Citation Nr: 21072405 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-54 405 DATE: December 3, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for facial nerve pain is reopened. The claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED The claim of entitlement to service connection for a skin disorder is remanded. The claim of entitlement to service connection for facial nerve pain is remanded. The claim of entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. A July 1970 rating decision denied the claim to reopen the issue of entitlement to service connection for facial nerve pain; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period and the decision is now final. 2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for facial nerve pain. 3. Resolving doubt in favor of the Veteran, the Veteran's bilateral hearing loss has been continuous since service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for facial nerve pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from June 1967 to January 1970. In August 2021, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In compliance with this case law, the Veteran's psychiatric claims have been combined to a single issue of entitlement to service connection for a psychiatric disorder. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for facial nerve pain. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The AOJ initially denied service connection for facial nerve pain in a July 1970 rating decision. The AOJ determined that the claim could not be granted because the Veteran failed to report for a necessary VA examination. The Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § § 20.201, 20.302, 20.1103. In August 2011, the Veteran filed a claim to reopen the issue of entitlement to service connection for facial nerve pain. Evidence received since the July 1970 rating decision includes a September 2011 VA treatment record noting facial pain from his right temporal area to the right side of his hip. Accordingly, reopening of the claim of service connection for facial nerve pain is warranted. 2. Entitlement to service connection for left ear hearing loss. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, which is considered an organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (b). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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 at 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d at 1313 ; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). 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, or 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. As an initial matter, The December 2011 VA examiner diagnosed bilateral hearing loss pursuant to 38 C.F.R. § 3.385. In addition, the Board finds that the Veteran's assertions that he was exposed to military noise exposure during service are both competent and credible. Specifically, the Veteran reported acoustic trauma from mortars, rockets, and artillery during his service in the Republic of Vietnam. Additionally, the Veteran has been awarded service connection for tinnitus due to in-service noise exposure. Accordingly, the evidence supports a finding of in-service acoustic trauma. The Board further notes that audiometric test results dated prior to January 1, 1967, are presumed to have been reported in units pursuant to standards set forth by the American Standards Association (ASA), unless otherwise indicated. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). During the pendency of the Veteran's appeal, the policy was changed so that for audiograms conducted between January 1, 1967 and December 31, 1970, the Board will consider the data under both ASA and ISO-ANSI standards unless it is clearly indicated which units were used. The standard that is most favorable to the Veteran will be used. The ISO-ANSI measurements are in parentheses. The Veteran's service treatment records are silent regarding complaints of or treatment for bilateral hearing loss. The Veteran's pre-induction physical examination in January 1970 reflected pure tone thresholds, in decibels, as follows: Jan.1967 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 (35) 5 (15) -5 (5) 5 (10) LEFT 10 (5) 0 (10) -5 (5) 25 (30) The Veteran's separation physical examination in January 1970 reflected pure tone thresholds, in decibels, as follows: Jan. 1970 HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 (25) 0 (10) 0 (10) 10 (15) LEFT 30 (45) 10 (20) 10 (20) 10 (15) In August 2011, the Veteran stated that he was exposed to military noise from small arms fire, machine gun fire, mortars, rockets, artillery, aircraft, and vehicles. He stated that he was exposed to military noise daily for 23 months. He reported that his bilateral hearing loss was constant since boot camp. The December 2011 VA examiner diagnosed bilateral hearing loss pursuant to 38 C.F.R. § 3.385 and opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by service. The rationale was that the Veteran's January 1970 separation examination showed normal hearing and there was no evidence of a significant threshold shift during service. The examiner explained that if the Veteran had sustained a permanent hearing loss or significant threshold shit as a result of his military noise exposure, it would have shown on his separation physical and would not have been delayed. The examiner addressed the mild left ear hearing loss of 30 dB at 500 Hz documented on the January 1970 separation examination. The examiner explained that the hearing loss must have been transient because the December 2011 VA audiology results showed normal hearing of 20 dB at 500 Hz. A December 2011 VA audiology note showed that the Veteran had post-service noise exposure from farming, working as a mechanic, hunting, and working in a factory. At the August 2021 hearing, he reported that his hearing loss continued since service. In considering the evidence of record under the applicable laws and regulations, the Board finds that that the Veteran is entitled to service connection for bilateral hearing loss. An organic disease of the nervous system, such as hearing loss, is recognized under 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) as a presumptive chronic disease. The Board finds that the Veteran's statements of hearing loss onset during service and continuing since service are both competent and credible. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, the Board notes that when converting the Veteran's January 1970 audiogram to ISO-ANSI standards, the evidence shows left ear hearing loss under 38 C.F.R. § 3.385. Although the December 2011 VA examiner found that the mild left ear hearing loss (30 dB at 500 Hz) was transient, the Board notes that the VA examiner did not use the more favorable ISO-ANSI standard (45 dB at 500 Hz) in reaching the conclusion. Therefore, the Board affords limited probative value to the VA examiner's conclusion that the mild left ear hearing loss noted during service was transient. The Board also acknowledges the VA examiner's opinion that that the Veteran's bilateral hearing loss was not related to service. However, the VA examiner did not fully consider the Veteran's competent and credible reports of hearing loss since service. Therefore, resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss. REASONS FOR REMAND 1. The claim of entitlement to service connection for a skin disorder is remanded. The Veteran asserts that he developed a skin disorder during service and that he experienced intermittent skin rashes since service. In August 2011, the Veteran described a history of breakouts and redness on his legs, hands, and arms. He stated that his skin symptoms were the result of exposure to Agent Orange. The Veteran was afforded a VA examination in August 2016. The examination documented the Veteran's report of a rash since returning from Vietnam. He reported that his private physician prescribed a cream to treat the skin rash. The examiner provided an opinion against the claim and explained that there was no evidence of chronic progressive skin complaints since service separation. The examiner stated that it would be mere speculation to relate his skin disorder to service in the absence of pertinent treatment records to attribute the subjective reported history of dermatitis to the events occurring in 1969. At the August 2021 hearing, the Veteran testified that he initially treated the skin rash with salve and wrapping his feet with cellophane. His doctor eventually found a cream to treat his rash and he continued to use the cream since then. The Board finds that the August 2016 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (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). Specifically, the examiner did not fully consider the Veteran's lay statements regarding the onset of his skin rash and his continuous symptoms since service. Instead, the VA examiner relied on the absence of evidence to support the opinion. An opinion based on the absence of treatment records without consideration of the Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Accordingly, a remand is required to obtain another VA medical opinion. Additionally, the August 2016 VA examination report and the August 2021 hearing testimony showed that the Veteran was treated by a private physician for his skin disorder. On remand, an attempt should be made to obtain such medical records. 2. The claim of entitlement to service connection for facial nerve pain is remanded. At the August 2021 Board hearing the Veteran testified that his facial nerve pain started during service and continued since then. He described facial pain that he initially thought was caused by a toothache. The Veteran has not been afforded a VA examination with respect to his claim for service connection for facial nerve pain. Generally, VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Based on the above, the Board finds the low threshold necessary to provide an examination has been established in this case. 3. The claim of entitlement to service connection for a psychiatric disorder is remanded. An August 2011 VA psychiatry note indicated that the Veteran's PTSD score was below the cutoff typically used to suggest PTSD. However, he was found to meet the criteria for PTSD. The Veteran was afforded a VA examination in December 2011. The VA examiner concluded that the Veteran did not have a diagnosed mental disorder. It was noted that he did not have any psychiatric symptoms. During the August 2021 Board hearing, the Veteran testified about being bothered about not being accepted when he returned home from Vietnam and being told he had to remove his uniform. He stated that he was triggered by the recent events in Afghanistan and was concerned for the troops returning home. He also stated that he had to haul dead bodies during his service in Vietnam. In light of the above, the Board finds that a remand is warranted to determine whether the Veteran has a psychiatric disorder that is related to his active duty service. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include the private treatment records from the doctor who treated his skin rash. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § § 3.159 (e). 2. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his facial nerve pain. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his skin disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service, to include herbicide exposure. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. The examiner must identify all psychiatric disorders present during the period of the claim. The examiner should confirm or rule out a diagnosis of PTSD. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's active duty service. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.