Citation Nr: 21076515 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-09 694 DATE: December 27, 2021 ORDER Entitlement to service connection for headaches is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a skin condition, to include as due to service in the Gulf War, is granted. REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to service in the Gulf War, is remanded. 3. Entitlement to service connection for an upper gastrointestinal condition, to include as due to service in the Gulf War, is remanded. 4. Entitlement to service connection for a lower gastrointestinal condition, to include as due to service in the Gulf War, is remanded. 5. Entitlement to service connection for a respiratory condition, to include as due to service in the Gulf War, is remanded. FINDINGS OF FACT 1. On the record and with knowledge of the consequences, in her August 2021 Board hearing, the Veteran withdrew her claim of service connection for a headache disability. 2. The Veteran's tinnitus is etiologically related to service. 3. The Veteran has a diagnosis of actinic keratosis that is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran for the issue of service connection for a headache disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a skin disorder, to include as due to Gulf War service, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1978 to June 1981 and from July 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. Withdrawal of Claim 1. Entitlement to service connection for a headache disability. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. On the record in the Veteran's August 2021 Board hearing, the Veteran withdrew her claim of service connection for a headache disability. The consequences of that withdrawal were addressed on the record and the Veteran indicated that she understood them. As the Veteran properly withdrew her claim, there remain no allegations of errors of fact or law for appellate consideration as it relates to that issue. Accordingly, the claim is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 2. Entitlement to service connection for tinnitus. The Veteran contends that she has tinnitus that was caused by service. Specifically, in a November 2015 written correspondence, the Veteran reported being exposed to loud radio transmissions from military helmets with hearing devices, weapons training, engine noise from diesel boat motors, truck engines, and field generator noise. She reported having constant ringing in her ears and her hearing worsening in service. Military personnel records show the Veteran's primary specialties included being a radioman and information technology. Records also show that she was deployed to Iraq for Operation Desert Storm. Therefore, given the circumstances of her service, the Board finds the Veteran's statements are credible and acoustic trauma in service is conceded. In an April 2015 VA audiology examination, the Veteran was diagnosed with tinnitus; however, the examiner found that it was less likely than not related to service because the Veteran provided inconsistent reports as to the onset of tinnitus. The examiner further found that the Veteran's hearing was within normal limits for rating purposes, there was a lack of documentation of complaints in service, and the Veteran's first documented treatment was more than five years after separation. In considering the examiner's opinion, the Board initially notes that the examiner relied on the lack of documented treatment in service; however, this does not preclude service connection. Additionally, although the Veteran was found to have normal hearing for rating purposes, she was nonetheless, diagnosed with bilateral sensorineural hearing loss bilaterally. Furthermore, service treatment records (STRs) appear to show some degree of hearing loss in service as a January 2006 hearing test shows her left ear registered 25 decibels at 3000 hertz and 25 decibels at 6000 hertz for the right ear. Notably, thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). With regard to the onset of tinnitus, the Veteran reported in her examination that she first experienced ringing in her ears in 2006 while deployed. She also reported the same in her August 2021 hearing. However, in a January 2015 treatment record, she reported an onset of six months prior. The Board notes that tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialized medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran, as a lay person, is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board finds the Veteran is competent to report symptoms of tinnitus. As it relates to the Veteran's credibility; the evidence shows conflicting reports as to the onset of tinnitus. However, given that the Board has conceded acoustic trauma during active service, the Veteran has a diagnosis of tinnitus, and the Veteran has competently reported that she first experienced tinnitus while in service, the Board finds the evidence is in equipoise. Thus, resolving reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. 3. Entitlement to service connection for a skin condition, to include as due to service in the Gulf War. In a November 2015 written correspondence, the Veteran contended that her skin disability was caused by service due to being exposed to chemicals and sandstorms while in Desert Storm. Service treatment records (STRs) show the Veteran had recurrent basal cell carcinoma, actinic keratosis, and solar keratosis due to sun exposure. In a May 2007 post-deployment treatment record, it was also noted that the Veteran was exposed to increased levels of sun and that she had multiple facial spots treated with liquid nitrogen. Post-service records show a diagnosis of actinic keratosis in a November 2011 dermatology consult and in a July 2016 dermatology visit. She was also found to have a history of basal cell carcinoma with no signs of recurrence. With regard to a nexus, the Veteran was diagnosed with acne and actinic keratosis in her April 2015 VA skin examination. In addition, the examiner found that it is as likely as not that the Veteran's actinic keratosis lesions originated during service since it is noted in a June 2007 STR that she went to a dermatologist for prescription for a skin condition. The examiner further found that the skin condition is as likely as not related to excessive sun exposure during her long Naval career. Alternatively, in a July 2015 addendum opinion, a different examiner found that the Veteran's actinic keratosis and acne were not related to her in-service history of basal cell carcinoma. In considering the competing medical opinions, the Board notes that the July 2015 examiner did not provide a medical rationale to support her opinion. Additionally, the examiner based her opinion solely on the Veteran's in-service diagnosis of basal cell carcinoma and did not provide an opinion as to the relationship between the Veteran's in-service diagnosis of actinic keratosis and her current diagnosis of keratosis. Therefore, this opinion is inadequate and offers low probative value. Conversely, the Board finds the April 2015 medical opinion is the most probative evidence of record since the examiner reviewed the Veteran's complete medical history and the opinion is supported by medical rationale. As such, the preponderance of evidence is in favor of the claim. Accordingly, service connection for a skin disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that she has bilateral hearing loss due to service. As noted above, acoustic trauma in service has been conceded and there is some evidence that the Veteran may have experienced hearing loss in service. However, in her April 2015 audiology examination, the Veteran did not have right or left ear hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. The Board notes, however, that in her August 2021 hearing, the Veteran reported that her hearing loss has worsened. As the Veteran's last examination was over six years ago, the Board finds a new examination is warranted to determine whether the Veteran has a current hearing loss disability for VA purposes. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Moreover, the Veteran received an audiology examination in January 2015 at the Monterey VA; however, that audiogram is not of evidence. Therefore, the Veteran's outstanding treatment records must be obtained while on remand. 2. Entitlement to service connection for an upper gastrointestinal condition (GI), to include as due to service in the Gulf War, is remanded. 3. Entitlement to service connection for a lower gastrointestinal condition, to include as due to service in the Gulf War, is remanded. The Veteran contends that she has a gastrointestinal condition that was caused by exposures to hazardous chemicals while in the Gulf War. She also testified to having excessive bowel movements in Kuwait. In an April 2015 VA examination, the examiner found that the Veteran has no discernable gastrointestinal condition; therefore, it is less likely than not that she has a current GI condition that is related to any environmental exposure in the Gulf. The Board notes, however, that treatment records show the Veteran was diagnosed with atrophic gastritis and abdominal pain of the right upper quadrant in June 2014 by her VA clinician. Therefore, a new examination and medical opinion is warranted to determine the etiology of the Veteran's gastrointestinal disorder. 4. Entitlement to service connection for a respiratory condition, to include as due to service in the Gulf War, is remanded. The Veteran contends she has a respiratory disability caused by her service in the Gulf War. In a November 2015 written correspondence, she specifically reported that she was exposed to chemicals in the air which included ammonia, sulfur, diesel gases, and sandstorms. She also reported that she began having breathing problems while in Kuwait and Qatar. In a July 2015 VA medical opinion to determine the etiology of her breathing problems, the examiner found that the Veteran has a diagnosis of asthma that was not related to environmental hazards associated with service in Southwest Asia since the condition is a diagnosable illness with a known etiology. In this regard, the Board notes that service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). Notwithstanding the above, service connection may still be granted on a direct basis if the condition is found to be directly related to service. The Board notes, however, that the July 2015 examiner did not explore and provide an opinion for this theory of entitlement, but merely found that asthma was not an undiagnosed illness. Therefore, the Board finds the opinion is inadequate, and a new medical opinion is warranted. 5. Entitlement to service connection for chronic fatigue syndrome, to include as due to service in the Gulf War, is remanded. In a September 2015 VA examination for chronic fatigue syndrome, the examiner noted that the Veteran had symptoms of debilitating fatigue, generalized muscle aches or weakness, headaches, migratory joint pains, neuropsychological symptoms, and sleep disturbance. The examiner nevertheless found that the Veteran did not have a diagnosis for chronic fatigue syndrome. However, as noted above, service connection may be granted for claims related to service during the Persian Gulf War if there is (1) an undiagnosed illness, and (2) evidence of a chronic disability. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Qualifying chronic disabilities include medically unexplained chronic multi-symptom illnesses, such as chronic fatigue syndrome, that are defined by a cluster of signs or symptoms. 38 U.S.C. § 1117 (a). Signs and symptoms include: (1) fatigue; (2) unexplained rashes or other dermatological signs or symptoms; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) upper or lower respiratory system signs or symptoms; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117 (g). Here, the examiner noted that the Veteran exhibits several of these symptoms, but the examiner did not provide an opinion as to whether these symptoms were part of an undiagnosed illness attributed to the Veteran's Gulf War service. As such, remand is warranted to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder, to include the Veteran's January 2015 VA audiology examination from the Monterey VA medical clinic. 2. Schedule the Veteran for a VA audiology examination with an appropriate medical professional to determine the etiology of her hearing loss. The claims file, to include a copy of this remand, must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's hearing loss disability manifested during service, or is otherwise related to service, to include her in-service acoustic trauma. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. Schedule the Veteran for VA examinations to determine the etiology of the Veteran's gastrointestinal disorder, respiratory disorder, and chronic fatigue syndrome. GASTROINTESTINAL: Provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran has a gastrointestinal disorder that was caused by service, to include environmental hazards associated with service in the Gulf War. RESPIRATORY: Provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran has a respiratory disorder that was caused by service, to include environmental hazards associated with service in the Gulf War. CHRONIC FATIGUE: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran has chronic fatigue syndrome that was caused by service, to include environmental hazards associated with service in the Gulf War. (b) If the Veteran does not have a diagnosis for chronic fatigue syndrome, provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran's symptoms are a part of a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. Further develop the claims to the extent necessary. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.