Citation Nr: 21077034 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-16 892 DATE: December 28, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for skin rash is reopened. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for cervical spondylosis without myelopathy is granted. REMANDED Entitlement to service connection for skin rash is remanded. FINDINGS OF FACT 1. A March 2002 rating decision denied entitlement to service connection for skin rash; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the March 2002 rating decision. 2. Evidence received since the March 2002 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for skin rash. 3. The evidence is in equipoise as to whether the Veteran's tinnitus is related to service. 4. The evidence is at least evenly balanced as to whether the Veteran's cervical spondylosis without myelopathy is related to back pain reported during service. CONCLUSIONS OF LAW 1. The March 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for skin rash is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spondylosis without myelopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of November 2016 and December 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence Service connection for skin rash is reopened In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the RO denied service connection for skin rash in a March 2002 rating decision because there was no evidence of a chronic present disability. Thus, service connection for skin rash could not be established. The Veteran was notified of the decision in a letter dated March 2002. The Veteran did not file a notice of disagreement with the March 2002 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 2002 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final March 2002 rating decision includes treatment records from 2009 and 2015 showing a chronic rash, seborrheic dermatitis. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the new treatment records raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for skin rash, and the claim is reopened. 38 C.F.R. § 3.156 (a). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a), which includes arthritis and tinnitus. In addition, such chronic diseases 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 (3), 1112 (a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309 (a). 1. Tinnitus The Veteran seeks entitlement to service connection for tinnitus. He contends that he has experienced ringing in his ears since service after he was exposed to loud noises while working in supply in a hangar for up to 12 hours a day around loud helicopters operating. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns his credibility on the matter and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran's DD-214 shows a principal duty in logistics which is consistent with his reports of noise exposure. His assertions are consistent with the circumstances of his service. The Veteran's service treatment records are absent for evidence of any complaints of or treatment for tinnitus during service. However, the Veteran has stated that his tinnitus began during service, and the Board finds that nothing in the record impugns his credibility on that matter. Accordingly, despite the absence of contemporaneous records showing in-service complaints of tinnitus, the Board finds that the Veteran's tinnitus had its onset during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence). The Board reiterates that the Veteran is considered competent to report the onset and continued presence of tinnitus. See Charles, 16 Vet. App. 370. Given the Veteran's reports of tinnitus since service, the Board finds that his statements regarding symptoms of tinnitus in service are credible. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303 (b), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board acknowledges that a May 2017 VA examiner opined that the Veteran's tinnitus is less likely as not caused by military noise exposure because the Veteran's service treatment records did not contain complaints of tinnitus and separation hearing examinations showed hearing within normal limits. However, the May 2017 VA examiner did not address the Veteran's reports of noise exposure and simply stated the Veteran's MOS has a low probability of hazardous noise exposure. As such, the Board finds that the May 2017 VA examiner's opinion is not dispositive and finds that the evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during service. Therefore, as the Board must resolve doubt in the Veteran's favor, the claim for entitlement to service connection for tinnitus must be granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Neck disability Service treatment records shows treatment for back strain in service in 1987 and a muscular strain in 1981. On his 2000 Report of Medical History, the Veteran endorsed having recurrent back pain. The clinician assessed recurrent low back pain, does not interfere with duty performance. At his Board hearing the Veteran testified he lifted heavy equipment of up to 60 pounds for long shifts over a period of many years in service. In November 2017, the Veteran had a VA cervical spine examination. The examiner diagnosed cervical spondylosis without myelopathy. Clinical findings for the cervical spine were detailed. The examiner furnished a negative medical opinion. She stated that a nexus has not been established. The Veteran contends service connection is warranted for currently diagnosed cervical spondylosis. The Board finds the evidence regarding a continuity of symptomatology nexus to be evenly balanced. By resolving reasonable doubt in the Veteran's favor, a nexus is shown and service connection for lumbar spondylosis, claimed as low back strain residuals, is granted. The Veteran asserts a continuity of symptomatology from back pain reported at separation. He is competent to report his history of back and neck pain and attendant medical treatment. His reports about experiencing back and neck pain coincident to lifting heavy equipment is plausible since he was treated for like injuries in service. It also supported by his reported back pain at separation. The Board finds the Veteran credible in his reports about back and neck pain beginning in service to suggest a nexus via a continuity of symptomatology from back pain noted in March 1987, June 1991, and at separation in 2000. The evidence weighing against the claim is the November 2017 VA medical opinion. The VA examiner's opinion lacked a reasoned rationale because it merely listed evidence and stated a conclusion without tying it to the evidence. The examiner did not consider the competent and credible reports by the Veteran regarding back and neck pain symptoms continuing since service. Thus, the Board considers the medical opinion to be of limited probative value. For the above stated reasons, the evidence is in a state of relative equipoise regarding a continuity of symptomatology nexus. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). The benefit-of-the-doubt doctrine is for application, and service connection for cervical spondylosis is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for skin rash is remanded The Veteran seeks entitlement to service connection for a skin rash. The Veteran was provided a VA examination as to skin rash in September 2016. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). At that time the examiner confirmed a diagnosis seborrheic dermatitis. The examiner then concluded that the Veteran's present seborrheic dermatitis was not aggravated by service. The Board finds this opinion to be inadequate to fully adjudicate the claim. The examiner based the conclusion on the proposition the Veteran's skin rash clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression in service. The examiner did not explain why the Veteran's skin rash existed prior to service. In fact, the Veteran's July 1980 enlistment examination shows the Veteran skin was evaluated as normal. The examiner has not opined whether the present seborrheic dermatitis is at least as likely as not related to service, to include his in-service rashes. As such, on remand, an addendum opinion should be obtained which properly assesses the Veteran's skin rash. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner to assess the Veteran's skin rash. The examiner is asked to answer whether it is at least as likely as not that the Veteran's current skin rash was incurred in or is otherwise related to service. The examiner should address the Veteran's in-service treatments for rashes as well as the Veteran's statements regarding being subjected to heat, oil, soot, and sweating, during Desert Storm. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.