Citation Nr: 21071274 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-00 049 DATE: November 30, 2021 ORDER Service connection for tinnitus is granted. Service connection for a heart disability, to include as due to exposure to herbicide agents, is denied. REMANDED Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cellulitis of the right leg is remanded. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for basal cell carcinoma (BCC) of the left upper lip, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for dermatitis of the lower extremity, to include as secondary to cellulitis of the right leg, is remanded. Entitlement to service connection for a vascular disability of the lower extremities, to include as secondary to cellulitis of the right leg, is remanded. FINDINGS OF FACT 1. The evidence as to whether the Veteran's tinnitus had its onset in service is at least in equipoise. 2. The Veteran does not have a current heart disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for a heart disability have not been met. 38 U.S.C. §§ 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1967 to February 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The agency of original jurisdiction (AOJ) furnished the Veteran a statement of the case relative to the matters herein decided in November 2018. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the claim that is currently being denied. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding organic diseases of the nervous system and cardiovascular-renal diseaseto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In an October 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The United States Court of Appeals for Veterans Claims (Court) has since held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Veterans who engaged in combat with the enemy can prove that a disease or injury was incurred or aggravated in service by lay evidence alone, as long as the evidence is consistent with circumstances of service and is not rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus At the June 2021 Board hearing, the Veteran testified that he had tinnitus that began in service and had continued since. He specified that while serving in Vietnam, he was a foot soldier and went out on sweeps and patrols, that he had no hearing protection, and that he was around a lot of gunfire, blasting, big rounds, and shells. As an initial matter, the Board notes that the Veteran is competent to report the symptoms he experiences, such as ringing in his ears. Accordingly, the first element of service connection has been established. Additionally, and as noted, he was awarded the Combat Infantryman Badge, which establishes his participation in combat. As such, the provisions of 38 U.S.C. § 1154(b) are for application. His reports regarding noise exposure during service are consistent with the circumstances of his service, and with his military occupational specialty of squad leader, which is reflected on his DD Form 214. Therefore, the second element of service connection has also been established. As to the nexus, or link, between the Veteran's tinnitus and service, he is competent to provide statements with respect to the onset and presence of tinnitus, inasmuch as such symptoms are observable by a lay person. The Board acknowledges that he has made inconsistent statements in that regard. He has at times denied having recurrent tinnitus, including during an April 2015 VA examination. VA treatment records also show inconsistent findings, with an April 2014 record indicating that there was no tinnitus, but a June 2014 VA treatment record indicating that a history for tinnitus was positive. These apparent inconsistencies were explained by the Veteran at his hearing, when he testified that he got ringing in his ears on and off through the years. He stated plainly that the ringing began in service and had continued through the years since his separation from service. Giving the Veteran the benefit of the doubt, the Board finds his explanation reasonable, and his statements with respect to onset in service credible. The Board acknowledges that a VA audiologist who evaluated the Veteran in April 2015 found that the Veteran did not have a current diagnosis, and therefore offered no opinion with respect to nexus. However, the examiner did not account for the Veteran's lay statements with respect to onset. As such, the examiner's opinion in that regard is of limited probative value. On balance, and taking into account the totality of the evidence, including the Veteran's in-service noise exposure and his statements and explanations with respect to onset and continuity/recurrence of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. 2. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents The Veteran believes that he may have a heart disability that was incurred in or caused by service, to include as due to exposure to herbicide agents. At the June 2021 hearing, he testified that he had not had any heart surgeries, and that the only medication he was taking was for high blood pressure. He further testified that he had not been diagnosed with a heart condition. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include ischemic heart disease. 38 C.F.R. § 3.309(e). The question before 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 or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309, 3.310. In order for service connection to be established, there first needs to be competent evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the present case, the Board must find that the Veteran is not shown to have had a heart disability at any time during the pendency or proximate to the filing of his claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). The available treatment records contain no diagnoses or descriptions of functional impairment related to the heart during the pendency of the claim. Nor has he described any current impairment in earning capacity related thereto. He underwent a consultation regarding his heart in September 2014. While a nuclear stress test was abnormal with further testing ordered, no diagnosis was given. Thereafter, he was afforded a VA examination in connection with his claim in April 2015. All testing, including an echocardiogram, was normal, and the examiner found that the Veteran did not have a current heart condition and that he had never been diagnosed with one. Subsequent VA treatment records in October 2016, April 2017, and September 2018 are also negative regarding the heart. In addition, the Veteran's service treatment records (STRs), including the February 1969 exit examination, are negative for any problems with the heart. Although the Veteran had service in Vietnam, and his exposure to herbicide agents is therefore conceded, there is simply nothing in the record to suggest that he has a current heart disability. While he may believe that he suffers from a heart disability that is related to service, the evidence does not establish that he has the specialized training or medical expertise to diagnose a heart disability, and does not otherwise support a finding that he has a diagnosis of a heart disability or functional impairment of the heart resulting in loss of earning capacity. The April 2015 VA 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 v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions to the contrary. In light of the foregoing, the Board must find that the preponderance of the evidence is against the claim. As such, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue must be denied. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cellulitis of the right leg is remanded. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for BCC of the left upper lip, to include as due to exposure to herbicide agents, is remanded. The Veteran contends that his right leg cellulitis was incurred in service. Specifically, he testified at the June 2021 hearing that he was treated in service for cellulitis in a field hospital while serving in Vietnam; in his November 2014 application, he specified that the hospital was in Chu Chi, Vietnam. He contends that his left upper lip BCC was also incurred in service, to include as due to exposure to herbicide agents. The Veteran first filed a claim for service connection for right leg cellulitis in June 2006; and he first filed a claim for service connection for BCC of the left upper lip in February 2010. Rating decisions in November 2006 and June 2010, respectively, denied the claims. The Veteran did not initiate an appeal within the one-year period following the mailing notice of the decisions. Thereafter, he submitted an application to reopen the claims in November 2014. In its November 2006 rating decision, the RO noted that while the Veteran had stated that he was hospitalized for 4-5 days while in Vietnam for cellulitis, a review of his STRs was silent for any treatment of a leg condition. However, historically, records of in-service hospital treatment were sometimes stored separately from other records. Because it is not clear that efforts have been exhausted to obtain the records to which the Veteran refers, additional development is required. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). Regarding the Veteran's claim for service connection for BCC of the left upper lip, the Board acknowledges that he has not reported any treatment related to BCC or skin cancer during service. However, inasmuch as the claims file demonstrates that the Veteran underwent surgery for BCC of the left upper lip in February 2010 (and that he therefore has a current disability as to BCC), and that his exposure to herbicide agents has been conceded by virtue of his service in Vietnam, the Board finds that a remand of that claim is also necessary in that potentially missing STRs might contain additional information in relation to that claim. 3. Entitlement to service connection for dermatitis of the lower extremity, to include as secondary to cellulitis of the right leg, is remanded. 4. Entitlement to service connection for a lower extremity vascular disability, to include as secondary to cellulitis of the right leg is remanded. The Veteran contends that his lower extremity dermatitis and lower extremity vascular disabilities are secondary to his right leg cellulitis. At the June 2021 hearing, he testified that in addition to being diagnosed with cellulitis in service, he also first had a rash on his ankle during service which was still there and never went away. He contended in his November 2014 application for benefits that his lower extremity dermatitis was possibly due to fungal infection and/or cellulitis. At the June 2021 hearing, he described the problem in his legs as being weakness but was unable to confirm his exact diagnosis in relation to a lower extremity vascular disability. Inasmuch as the Veteran has broadly construed his lower extremity disabilities as secondary to the cellulitis for which he claims he was treated in service, the Board finds that he has also reasonably raised the theory that his lower extremity vascular disability is secondary to his right leg cellulitis. As an initial matter, the Board notes that the claims file demonstrates that the Veteran has current disabilities as to both dermatitis and a vascular disability of the lower extremities, and that in point of fact the two disabilities may be connected. A June 2006 VA treatment record, for example, shows a diagnosis of venous stasis dermatitis. An April 2014 VA treatment record shows diagnoses of both chronic venous stasis and stasis dermatitis of both ankles, right greater than left. A December 2015 VA treatment record shows a diagnosis of eczematous dermatitis, and a May 2016 VA treatment record shows a diagnosis of bilateral chronic varicosities. In light of the Veteran's contentions and the evidence of record, the Board finds that the Veteran's claims for service connection for dermatitis and a vascular disability of the lower extremities are inextricably intertwined with his claim for service connection for right leg cellulitis. Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). As such, these issues are likewise remanded. These matters are REMANDED for the following action: 1. Request through official sources any hospital records that might correspond to the care the Veteran reportedly received during service for right leg cellulitis (reportedly at a field hospital in or near Chu Chi, Vietnam). If additional information is required from the Veteran to request the records, he should be asked to provide it. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.