Citation Nr: 21007751 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-41 101 DATE: February 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for malignant melanoma, to include as due to exposure to Agent Orange, contaminated drinking water at Camp Lejeune, and sun exposure, is remanded. Entitlement to an initial rating in excess of 10 percent for non-obstructive coronary artery disease is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus was incurred or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). This matter was previously before the Board in November 2018, wherein the Board remanded for additional development. The case has returned to the Board for adjudication. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is the result of exposure to acoustic trauma during active duty service, specifically he states it is due to his time in the Republic of Vietnam when he was in and out of many helicopters. See June 2013 Correspondence. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (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 sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 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). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). While the Veteran has not been afforded a VA examination for his tinnitus, the Veteran has reported tinnitus and that he was exposed to hazardous noise in service. See June 2013 Correspondence. The Veteran is competent to report current tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the first element of service connection has been established. As to an in-service event, the Veteran’s service treatment records (STRs) are silent as to any complaints or treatment for tinnitus. However, the Veteran is competent to report the event that occurred during service, to include in-service noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As previously noted, the Veteran stated that he believes his impairment is due to his time in Vietnam. In his June 2013 correspondence, he explained that he has had ringing in his ears since he left service in 1969. He also stated that he did not have this problem before he went into service and overseas. In the November 2014 Veteran’s Form 9, Appeal to Board of Veteran’s Appeals, the Veteran reported that he continues to have ringing in his ears and that it is getting worse. As such, the Board finds that the Veteran’s assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such exposure. Accordingly, the second element of service connection has been established. In sum, the Veteran credibly contends that he incurred tinnitus during active service due to noise exposure due to helicopters during his deployment to Vietnam. He reported tinnitus since his time in the service. Therefore, after resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b). As such, based on the Veteran’s statements, a continuity of symptomatology of tinnitus has been established sufficient to satisfy the remaining element of service connection. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he has bilateral hearing loss due as a result of exposure to acoustic trauma during military service. As stated above, the Veteran indicated that his acoustic trauma is due to his time in the Republic of Vietnam when he was exposed to noise from the helicopters. The Veteran has not been afforded a VA examination for his bilateral hearing loss. VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a remand is required to accord the Veteran a competent medical examination and opinion to confirm the nature and etiology of his claimed bilateral hearing loss. 2. Entitlement to service connection for malignant melanoma The Veteran maintains that his melanoma is related to his service, to include due to his exposure to Agent Orange, or in the alternative, due to his exposure from contaminated drinking water during his service at Camp Lejeune or exposure to sunlight. See June 2013 Correspondence, December 2015 Correspondence, and January 2021 Appellate Brief. As an initial matter, the Veteran noted in his August 2020 Correspondence that he is still under his physician’s care because of another basal cell that was removed in July 2020. On remand, the RO should obtain these private treatment records relating to his skin disability. In October 2018, the Veteran’s representative submitted an Appellate Brief in which it was noted that medical literature supports that evidence exists, although inconclusive, for an increased risk of skin diseases including melanoma due to Agent Orange exposure. The representative referenced the article “Skin disease associated with Agent Orange and other organochlorine exposures.” The November 2018 Board decision remanded the issue for a VA examination and medical opinion. In this regard, a medical opinion was issued by the VA in December 2019. The Veteran, in his August 2020 correspondence, noted that he was not examined by the VA for his skin condition. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he stated that the Veteran had no issues related to the claimed malignant melanoma prior to military service. Herbicide exposure is not a known risk factor for melanoma and is not a presumptive diagnosis for herbicide-exposed veterans, and therefore, a nexus has not been established. Here, the December 2019 medical opinion is inadequate as the VA examiner indicated that because melanoma is not a presumptive diagnosis for Agent Orange exposure, a nexus cannot be established. In Combee v. Brown, the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The medical opinion is also inadequate because the examiner failed to discuss the article on skin diseases cited by the Veteran’s representative. The November 2018 Board remand instructions specifically requested that the VA examiner consider the article regarding skin disease and Agent Orange when forming their medical opinion. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Furthermore, the Veteran has alleged different theories of entitlement for service connection to melanoma, including as due to contaminated drinking water at Camp Lejeune and excessive sun exposure. A review of the Veteran’s military personnel records show that the Veteran was stationed at Camp Lejeune from April 1963 to May 1963 and from March 1964 to May 1965. Service connection may also be proven by presumption based on service in Camp Lejeune. Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served on Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). Malignant melanoma is not on the list of enumerated diseases. However, as noted above, per Combee, the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Service connection may still be granted on a direct basis. Exposure to contaminants in the water is conceded, as the Veteran's military personnel records confirm service of at least thirty days at Camp Lejeune during the specified timeframe. As melanoma is not on the presumptive list, the Board must consider whether entitlement to service connection can be granted on a direct basis. Additionally, the Veteran’s argues that because his active duty assignments were in relatively warm climates such as duty in Jamaica, Cuba and Puerto Rico, he was exposed to sunlight which caused his malignant melanoma. See January 2021 Appellate Brief. Military personnel records also confirm service in the Republic of Vietnam, which is another warm climate. As such, remand is warranted to provide an adequate VA examination and medical opinion that addresses all theories of entitlement. 3. Entitlement to an initial rating in excess of 10 percent for non-obstructive coronary artery disease The Veteran contends that his heart condition is more severe than the currently assigned 10 percent rating. The November 2018 Board decision remanded the issue to afford the Veteran an updated examination. The Veteran was examined by the VA in December 2019. The VA examiner noted that in addition to the Veteran’s non-obstructive coronary artery disease, he also had atrial fibrillation that was related to the service-connected diagnosis. Upon examination, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. However, in the January 2021 Appellate Brief, the Veteran’s representative noted that the Veteran reported that he sometimes has mild recurring shortness of breath with physical activity. In this regard, the Veteran should be afforded a new VA examination as he has indicated a worsening of symptoms. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from December 2014 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the issues on appeal. Specifically, the Veteran should be asked to provide records from his private dermatologist, to include records from July and August 2020, or in the alternative, provide a release so that VA can attempt to obtain those records. If he provides the necessary release, assist him in obtaining the records. All attempts to obtain these records and responses must be associated with the claims file. 3. Once the above, has been completed, arrange for a VA examination with a medical opinion to address the claim for service connection for bilateral hearing loss. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has bilateral hearing loss that: a) had its onset in service; b) otherwise incurred in service to specifically include the competently reported in-service noise exposure; or c) manifested to a compensable degree within one year of service? 4. Arrange for a VA examination with a medical opinion to address the claim for service connection for malignant melanoma. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (50 percent or greater probability) that the Veteran has malignant melanoma that: a) had an onset in service; or b) otherwise causally related to service, to include exposure to Agent Orange (herbicide agents), contaminated water at Camp Lejeune, and/or exposure to excessive sunlight? The examiner is also to be informed that exposure to Agent Orange (herbicide agents) and water contaminants at Camp Lejeune has been conceded. The VA examiner must include in the medical opinion, a discussion of the pertinent evidence of records, to include the cited article: “Skin disease associated with Agent Orange and other organochlorine exposures.” 5. Arrange for a VA examination with the appropriate medical professional to assess the severity of the service-connected heart condition. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to non-obstructive coronary artery disease and atrial fibrillation alone. The examiner should specifically assess the Veteran’s workload in METs and provide an ejection fraction reading. If a new stress test is contraindicated, and/or interview-based MET data is provided in lieu of a stress test, please explain why. The examiner must also determine which methodology is the most accurate reflection of the Veteran’s current cardiac status (i.e., METS data, ejection fraction, etc.). The examiners are requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. In considering any lay statements of record, the examiners should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiners cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.