatology results in functional impairment of earning capacity. If so, the examiner is advised to accept that the Veteran has a disability for the purpose of rendering the opinion requested below. (B) For each respiratory disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include as due to his conceded exposure to asbestos and herbicide agents. A rationale should be offered for any opinion provided. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his current skin disorders. Following a review of the record and any necessary testing, the examiner should address the following inquiries: (A) Identify all current skin disorders that have been present at any point pertinent to the Veteran's March 2015 claim, even if such is asymptomatic or has since resolved. (B) For each skin disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include as due to his conceded exposure to asbestos and herbicide agents and his sun exposure as the result of his military occupational specialty of builder. A rationale should be offered for any opinion provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.