Citation Nr: 21007526 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-35 366 DATE: February 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED In addition, entitlement to service connection for the following issues are remanded: erythema annulare centrifugum (EAC), also claimed as a skin condition; and a right knee condition. FINDINGS OF FACT 1. The probative evidence of record establishes that the Veteran’s tinnitus is etiologically related to service. 2. The probative evidence of record does not demonstrate that the Veteran has hearing loss that meets VA’s definition of disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines from August 1972 to September 1974. In June 2019, the Veteran testified at a hearing from St. Petersburg, Florida before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran’s claims were most recently before the Board of Veterans’ Appeals (Board) in September 2019 wherein they were remanded to the agency of original jurisdiction (AOJ) for additional development. This development was completed and the claims have returned to the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection generally requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as bilateral hearing loss and tinnitus, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).) 1. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus that is related to service. The Veteran has a current diagnosis of tinnitus and he was exposed to noise trauma during service. Therefore, the first two elements of service connection are met. Shedden, supra. The question now turns to whether the tinnitus is related to service. The Veteran has given conflicting statements about the onset of his tinnitus. At his September 2013 VA examination, he stated that he has experienced a hissing noise in both ears since he was in the service. At his hearing, he testified that he “always” had ringing in his ears but also noticed ringing in his ears three to five years after service. The Board resolves the conflicting evidence in favor of the Veteran. He is competent to attest to his symptoms beginning in service, and lasting through the present, given that tinnitus is wholly capable of lay observation. Therefore, the weight of the evidence is for the claim for service connection for tinnitus. Thus, the claim is granted. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has hearing loss that is related to service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in connection with his claim in September 2013. At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 20 20 LEFT 20 30 30 25 20 Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 94 percent in both ears. Using these scores, the Veteran does not meet any of the three definitions for disability under 38 C.F.R. § 3.385. Given the Board’s remand, the Veteran was afforded a VA examination in connection with his claim in December 2019. At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 25 30 LEFT 15 20 25 20 25 Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 96 percent in the right ear and 98 in the left ear. Using these scores, the Veteran does not meet any of the three definitions for disability under 38 C.F.R. § 3.385. While the Veteran may indeed experience a decreased ability to hear in his ears, it has not risen to the level of severity that qualifies as a disability for VA compensation purposes. In light of this, the weight of the evidence is against the claim for service connection. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 3. Entitlement to service connection for EAC, also claimed as a skin condition, is remanded; and, 4. Entitlement to service connection for a right knee condition is remanded. While the AOJ complied with the Board’s remand request, the Board finds the medical opinions to be inadequate. The Veteran contends that as a result of his service, he had a reaction to multiple insect bites, that were later infected, and he developed Lyme disease. As a result, he developed EAC (a skin condition) and arthritis of his knee. The Veteran contends that because Lyme disease was first discovered in 1975, it could not have been diagnosed in service. The VA examiner in September 2013 reviewed both the knee and EAC condition and found that they were less likely than not related to service. Regarding the knee, the examiner did not find any diagnosis or complaints for any knee condition in the Veteran’s recent medical records, but did note complaints of cellulitis in service. Regarding the EAC condition, the examiner noted that the cellulitis which occurred in service as a result of insect bites had resolved and it is not connected to EAC. Further, there was no widespread chest rash in service. The Board found the opinion to be inadequate because it did not make clear whether it considered a November 1973 record where the Veteran “complained of lesions over most of body.” While the record indicates that the Veteran had “cellulitis from infected insect bites,” there were other indications of allergic reactions, cellulitis, and infected insect bites and stings in the record. (Pain in the right knee in September 1972; cellulitis in the right knee in November 1972; infections in the leg in December 1973; allergic reactions to bee stings in May 1974; and complaints of lesions all over his body in November 1973). See document labeled Medical Treatment Record – Government Facility, received October 31, 2012, pages 12, 15, 17, and 19 of 23. In July 2016, the Veteran’s treating physician submitted correspondence wherein she stated that she could not offer an opinion as to whether the Veteran’s EAC was related to service without resorting to mere speculation. In support she stated as follows: “EAC may be caused by food, infections, ([Veteran] had cellulitis), drugs, cancer, cirrhosis, Grave’s disease, appendicitis, lupus, pregnancy, hormones, and Lyme disease. [The Veteran] had insect bites with resulting cellulitis. No mention of Lyme disease. Current Lyme antibodies are negative (non-reactive).” The Board noted that while the correspondence stated that EAC may be caused by several factors, it specifically noted infections and Lyme disease. Further, that while the opinion stated that the Veteran developed cellulitis, it was unclear if the opinion found that because the Veteran only had cellulitis, he did not also have EAC. Further, the opinion did not clarify if the Veteran ever had reactive Lyme antibodies nor did it address the Veteran’s contention that Lyme disease could not have been diagnosed in service because it was not yet discovered. As a result of the conflicting medical evidence of record, the Board remanded the Veteran’s claims for a medical examination and opinion. As for the Veteran’s skin condition, a December 2019 clinician found a diagnosis of EAC and explained as follows: “Veteran reports a long history of rashes to the anterior chest wall present since active military service. Per the Veteran, these rashes began at the end of active service and continue to current day. Veteran reports he has been diagnosed with dermatitis, fungal infections, and EAC.” The Veteran further stated as follows: “Veteran reports spending time in the woods and swamp [during service] for 2 weeks per occurrence. Veteran states when they would return from this time in the woods all service members would take turns removing hundreds of ticks from each other also experiencing nausea, vomiting, and headaches at that time.” While the clinician noted previous Lyme Disease pathology results, it did not provide a current or past diagnosis Lyme Disease. The clinician also noted the following from a June 2012 VA dermatology visit: “Intermittent eruption since 1973 of annular skin rash; today oval, annular erythematous plaque of right chest; small erythematous plaque (not annular) of left chest. Surgical pathology report from punch biopsy left chest skin lesion. Punch biopsy shows a relatively normal appearing epidermis. There is prominent superficial and deep dermal perivascular lymphohistiocytic inflammation. No granulomataor necrobiosis is identified. Special stain for fungus is negative. The histological features are most consistent with EAC. Other perivascular dermatitis including erythema chronicum migrans (Lyme disease), erythema multiforme, and erythema gyratum repens were considered in the differential diagnosis but appear less likely.” As for the Veteran’s right knee, the same clinician diagnosed arthritis of the right knee. The Veteran reported the following: “Veteran reports diminished range of motion along with occasional pain in the right knee since active military service (in 1972) while in boot camp… Veteran reports he was diagnosed with cellulitis of the right knee during that period of time as a result of multiple insect bites. Per the Veteran, after boot camp he was treated for the cellulitis by a civilian dermatologist that provided him with topical antibiotic therapy and advised Veteran to stay out of the bush for complete healing.” He continued: “Veteran reports he provided this documentation (from dermatologist) to his platoon lieutenant. Veteran states this note was disregarded and he was sent back to the austere environment and cellulitis around the right knee continued to worsen. Veteran states he received this treatment from a Dermatologist his mother worked for during Veteran’s active duty but unfortunately none of these records have been made available for review. Veteran reports condition persistent and progressed and remained during active duty military service. Per the Veteran it was not until he left active duty, and could appropriately treat the cellulitis at the knee, that condition finally resolved. Veteran states post discharge he was treated with oral and topical antibiotic therapy for a course of 6 months before there was resolution. The described condition during active duty is not a condition of the knee but of the soft tissue surrounding the knee. There is no evidence in the provided claims file to suggest the infection of the soft tissue spread to the knee joint.” The clinician then rendered an opinion that found that neither the EAC or right knee condition were related to service. The clinician explained the definition, cause, and diagnostic measures needed to diagnosis EAC and Lyme Disease. First regarding the Veteran’s skin condition, the clinician found that while the Veteran has a current diagnosis of EAC, because there are so many possible causes for EAC, it is not possible to state with 50 percent or greater certainty that EAC is related to a distant diagnosis of cellulitis because the majority of EAC cases are idiopathic. Further, EAC is not related to Lyme Disease because the Veteran never had appropriate Lyme antibody testing, past or present, to confirm a diagnosis. The Board finds the opinion to be inadequate for several reasons. First, while the examiner finds that the EAC is idiopathic and there are many different causes, the probative evidence only finds that two of the causes apply to the Veteran: infections and Lyme Disease. Second, the June 2012 Dermatology note indicates that the Veteran’s skin condition “histological features are most consistent with EAC.” The clinician did not discuss this medical record in finding that EAC was not related to service. Finally, the clinician noted that the Veteran never tested positive under CDC guidelines for Lyme Disease. However, the clinician did not answer the question of whether Lyme Disease could have been diagnosed prior to 1975—that the diagnostic criteria did not exist during the Veteran’s service and he could not have possibly have a diagnosis of Lyme Disease during service. Further, the clinician did not answer whether the Veteran’s noted symptoms during service indicated the presence of Lyme Disease (“would take turns removing hundreds of ticks from each other; also experiencing nausea, vomiting, and headaches at that time) and whether a person can carry a diagnosis of Lyme Disease, but the disease and reactive proteins would be dormant. Turning to the Veteran’s right knee, the clinician stated that the Veteran is diagnosed with osteoarthritis which can be explained by the natural course of aging. As for the described condition during service, this was related to the soft tissue of the knee and related to cellulitis which has resolved. However, the Veteran has complained of knee pain since service and believes the reactive proteins from Lyme causes his present knee pain. The Veteran is competent to report knee pain since service. As explained above, the issue of whether the Veteran has had Lyme Disease has not been satisfied; thus, a remand is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a clinician familiar with infectious diseases, to include Lyme Disease. The clinician should be provided a copy of this remand and review the medical record. Thereafter, the clinician should answer the following questions: a. Could Lyme Disease have been diagnosed prior 1975—that the diagnostic criteria did not exist during the Veteran’s service (which ended in 1974) such that a diagnosis of Lyme Disease could not have been rendered during service? b. Is it possible to diagnose Lyme Disease outside of anti-body testing? c. Can Lyme Disease, once contracted, enter a period of remission such that it would fail diagnostic criteria, but still be symptomatic? d. Given the above and the following description of symptoms, is it at least as likely as not that the Veteran contracted Lyme Disease during service? “Veteran reports a long history of rashes to the anterior chest wall present since active military service. Per the Veteran, these rashes began at the end of active service and continue to current day. Veteran reports he has been diagnosed with dermatitis, fungal infections, and EAC. Veteran reports spending time in the woods and swamp for 2 weeks per occurrence. Veteran states when they would return from this time in the woods all Service Members would take turns removing hundreds of ticks from each other also experiencing nausea, vomiting, and headaches at that time.” The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Thereafter, obtain an addendum opinion from a dermatologist on whether the Veteran’s EAC is at least as likely as not related to service, to include as a result of infection of Lyme disease. The clinician should address the response returned on Lyme Disease. The clinician should be provided a copy of this remand and review the medical record. Thereafter, the clinician should answer the following question: a. Is it at least as likely as not that the Veteran’s EAC condition occurred during service, has existed since service, or is otherwise related to service, to include Lyme Disease? Note that lack of a diagnosis during service alone is not sufficient to render a negative response. The clinician should address the Veteran’s reports that he has had a rash on his chest since service; the June 2012 VA dermatology appointment which states “histological features are most consistent with EAC”; and the July 2016 dermatologist statement that provides the various causes of EAC, but that the only causes the Veteran has purportedly experienced are infections (cellulitis) and Lyme Disease. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, obtain an addendum opinion from a rheumatologist on whether the Veteran’s right knee condition is at least as likely as not related to service, to include as a result of infection of Lyme disease. The clinician should address the response returned about Lyme Disease. The clinician should be provided a copy of this remand and review the medical record. Thereafter, the clinician should answer the following question: a. Is it at least as likely as not that the Veteran’s soft tissue condition of the right knee is at least as likely as not related to service, to include Lyme Disease or cellulitis during service? The examiner is advised that while the Veteran may not have a formal diagnosis related to the soft tissue of his right knee, pain alone can be considered a disability if it results in a functional impairment of earning capacity. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.