Citation Nr: 21073706 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-45 598 DATE: December 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for skin cancer, to include as due to in-service exposure to herbicide agents, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus is due to his in service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1963 to August 1967, and from November 1967 to February 1968. This appeal to the Board of Veteran's Appeals (Board) arose from an April 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C.§ 7107(a)(2). Service connection for tinnitus A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). The Veteran contends that his tinnitus developed as a result of in-service noise exposure. The evidence of the record establishes that the Veteran has a current diagnosis of tinnitus. His military occupational specialty (MOS) was that of an electrician's mate, which has a moderate probability for hazardous noise exposure. He asserts that he began to notice his tinnitus symptoms during his active service, after he would leave the engine rooms. He described that he could hear the "roaring" in his head. As time passed, he began to notice his symptoms more. On the March 2018 VA Examination, the examiner indicated that the Veteran had reported the onset of his tinnitus to be in 2000. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by, or related to, his military noise. The basis of the opinion was due to the reported onset date of tinnitus. The examiner explained that the Veteran had occupational noise exposure. 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. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) & 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"). Tinnitus is a condition for which the Veteran is uniquely situated to competently identify and report on the onset and duration of this condition. After thoroughly considering the evidence of the record, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current tinnitus is due to his in-service noise exposure. The basis for the negative nexus opinion was due to the reported onset date of the Veteran's tinnitus. However, the examiner did not further explain why the Veteran's established in-service noise exposure could not have contributed to his development of tinnitus, especially because the Veteran is service-connected for hearing loss due to that same in service noise exposure. Nonetheless, the Veteran clarified that he began to notice his tinnitus symptoms during service. Based on the nature and circumstances of the Veteran's MOS duties, the Board finds his statements regarding onset of his symptoms to be competent and credible. Accordingly, and in resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met and that entitlement to service connection for this disability is warranted. REASONS FOR REMAND Service connection for skin cancer, to include as due to in-service exposure to herbicide agents After a thorough review of the evidence of the record, the Board finds that a remand is necessary prior to the adjudication of the Veteran's claim for service connection for skin cancer. Specifically, the Veteran asserts that he developed soft tissue sarcoma due to exposure to herbicide agents while stationed in Guam during his active service. Evidence establishes a current diagnosis of soft tissue sarcoma. Although active military service in Guam does not presume exposure to Agent Orange or other herbicide agents, service connection can still be warranted on a direct basis. For claims regarding herbicide agent exposure in locations other than the Republic of Vietnam or Korean DMZ, the Agency of Original Jurisdiction (AOJ) should make attempts to verify whether any herbicide agent exposure occurred based on the Veteran's assertions of such exposure. In this case, the Veteran asserts that he was stationed in Guam during his active service. He points to dates in the military personnel records. However, the records do not specify whether the Veteran was stationed in Guam. Further review of the record does not show that the AOJ made any attempts to verify the Veteran's herbicide agent exposure in the places and periods in which he purportedly served. No follow-up requests, or attempts, to verify the information based on the Veteran's service personnel records were made. Thus, the Board finds that a remand is necessary for the AOJ to follow the necessary procedures to verify any herbicide agent exposure in the time period and location in which the Veteran was purportedly stationed in Guam. Accordingly, this matter is REMANDED for the following action: 1. Undertake any necessary development to verify independently the Veteran's purported service, including herbicide agent exposure, in Guam. Development should include contacting the United States Army and Joint Services Records Research Center (JSRRC), or other appropriate agency, using unit information, date of occurrence information, and names of witnesses, as well as the information available in the Veteran's service personnel records. The AOJ should provide him with the opportunity to provide the detailed information necessary for verification. The agencies contacted should provide any available information that might corroborate the Veteran's purported service, including herbicide exposure, in Guam. Any additional action necessary for independent verification of the particular alleged toxin exposure, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the AOJ /RO must notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information, and describe any further action to be taken. If the Veteran's described service, including herbicide exposure, in Guam lacks sufficient information for verification, such should be noted in a formal finding. 2. After the development requested above has been completed to the extent possible, to include obtaining a VA examination if deemed warranted by the AOJ, the case should again be reviewed by the AOJ on the basis of all of the evidence on the record. If the benefit remaining on appeal is not granted, the AOJ should furnish the Veteran and his representative a supplemental statement of the case (SSOC) and should accord them the opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit (CONTINUED ON NEXT PAGE) additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.