Citation Nr: A21020114 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200616-95662 DATE: December 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to active service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to July 1970, with service in the Republic of Vietnam from January 1969 to August 1969. As to the issues of entitlement to service connection for tinnitus and a skin disorder, the rating decision on appeal was issued in January 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. As to the issues of entitlement to service connection for bilateral hearing loss and migraines, in December 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a September 2019 rating decision based on new and relevant evidence. In May 2020, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received and denied each claim on the merits, based on the evidence of record at the time of that decision. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the January 2020 and May 2020 AOJ decisions on appeal, as well as any evidence submitted by the Veteran or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. These matters, entitlement to service connection for bilateral hearing loss, tinnitus, migraines, and a skin disorder, were previously before the Board. Specifically, in October 2020, the Board denied the claims. The Veteran appealed the Board's October 2020 denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2021, the Court granted a June 2021 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board's October 2020 decision, and remanded the case to the Board for readjudication consistent with the JMR. These matters now return for appellate review. As to the Veteran's representation, in November 2021, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of The American Legion, thereby revoking a previous consent to representation by a private attorney. The American Legion has been recognized as the Veteran's representative and submitted a November 2021 Informal Hearing Presentation (IHP) on his behalf in support of this appeal, so the Board recognizes The American Legion as the Veteran's representative. 38 C.F.R. § 20.1304 (b). VA correspondence dated August 2, 2021 has been issued to the Veteran and his then representative, informing the Veteran that he may submit any additional argument within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issues vacated by the Court. No response was received by VA from either the Veteran or his then representative; however, the 90-day period has elapsed. In addition, although another notice letter, providing 90 days to submit argument, was not sent to The American Legion, the August 2, 2021 notice letter was explicitly refenced in the November 2021 IHP. Further, additional argument was, in fact, provided in the November 2021 IHP. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection for bilateral hearing loss and tinnitus, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant as to the claims of service connection for bilateral hearing loss and tinnitus, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Additionally, as the Board is remanding the claims of service connection for migraines and a skin disorder for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims. Service Connection Generally, 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; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, 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). In addition, certain chronic diseases, such as sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1112, 1113; 38C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38C.F.R. §3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts his hearing loss and tinnitus are related in-service noise exposure. Specifically, in statements received by VA in December 2019 and June 2020, the Veteran described, while in Vietnam, he was at Dong Tam Base in the Mekong Delta, and his barracks were near the heliport, which had loud helicopters taking off and landing frequently. He also described there were 105 and 155 howitzers nearby and the base took a lot of incoming mortar rounds and rocket fire. The question for the Board is whether the Veteran has a current disability of bilateral hearing loss and/or tinnitus, that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether he has bilateral hearing loss and/or tinnitus which is otherwise shown to be etiologically related to an in-service injury, event, or disease. As to the existence of current disability, the January 2020 rating decision provided a favorable finding as to a diagnosis of tinnitus. Specifically, the January 2020 rating decision noted the January 2020 hearing loss and tinnitus disability benefits questionnaire (DBQ) documented a diagnosis of tinnitus. Similarly, the May 2020 rating decision provided a favorable finding as to the existence of current disability for bilateral hearing loss. Specifically, the May 2020 rating decision noted the September 2019 hearing loss and tinnitus DBQ documented hearing loss for VA purposes. Furthermore, as discussed above, the Veteran reported noise exposure during service in the Republic of Vietnam from January 1969 to August 1969. As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for bilateral hearing loss and tinnitus. Thus, the question becomes whether the Veteran's current diagnoses of bilateral hearing loss and tinnitus are related to his active duty service, to include in-service noise exposure. As to an etiological relationship between the Veteran's bilateral hearing loss and service, an August 2019 VA examiner found the Veteran's right ear and left ear hearing loss were less likely than not caused by or a result of an event in military service. As a rationale, the August 2019 VA examiner found the Veteran's entrance and exit examination were normal and his military occupational specialty (MOS) was a supply clerk. As to the Veteran's tinnitus, the August 2019 VA examiner found the Veteran's tinnitus was also less likely than not caused by or a result of military noise exposure as his records did not reflect a problem during service. Similarly, a VA examiner provided an negative nexus opinion in January 2020, which addressed tinnitus, and a negative nexus opinion in April 2020, which addressed hearing loss. The January 2020 and April 2020 VA opinions explained there was no significant shift in the Veteran's hearing from enlistment to separation beyond test variability and there was evidence of no permanent auditory damage from conceded noise on active duty. The January 2020 and April 2020 VA opinions further explained there was no report of tinnitus, acoustic trauma, or hearing loss at separation, and the Veteran had a MOS with low probability of hazardous noise exposure. The January 2020 and April 2020 VA opinions also generally explained that although noise exposure was conceded, and the relationship between noise, auditory damage, and tinnitus, was well documented, there must be a nexus of auditory damage to relate active duty noise to either bilateral hearing loss or tinnitus, and the objective evidence was against a nexus. However, initially the Board notes the lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the August 2019, January 2020, and April 2020 VA opinions reliance on this finding lessens the probative value of the opinions. Further, there is no indication the August 2019, January 2020, and April 2020 VA opinions converted the Veteran's February 1967 separation in-service audiometric testing from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units. As it relates to VA examinations and VA records, including audiological reports dated between January 1, 1967 and December 31, 1970, the Board will consider the recorded metrics under both ASA and ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran's appeal. In this regard, the Veteran's July 1968 examination, obtained in conjunction with his enlistment into service, demonstrated a degree of right and left ear hearing loss per Hensley when converted ISO-ANSI units at the frequency of 500 Hertz. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). However, these findings do not demonstrate hearing loss for VA purposes and as hearing loss of either ear was not identified as a defect and/or diagnosis during the July 1968 examination, the presumption of soundness applies. See McKinney v. McDonald, 28 Vet. App. 15 (2016). Further, review of the May 2070 examination, conducted in conjunction with the Veteran's separation from service, again reflects, as to the Veteran's right ear, a degree of hearing loss per Hensley when converted ISO-ANSI units at the frequency of 500 Hertz. Hensley, 5 Vet. App. at 159. Although this finding does not demonstrate hearing loss for VA purposes, it does demonstrate a degree of hearing loss per Hensley, which not addressed by the August 2019, January 2020, and April 2020 VA opinions. This also lessens the probative value of the August 2019, January 2020, and April 2020 VA opinions. Additionally, the August 2019 hearing loss and tinnitus DBQ noted the Veteran was unaware of the onset of his hearing loss; however, notably, the report also documented that the Veteran did report his hearing loss caused him problems in his post service employment as an attorney. As to the Veteran's tinnitus, the August 2019 hearing loss and tinnitus DBQ noted the Veteran was unaware of the onset of his constant bilateral tinnitus. The January 2020 hearing loss and tinnitus DBQ also documented as to the Veteran's tinnitus, the circumstances of onset were unclear, but notably, it was also documented that his tinnitus onset in the 1970s. In this regard, Veteran is competent to testify as to observable symptoms such as diminished hearing and ringing in the ears, because these symptoms are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the August 2019 hearing loss and tinnitus DBQ, documented the Veteran reported using a chain saw sometimes with ear protection and post service he became an attorney. The January 2020 hearing loss and tinnitus DBQ also noted post separation, Veteran worked as an attorney and denied recreational noise exposure. Additionally, in a statement received by VA in June 2020, the Veteran explained that since separation from service, he had worked in an office environment and had not experienced repeated exposure to loud noises. The Board finds the Veteran's general statements regarding the longstanding nature of his symptoms pertaining to his bilateral hearing loss and tinnitus, and his statements of no post service noise exposure, to be credible and they are accorded significant evidentiary weight. 38 C.F.R. §§ 3.303 (b), 3.309 (a). Moreover, as noted by the June 2021 JMR, in June 2020, a medical treatise was received by VA, and this treatise indicated, in part, tinnitus and hearing loss were both associated with high levels of noise. This finding is relevant as the Veteran only has reported in-service noise exposure, and thus, tends to link the Veteran's in-service noise exposure to his bilateral hearing loss and tinnitus. Thus, given the evidence outlined above, the Board is of the opinion that the point of relative equipoise has been reached in these claims. The evidence of record shows that the Veteran presently has bilateral hearing loss and tinnitus, with evidence of in-service noise exposure, and evidence that the Veteran experienced a degree of hearing loss which onset during service, which coupled with the Veteran's competent and credible reports of hearing loss and tinnitus of a long standing nature, and no incurrent noise exposure, leads the Board to conclude that the Veteran's current bilateral hearing loss and tinnitus are related to active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for migraines is remanded. This issue is remanded to correct a duty to assist error that occurred prior to the May 2020 rating decision on appeal. In this regard, the June 2021 JMR found the May 2020 VA opinion inadequate because it was factually inaccurate. Specifically, the May 2020 VA opinion stated that there were no records to support migraine headaches in service, and did not acknowledge the April 1970 service treatment record noting periodic frontal headaches "usually in the P.M." See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is required to obtain a new VA medical opinion that accounts for the foregoing evidence. Barr v. Nicholson, 21 Vet. App. 303, 309 (2011). 2. Entitlement to service connection for a skin disorder is remanded. This issue is remanded to correct a duty to assist error that occurred prior to the January 2020 rating decision on appeal. Specifically a VA examination was not obtained, which is necessary to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this regard, the June 2021 JMR found the Board provided an inadequate statement of reasons or bases for concluding that a medical examination was not necessary to decide the claim. The June 2021 JMR also noted, in a December 2019 statement, the Veteran reported he had very dry and itchy skin on his legs, arms and torso, which developed within one year of service, if not earlier. The June 2021 JMR also noted, in a December 2019 statement, the Veteran's spouse confirmed the Veteran had dry and itchy skin, which onset during his when he was stationed in Hawaii. As, prior to the rating decision on appeal, there was at least an indication of persistent or recurrent symptoms of a disability, an in-service event, and a link between a skin disability and service, the Board finds that a VA examination and opinion is warranted on remand. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's migraines, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support the opinion, to the following: Whether the Veteran's migraines are at least as likely as not related to service, including with consideration of an April 1970 service treatment record, which noted periodic frontal headaches "usually in the P.M." Please explain. 2. Schedule the Veteran for a VA examination and a medical opinion for his claimed skin disability. The clinician should review the claims folder in connection with the examination and medical opinion and is asked to provide a response to the following: a. Please identify all skin disabilities by diagnosis or functional impairment in earning capacity; and b. As to each skin disability, please provide an opinion as to whether it is at least as likely as not related to service, including with consideration of December 2019 statements of the Veteran and his spouse, which indicated that the Veteran's skin disability onset during service or shortly after separation from service. Please explain. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.