Citation Nr: 21077228 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-50 545 DATE: December 29, 2021 ORDER Entitlement to service connection for a skin condition (claimed as shaving bumps and irritation), diagnosed as pseudofolliculitis barbae, is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for pes planus (flat fleet) is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran's pseudofolliculitis barbae had its onset during service. 2. The Veteran's tinnitus had its onset during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin condition, diagnosed as pseudofolliculitis barbae, are met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1983 to September 1983, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2016, July 2017, March 2018, and May 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The Board has recharacterized and broadened his "hearing" disability claim as reflected on the title page to include consideration of all ear disorders, specifically tinnitus, reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is 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, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 1. Entitlement to service connection for a skin condition (claimed as shaving bumps and irritation), diagnosed as pseudofolliculitis barbae, is granted. The Veteran seeks service connection for shaving bumps and irritation, which he asserts began during service and has been present since that time due to having to shave every day during service, which he did not do prior to service. See July 2017 Notice of Disagreement (NOD) and October 2021 Board Hearing Transcript at 17. Here, the Veteran is competent to report symptoms of shaving bumps and skin irritation (pseudofolliculitis barbae) as these symptoms are readily identifiable by a layperson. Thus, the first element of service connection is established. Regarding the second and third elements of service connection, in-service incurrence of a disease or injury and nexus, the Veteran's service treatment records (STRs) note the Veteran was placed on shaving profile and contain a diagnosis of pseudofolliculitis barbae. See September 1983 and July 1985 STRs. As the Veteran was first diagnosed with pseudofolliculitis barbae during service and he is competent to establish a current diagnosis of the disorder, a nexus between his current pseudofolliculitis barbae diagnosis and service is established. Thus, elements two and three of service connection are also met. There is no competent evidence to the contrary. Critically, pseudofolliculitis barbae is capable of lay observation, which was diagnosed during service. Accordingly, all elements of are met and service connection for a skin condition, diagnosed as pseudofolliculitis barbae, is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he asserts began during service and has been recurrent since that time due to working as a firefighter during service. Specifically, he asserts that he was routinely exposed to hazardous noise from high powered weaponry at the ranges, including grenades and rocket launchers, and noise from the firetrucks. See October 2021 Board Hearing Transcript at 3-6. Here, the May 2018 VA examination report reflects a diagnosis of tinnitus. Thus, the first element of service connection is established. Regarding the second element of service connection, while the Veteran's service treatment records are silent for tinnitus complaints, the Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his service while working on as a firefighter (see 38 U.S.C. § 1154(a)), and as detailed below, his report of an in-service incurrence of tinnitus is credible. Moreover, VA has conceded in-service acoustic trauma. Thus, the second element is also met. Regarding nexus, the Board has conceded acoustic trauma due to him working as a firefighter as noted above. Additionally, he has competently and credibly reported that he first experienced ringing in his ears during service as a result and continued to experience tinnitus since that time. See October 2021 Board Hearing Transcript at 3-5. There is no adequate competent evidence to the contrary. The Board acknowledges the May 2018 VA examiner rendered an opinion unfavorable to the Veteran's tinnitus claim, noting the Veteran's report of onset of tinnitus in 2017 and indicating the Veteran did not have a specific type of tinnitus; however, the examiner did not address the Veteran's conceded exposure to acoustic trauma while working as a firefighter during service. To this end, the Veteran has since clarified during his Board hearing, under oath, that he first noticed ringing in his ears during active duty in 1983, and the Board affords the Veteran the benefit of the doubt in this regard. Critically, tinnitus is capable of lay observation, and the Board finds the Veteran's report of an in-service onset of tinnitus credible. Thus, the negative VA opinion is inadequate and of no probative value for failure to consider the nature of the Veteran's service and his clarifying hearing testimony. Accordingly, element three of service connection is met, and service connection for tinnitus is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts his hearing loss had its onset during service due to working as a firefighter and constant exposure to hazardous noise from firetrucks and high powered weaponry, including grenades and rocket launchers, and that his hearing ability has progressively worsened since this time. The Veteran was afforded a VA hearing loss examination in May 2018. However, the examiner's opinion is inadequate as it did not address the Veteran's lay statements regarding continuity of hearing loss since service, documented in-service ear pain, or the possibility of delayed onset of hearing loss. Thus, on remand an addendum opinion is warranted to adequately address this issue. 4. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran asserts that his current eye disability is due to smoke irritation during service while in the supply field and working as a firefighter. An April 2018 Disability Benefit Questionnaire (DBQ) reveals diagnoses of blepharitis and dry eye syndrome; however, the VA examiner did not provide a nexus opinion. In this regard, the Board acknowledges that the Veteran recently submitted a September 2010 and November 2011 private treatment records noting the same diagnoses, along with conjunctivitis and meibomianitis and noting the Veteran's in-service smoke exposure; however, the additional diagnoses of conjunctivitis and meibomianitis pre-date the period on appeal. Moreover, the 2010 examiner noted the etiology of his eye disability was unknown, and the 2011 examiner merely documented the Veteran's statement of his belief that the condition was due to service, which cannot support a nexus. See Leshore v. Brown, 8 Vet. App. 406 (1995)(the examiner's bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). On remand an updated VA examination and medical opinion is warranted to clarify and etiology of his eye disorders present during the appeal period. 5. Entitlement to service connection for migraine headaches is remanded. The Veteran maintains that his migraine headaches were incurred during service. Specifically, he asserts that he began to have headaches during service due to the loud noises to which he was constantly exposed. See July 2017 NOD and October 2021 Board Hearing Transcript at 16. Moreover, the record raises the possibility that his headaches could potentially be related to his smoke exposure while working as a firefighter during service. To this end, he maintains that he experienced headaches continuously since that time. The Veteran is competent enough to report headaches and his exposure to in-service smoke is conceded. Thus, the Board finds a VA examination and medical opinion is warranted on remand to determine the etiology his headaches. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 6. Entitlement to service connection for a back disability is remanded. 7. Entitlement to service connection for a bilateral hip disability is remanded. The Veteran maintains that his back and bilateral hip disabilities are due to the cumulative impact of constantly carrying a 50-pound rucksack on his back while performing his duties during service including while marching, standing, running, climbing obstacles, and jumping, and that he was only relieved of this weight from his back at nighttime. As a result, he asserts that he began to experience back and hip pain that has continued since that time. See October 2021 Board Hearing Transcript at 12. Private treatment and VA records show current diagnoses of intervertebral disc displacement, hip replacement, lumbar radiculopathy, osteoarthritis of the hip, and lumbar and hip pain. Moreover, recurrent injuries to his back and bilateral hips are conceded as consistent with circumstances of his service. Thus, given the current diagnoses and the conceded cumulative impact injury, the Board finds a VA examination and medical opinion is warranted. McLendon, 20 Vet. App. 79, 83. 8. Entitlement to service connection for pes planus (flat fleet) is remanded. 9. Entitlement to service connection for a right ankle disability is remanded. 10. Entitlement to service connection for a left ankle disability is remanded. The Veteran maintains that his pes planus and bilateral ankle disabilities are due to the cumulative impact of a lot of marching, running, physical fitness, and physical training on a regular basis. As a result, he asserts that he sustained injuries to his feet and ankles due to his ankles rolling while marching and standing on feet all day in combat boots on asphalt, obstacles on physical training field which required a lot of twisting, grinding, stooping, and bending, offloading and loading trucks while making five feet jumps up and down, and jumping off helicopters for training and that resulted in pain that he continues to experience post-service. See October 2021 Board Hearing Transcript at 7-9. Recently the Court of Appeals for Veterans Claims held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition. In this regard, the Veteran has reported continuous bilateral feet and ankle pain with its onset during service and continuing since service and indicated that this pain limits his functional ability. Additionally, the Board concedes a cumulative impact injury to his bilateral feet and ankles as consistent with the circumstances of his service. Thus, the Board finds that a VA examination and a medical nexus opinion is warranted on remand to determine the etiology of any current bilateral feet or ankle disability and any pain that results in functional impairment. McLendon, 20 Vet. App. 79, 83; see also Saunders, 886 F.3d 1356. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from a VA examiner other than May 2018 VA examiner to determine the nature and etiology of his bilateral hearing loss disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to service. In addressing this question, the examiner must discuss: (a) the Veteran's conceded in-service noise injury; (b) documented ear pain in service in May 1983; (c) any threshold shifts between the Veteran's 1983 and 1988 hearing examinations; (d) the possibility of delayed-onset hearing loss; and (e) the Veteran's assertions, which you are to assume are true, that his hearing acuity has steadily declined since service. See October 2021 Board Hearing Transcript. The examiner must assume this statement as true, even despite the absence of "objective documentation". Please state whether a nexus between the Veteran's bilateral hearing loss and service is medically consistent with the symptomatology reported by the Veteran in part (e) above. Otherwise, the opinion will be returned as inadequate. Please also note that the Veteran is service-connected for tinnitus. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then obtain a VA examination and medical opinion to determine the nature and etiology of his bilateral eye disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner should: (a) Diagnose all eye disorders present since April 2016, to include bilateral blepharitis and dry eye syndrome (see January 2018 DBQ). The examiner should also indicate whether conjunctivitis and meibomianitis (see 2010 and 2011 private treatment records) have been present at any point since April 2016. (b) For each eye disability diagnosed in part (a), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disorder had its onset during service or is otherwise related to service, to include as a result of exposure to smoke and chemical fumes due to working as a firefighter during service. In addressing this question, the examiner must discuss: (1) the Veteran's conceded exposure to smoke and chemical fumes; (2) the April 1988 eye injury due to smoke irritation from firefighting; (3) the Veteran's assertions, which you are to assume are true, of continuous eye symptomatology since service. See October 2021 Board Hearing Transcript; and (4) the medical literature submitted by the Veteran in October 2021. Please state whether a nexus between the Veteran's bilateral eye disability and service is medically consistent with the symptomatology reported by the Veteran in part (b)(3) above. Otherwise, the opinion will be returned as inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of any headache disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (c) Diagnose any headache disability present since February 2017. (d) For any headache disability diagnosed in part (a), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result of a concede in-service noise injury and/or conceded exposure to smoke and chemical fumes therein. In addressing this opinion, please assume as true the Veteran's report that his headaches began in service and continued since that time and determine whether a nexus to service is "medically plausible" based on the same. Otherwise, the opinion will be returned as inadequate. A complete rationale should be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Then schedule the Veteran for a VA examination to determine the nature and etiology of any back and bilateral hip disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Diagnose any back and bilateral hip disability present since April 2016, to include intervertebral disc displacement, hip replacement, lumbar radiculopathy, and osteoarthritis of the hip. If any of the diagnoses are not warranted, reconcile your findings with diagnoses of the same in his private and VA treatment records. Additionally, if no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported back and bilateral hip pain causes any functional impairment. (b) For each disability diagnosed in part (a), or any functional impairment identified, please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result of the conceded cumulative impact injury from constantly carrying a 50-pound rucksack on his back while performing his duties including while marching, standing, running, climbing obstacles, and jumping. In addressing this opinion, please assume as true the Veteran's report that his back and bilateral hip pain began as a result of marching, standing, running, climbing, and jumping while carrying a 50-pound rucksack and has continued since that time, and that he did not seek medical assistance because he wanted to toughen it out as was expected, and determine whether a nexus to service is "medically plausible" based on the same. A complete rationale should be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. Then schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral foot and bilateral ankle disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Diagnose any bilateral foot and bilateral ankle disability present since February 2018. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported bilateral foot and ankle pain causes any functional impairment. (b) For each disability diagnosed in part (a), or any functional impairment identified, please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result of the conceded cumulative impact injury from marching, running, physical fitness, and physical training, ankles rolling while marching, standing on feet all day in combat boots on asphalt, obstacles on physical training field which required a lot of twisting, grinding, stooping, and bending, offloading and loading trucks while making five feet jumps up and down, and jumping off helicopters for training. In addressing this opinion, please assume as true the Veteran's report that his bilateral foot and bilateral ankle pain began as a result of the above-reported duties and has continued since that time, and that he did not seek medical assistance because he wanted to toughen it out as was expected, and determine whether a nexus to service is "medically plausible" based on the same. A complete rationale should be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.