Citation Nr: 21067779 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-01 786 DATE: November 5, 2021 ORDER Service connection for a skin disorder involving the hands is denied. Service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's skin disorder is not due to service. 2. The Veteran's left ear hearing loss is not due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder involving the hands have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.311. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to July1981. This matter is on appeal from a January2014 rating decision. In October 2018, September 2020 and March 2021, the Board remanded this matter for additional development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a skin disorder involving the hands The Veteran contends that he has a current skin disorder involving his hands as a result of his period of service, to include being exposed to large amounts of lime from working with concrete, lack of hand protection while fabricating sheet metal, working next to radar and microwave towers, and handling materials that were usually too hot to touch without hand protection. See 1/8/2019 VA Form 9 statement; 3/25/2013 Radiation Risk Activity questionnaire; 3/11/2013 Veteran statement; 12/31/2012 claim form statement. There is some question as to the nature of the current diagnosis. A VA examiner in October 2019 diagnosed vitiligo. A VA examiner in November 2020 noted this prior diagnosis of vitiligo, but found the Veteran's "skin lesions are more in keeping with a diagnosis of seborrheic keratosis, and that is the diagnosis that is made today." A VA examiner in June 2021 did not specifically address this discrepancy, but gave an opinion on vitiligo, which appears to indicate that this examiner concurred in the vitiligo diagnosis. Reconciling these opinions into a consistent whole shows that the Veteran is not diagnosed with two different skin conditions of the hands. Rather, the different providers have observed the same symptoms, but given them different diagnostic labels. There is no discrepancy as to the actual condition at issue, and this evidence does not establish different diagnoses. See, e.g., 38 C.F.R. § 4.2 (Different examiners, at different times, will not describe the same disability in the same language). Hence, a current disability is established. The in-service events are also indicated. His DD 214 shows that his primary specialty was steelworker with 8 weeks of steelworker class A school. He was assigned to a Naval Mobile Construction Battalion ("Seabee") unit. His service treatment records (STRs) show treatment in June 1980 for complaints of "cement poisoning," which was assessed as an abrasion observed with what "looks like concrete dust . . . settled on [the] abrasion." Otherwise, the Veteran's service personnel records (SPRs) were not obtained. Hence, it cannot be ascertained by direct evidence that any of the other specific exposure events actually occurred. However, the types, places, and circumstances of his service are consistent with the exposure events claimed. See 38 U.S.C. § 1154(a). Hence, the exposure events in service are considered established. The critical question in dispute is whether his current condition is related to any of these exposure events. The Veteran was provided a VA examination in October 2019, at which time he was diagnosed with vitiligo. The October 2019 VA examiner opined that the Veteran's hand skin disorder was less likely than not incurred during service as his STRs did not contain complaints, treatment, or diagnosis for a claimed skin condition, and he had a normal skin evaluation at the July 1981 separation examination. The Board's prior September 2020 remand found this VA examiner's rationale inadequate because the examiner materially relied on an absence of treatment or symptoms in service and because the examiner did not address the Veteran's reported exposure to lime and other solvents and chemicals while working heavy construction during service. In November 2020, the Veteran was afforded a VA examination for his skin condition. The examiner noted that the Veteran was diagnosed with seborrheic keratosis. The Veteran reported that he was "stationed in the tropics for four years near the equator" and contended that he developed his skin conditions as a result of sun exposure. The Veteran reported that he always had sunspots, including when he was younger. The examiner noted that the Veteran stated he noticed them in his 30's but was unable to identify a year range. The Veteran reported his current symptoms included no pain, intermittent swelling, and pigmentation, but no treatment. The examiner noted that in October 2019 the Veteran was diagnosed with vitiligo, but "on the examination today the claimant's skin lesions are more in keeping with a diagnosis of seborrheic keratosis, and that is the diagnosis that is made today." The examiner noted that the Veteran had not treated his skin condition with medications for the past 12 months. The examiner noted that the Veteran was concerned about "what will develop" in the future. The examiner opined that the Veteran's skin condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As for rationale, the examiner explained that the Veteran did not receive any treatment in service and there was no incident of a skin condition noted during service. There was also no documentation of treatment after service. The examiner further explained that: Seborrheic keratosis is a solar keratosis, which is a benign condition and is relatively common, especially in sun-exposed areas of the body such as the hands. Subsequent to his military service, the claimant states he worked construction for decades, and continued further sun exposure during this time of his life. He currently wears gloves while out in the sun and a cap to protect his scalp. This, however, does not remediate the effects of sun exposure over the decades prior to this. It is not possible to determine the likelihood of developing this condition at a greater than 50 percent probability as a result of the claimant's service and comparison to any other person who has not served in the military and has been exposed to the sun In its March 2021 remand, the Board found that this examiner's opinion was not entirely adequate because the examiner did not address the Veteran's contentions that he was exposed to large amounts of lime from working with concrete, lack of hand protection while fabricating sheet metal, working next to radar and microwave towers, and handling materials that were usually too hot to touch without hand protection. Upon remand, a third June 2021 VA examiner reviewed his case and opined that the condition was less likely than not related to service. The examiner specified that the vitiligo on his hands was less likely than not incurred from lack of hand protection while fabricating sheet metal, overexposure to UV rays, exposure to lime while working with concrete, radar/microwave towers, and handling materials too hot to touch without hand protection. The examiner explained that vitiligo is a failure of the melanocytes (pigment producing cells) to make melanin. The examiner specified that it is an autoimmune disorder of the skin, and the etiology is unknown (citing www.mayoclinic.org>vitiligo>syc20355912). The examiner observed that UV radiation is a known treatment for vitiligo that sometimes works to repigment the skin, and it certainly does not cause vitiligo. Furthermore, according to the examiner, the Veteran had a normal skin examination in July 1981 at the end of his service with the onset of the vitiligo in October 2019. The examiner concluded by reiterating that there is no causal relationship between the exposures the Veteran encountered during his service and his vitiligo. The Board finds this examiner's opinion persuasive because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is especially probative as the VA examiner was dermatologist, so had advanced expertise in this area. Moreover, consistent with the Board's prior remands, this March 2021 VA examiner considered all exposure events. The examiner did not address them all separately. However, the examiner noted them and explained specified that the cause of the Veteran's condition was unknown. By inference, this can only mean that none of the exposure events could be a potential etiology of the condition. To the extent the VA examiner relied on an absence of any in-service symptoms or treatment of the condition, the examiner's rationale is understandable from the context: that the Veteran's condition is not related to service to the extent it did not first manifest in service. This rationale, even if not explicitly stated, is understandable. See Monzingo, 26 Vet. App. at 105-06 (a VA examination report "must be read as a whole" to determine the examiner's rationale.). The rationale appears sound in light of the fact that the Veteran has not asserted that the condition first manifested in service. Finally, the examiner assumed as true that the exposure events did, in fact, occur. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Thus, the Board finds the March 2021 VA examiner's opinion to be persuasive and probative as to the nexus element of the claim. The Board observes that the Veteran raised a theory of entitlement involving exposure to radiation. Development under 38 C.F.R. § 3.311 was not undertaken, but is not necessary. First, the Veteran's skin condition (whether diagnosed as actinic keratosis or vitiligo) is not on the list of radiogenic diseases under 38 C.F.R. § 3.311(b)(2). The Veteran also did not cite or submit competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). As such, no further development under 38 C.F.R. § 3.311 is warranted. The Veteran believes his condition is related to the in-service exposure events. The Veteran in this case is not competent to provide a nexus opinion regarding this question. Although it is common knowledge and within ordinary exposure to know that exposure events, such as sun exposure, might cause skin disease, the Veteran's issue is medically complex, as it requires knowledge of different skin diseases, the risk factors for those skin diseases, and whether they correspond with the Veteran's history of exposure events. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinion. In sum, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a skin disorder involving the hands is not warranted. 2. Service connection for a left ear hearing loss. The Veteran contends that his hearing loss is the result to noise exposure during service. The Veteran stated that while he was in service there were no safety standards or protective equipment for construction work; the only protective equipment he had were his steel-toed boots and a hard hat. He explained that he was not issued ear plugs or safety equipment for his ears. He maintains that since leaving service he had utilized the safety equipment, and the standards were much higher than when he was in service. See 1/8/2016 VA Form 9 statement; 3/11/2013 Veteran testimonial 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, 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. Current left ear hearing loss pursuant to 38 C.F.R. § 3.385 is established pursuant to December 2020 testing. HERTZ 500 1000 2000 3000 4000 LEFT 25 20 20 60 65 Speech recognition scores were 98 percent left ear. Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, left ear hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. In-service noise exposure is also shown. As discussed herein above, the Veteran was a steelworker during service for a Seabee unit. He has credibly described noise exposure during his service, including construction noise, without hearing protection. Consistent with the types, places, and circumstances of his service, it is likely that he was exposed to noise during service. The STRs do not demonstrate a hearing impairment during service. At service entrance in March 1977, audiometric testing showed hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 0 -- 5 At service separation in July 1981, the Veteran's hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 0 0 15 Because auditory thresholds at these examinations were not 40 decibels or greater in any of the frequencies or 26 decibels or greater in at least three of the frequencies (speech recognition scores were not given), hearing loss for VA purposes during service is not established. See 38 C.F.R. § 3.385. The critical question in dispute remains whether the Veteran's current left ear hearing loss is due to the noise exposure during service. A VA examiner in January 2014 and August 2019 gave negative opinions indicating that the Veteran's hearing loss was less likely than not related to in-service noise exposure. The Board in its October 2018 remand found the January 2014 VA opinion insufficient because the VA examiner did not address the significance of the shift in the pure tone thresholds between the Veteran's enlistment and separation audiometric results. (The October 2018 remand mistakenly identified this as a December 2013 opinion.) The Board now observes that January 2014 VA examiner did address the threshold shift. The examiner answered "Yes" where asked if there was a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear. The examiner's rationale explained that the hearing was nonetheless within normal limits at the time of enlistment and separation. Hence, the Board's October 2018 reason for discounting this VA examiner's opinion was based on an inaccurate summary of the VA examiner's opinion. As such, this opinion is some probative evidence again the claim. In its September 2020 remand, the Board discounted both the January 2014 and August 2019 VA opinions on the basis that both the January 2014and August 2019 VA examiners based their opinions on the Institute of Medicine (IOM) report titled Noise and Military Service: Implications for Hearing Loss and Tinnitus, which concluded that delayed effects from noise exposure were unlikely. The Board pointed out that the decision in McCray v. Wilkie, 31 Vet. App. 243 (2019), identified qualifying and contradictory findings in the IOM report, which were not address by the examiner. Upon remand, in December 2020, the Veteran was afforded an examination for his hearing by a different VA examiner. The examiner opined that the Veteran's left ear hearing loss is less likely than not (less than 50 percent probability) caused by or the result of service. As for rationale, the examiner explained that while the Veteran was exposed to loud sounds of large drones, loud equipment and claymore mines, his separation examination in the left ear revealed normal hearing and no threshold shift when compared to the enlistment audiogram. The Board's March 2021 remand found this December 2020 VA examiner's opinion insufficient because the examiner did not address the Veteran's delayed onset contention. The Board also found that an addendum was required to address the statements in the IOM study identified in McCray, especially that there was "not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Board found that, if the examiner still relied on the IOM report to support a negative opinion, s/he should state why such conclusion is applicable to the facts of this Veteran's case. Upon remand, the Veteran's case was reviewed by a third examiner in April 2021. This examiner also concluded that the Veteran's hearing loss was less likely than not related to service. The examiner "readily conceded" the reports of and/or documentations of training, qualifications, or combat activity consistent with hazardous noise exposure in service. The examiner explained that, regarding reports from the Veteran of hazardous noise exposure during service, including that related to duties in construction, work with construction equipment and tools, and working next to a drone testing facility, it can be readily conceded that such activities could be associated with hazardous noise exposure. However, for VA purposes, the examiner clarified that a nexus of auditory damage is needed in order to relate hearing loss to service noise exposure, and mere concession of noise exposure is not sufficient for a positive nexus opinion. The examiner went on to explain that, regarding any contradictions in the 2006 IOM study found in McCray v. Wilkie in 2019, the ruling found simply that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." The examiner commented that it has never been argued that the 2006 IOM study was perfect or definitive, but as a definitive study on delayed-onset noise-induced hearing loss in humans, which would involve exposing humans to controlled doses of hazardous noise to deliberately cause damage to the auditory system, would be ethically questionable at best and, as the other available medical studies on the subject of delayed-onset noise-induced hearing loss rely exclusively on animal models and have questionable applicability to human models, the 2006 IOM study is considered to be the most sufficient and relevant study currently available concerning delayed-onset noise-induced hearing loss in humans. The examiner found that the presence of one or two contradicting statements is not necessarily disqualifying for all findings within the IOM study, and findings from the study remain relevant to this case upon appropriate application. To this end, the examiner went on to observe that a threshold shift of 10 dB was observed between 1977 and 1981 service audiograms in the left ear at 4000 Hz. According to the examiner, the National Institute for Occupational Safety and Health (NIOSH) recommends a criterion of 15 dB for a significant threshold shift, so the 10 dB threshold shift observed between 1977 and 1981 service audiograms in the left ear at 4000 Hz was not considered to be significant. Furthermore, according to the examiner, the Veteran presented at separation with normal hearing and without significant threshold shifts compared with those obtained at earliest available service audiogram, most notably in the mid to high frequencies which are known to be particularly sensitive to acoustic trauma. The examiner found this to be etiologically relevant because in 2006 the IOM found that the most profound auditory effects of noise exposure occur immediately following exposure. This suggested to the examiner that, if caused by service noise exposure, hearing loss and/or threshold shifts would have an onset during service and/or would be present at separation. The examiner summarized that, in all, the best available evidence and data did not demonstrate to a 50 percent likelihood that the Veteran's current bilateral hearing loss was caused by or a result of in-service noise exposure. Therefore, the examiner's opinion was that it was less likely than not that the Veteran's current hearing loss was caused by or a result of in-service noise exposure. The examiner found it more likely that the Veteran's current bilateral hearing loss was caused by or a result of a post-service event, process, or pathology. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. It reconciles the apparent qualifying statements and contradictions identified in McCray with why the IOM study remains medically important generally and specifically in application to this Veteran's case. The VA examiner then applied the study's findings to the accurate facts of this Veteran's case. The opinion addressed all concerns raised in McCray, plus the Board's prior remands, including as it concerned the contention of delayed-onset hearing loss and the IOM study. The examiner mentioned the 10 dB shift at 4000 Hertz, but not the one at 500 Hertz. This would appear nonconsequential, however, as the VA examiner explained why a threshold shift of 10 dB would not represent a significant threshold shift. At present, the Board can find no reason to call into question or otherwise discount the probative weight of the VA examiner's opinion. Thus, overall, the VA examiner's opinion is of great probative weight and establishes why, as a medical matter, a nexus in this case is unlikely. (Continued on the next page) At this stage, the Board finds the VA opinion determinative. The Veteran believes his hearing loss is related to in-service noise exposure. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. As demonstrated by the multiple VA opinions, it requires knowledge of audiometric testing results, noise exposure, advanced medico-scientific studies, and the interaction between these factors. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the VA opinions. In sum, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for left ear hearing loss is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.