Citation Nr: 21007973 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-01 692 DATE: February 11, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for skin disorder is denied. FINDINGS OF FACT 1. The weight of the evidence shows that it is at least as likely as not that the Veteran’s tinnitus was incurred in service. 2. The weight of the evidence shows that it is at least as likely as not that the Veteran’s hearing difficulties had onset contemporaneously with his exposure to extreme military noise, the associated symptomatology has continued ever since then and has progressively worsened until clinically diagnosed as hearing loss. 3. The weight of the evidence fails to show that it is at least as likely as not that the Veteran’s current skin disorder was incurred in, caused by, or otherwise is etiologically related to any in-service trauma, to include his presumptive exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for service connection for skin disorder have not been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from March 1965 to March 1967, to include his service in the Republic of Vietnam from August 1965 to September 1966. In a July 2018 rating decision, the Regional Office (RO) denied his claims for service connection for bilateral hearing loss and skin disorder. The Veteran appealed. In January 2021, the Veteran testified via a Board’s telephonic hearing, a transcript of which is of record. Of preliminary note, in any given case, a veteran without specialized medical training is not expected to advance his or her claim with a precision expected of medical professionals. Rather, a veteran is said to have sufficiently filed a claim for benefits by either referring to a disabled body system or describing the associated symptoms. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). To that end, instead of focusing on how precisely the claim is worded, the Board must consider the claim as a whole and view it in light of the veteran’s description of the symptoms, so as to meaningfully understand the nature of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In accordance with the law, upon considering the Veteran’s testimony as to experiencing hearing problems, to include ringing in his ears, the Board finds that his claim for hearing loss should have been construed more broadly to include bilateral hearing loss and tinnitus. Upon further considering all evidence of record viewed as a whole and in light of pertinent laws, the Board has found that service connection for bilateral hearing loss and tinnitus is warranted, while service connection for skin disorder must be denied. Tinnitus At the Board’s hearing, the Veteran stated under oath that he served as a helicopter repairman and was exposed to loud mechanical noise as well as combat munitions noise during his tour of duty in the Republic of Vietnam. This is when the Veteran began to experience ringing in his ears that “sounded like small buzzing crickets,” which has continued to the present day. The Veteran at some length described the details of his combat experience and his exposure to loud military noises, however, without ever being provided any hearing protection. Given the amount of detail the Veteran provided during his testimony and its consistency with the circumstances of his combat service and his military occupational specialty, as reflected in his military personnel file, the Board finds that the Veteran’s testimony is credible. The cases, like this, where the Veteran reports the onset of tinnitus in service, ultimately turn on the credibility of his statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, absent any affirmative evidence to the contrary, the Board finds that service connection for tinnitus is warranted and thus is granted. Hearing loss In seeking service connection for hearing loss, the Veteran is contending that his hearing has gradually declined over the years ever since his exposure to military noise leading to his present severity levels requiring him to wear hearing aids. At the Board’s hearing, the Veteran testified that he was exposed to various types of loud mechanical and artillery munition noises in service. In support of his claim, the Veteran’s daughter stated under oath that the Veteran always has had exhibited difficulty hearing her and other people, as far back as she can remember into her early childhood. For example, particularly during the Veteran’s in-person conversations, he had to look directly at a person in order to understand what was said. Service connection for hearing loss is generally granted, when the evidence of record shows that the current “disability due to hearing impairment,” as defined by VA in 38 C.F.R. § 3.385, is at least as likely as not was incurred in service or is etiologically related to an in-service acoustic trauma. See 38 C.F.R. § 3.303(d). Of note, the Veteran’s current hearing acuity thresholds do meet the VA’s definition of a “disability due to hearing impairment. However, his service treatment records (STRs) reflect that, upon separation from service in March 1967, his hearing acuity thresholds were within the normal ranges. As such, this evidence affirmatively shows that the Veteran’s current “disability due to hearing impairment” was not per se incurred in service. Nonetheless, the VA regulations do not preclude a grant of service connection for hearing loss when the VA’s definition of disability is first met after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In cases, like this, where hearing acuity thresholds during service are shown within the normal ranges, service connection may be established on the basis of so-called continuity of symptomatology doctrine, under which the evidence must show an onset of symptomatology sufficient to identify the nature of the disability and the continuation of its symptoms until it is clinically diagnosed as such at a later date. See 38 C.F.R. §§ 3.303(b), 3.309(a). This is precisely the case here. Here, upon considering the Veteran’s credible report of initial onset of hearing difficulties during his deployment to Vietnam and continuing ever since then, the Board notes that the February 1967 separation physical examination report is devoid of any indication which audiological testing standard was actually used. In hearing loss cases, like this, involving the period of service between January 1967 and December 1970, during which the military had transitioned from the American Standards Association (ASA) to the current audiometry standard, namely, the International Standard Organization-American National Standards Institute (ISO-ANSI), it is the Board’s policy to apply the standard that is most favorable to the Veteran. Upon conversion from ASA to ISO-ANSI units, a comparison of the Veteran’s 1967 audiometric data recorded at separation and the data recorded upon his entry into service in March 1965 shows a positive shift in his hearing acuity thresholds in every frequency bilaterally, including a shift of as much as 15 decibels. Such a shift is indicative of an acoustic trauma consistent with the Veteran’s exposure to the extreme military noise levels. The Veteran credibly testified that his hearing difficulties have continued ever since that exposure, which is corroborated by his daughter’s statements made under oath. Subsequently, the Veteran’s hearing has been progressively worsening until the Veteran’s hearing acuity thresholds, as assessed by a March 2018 VA audiometric testing, have met the VA’s definition of “disability due to hearing impairment.” As such, the legal criteria for service connection for bilateral hearing loss have been met. 38 C.F.R. 3.303(b). The Board acknowledges a March 2018 VA audiologist’s negative nexus opinion, who appears to have been unaware of the Board’s audiometric data conversion policy. By implication, that particular opinion is based only on partial information and thus has little to no probative value here. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Otherwise, the record is devoid of any affirmative evidence to place into doubt the Board’s finding that the Veteran’s current hearing loss disability is at least as likely as not etiologically related to his military noise exposure, as has been established by the continuity of his symptomatology here. Accordingly, service connection for hearing loss is granted. Skin disorder In seeking service connection, the Veteran is contending in his May 2019 Notice of Disagreement that he has black mole-like lesions on his back due to his exposure to herbicide agents, such as Agent Orange, during his thirteen-month-long tour of duty in the Republic of Vietnam. Of note here is a June 2017 Veteran’s statement expressing his belief that no proper study had been done to determine what effect Agent Orange might have on humans. At the Board’s hearing, the Veteran reported that these lesions had onset on his back approximately 4-5 years after service and more recently have spread further to his neck and head. The Veteran then stated that he has been trying to see a dermatologist but ultimately was unsuccessful due to the more pressing medical issues and difficulties associated with the COVID-19 restrictions. At the outset, the Board notes the Veteran’s honorable service in the Republic of Vietnam from August 1965 to September 1966. Accordingly, he is presumed to had been exposed to herbicide agents in service. See 38 C.F.R. § 3.307(a)(6). However, this presumption alone is insufficient to establish the basis for service connection. Rather, service connection is generally granted for a disability incurred in service, whereas herbicide exposure itself is not a disability for VA compensation purposes. Therefore, the evidence must show that herbicide exposure actually caused a disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Of note, in a limited number of cases, a causal link between exposure to herbicide agents and subsequently developed diseases may be presumed by operation of law. See 38 U.S.C. § 1116(a)(1)(B); 38 C.F.R. §§ 3.307(a), 3.309(e). This presumption, however, is limited to the list of only those chronic diseases that are specifically listed in 38 C.F.R. § 3.309(e). The list is exhaustive and the only listed skin disorder is chloracne or other acneform disease consistent with chloracne, which may be presumed to had been incurred due to herbicide exposure but only when manifested to a compensable degree within one year from such an exposure. See 3.307(a)(6)(ii). As such, given the onset of the Veteran’s skin disorder more than one year after his presumptive herbicide exposure, the requisite causal link between such exposure and his skin disorder developed some years later may not be presumed and must be shown by the evidence of record on the fact-finding basis. The Veteran’s service treatment records (STRs) reflect no manifestations, to include initial signs, symptoms, complaints, diagnoses, or treatment, that may be associated with his skin disorder at any time during service. Likewise, at separation, his February 1967 physical examination report reflects no history of any observed or reported skin problems. As reflected in his February 1967 self-reported medical history questionnaire, the Veteran had affirmatively denied any past or current skin diseases. Further, at the hearing, the Veteran stated that the approximate onset of his skin lesions dates approximately 4-5 years after he separated from service. As such, the evidence of record fails to suggest that the Veteran may have incurred his current skin disorder in service or within one year after his presumptive exposure to herbicide agents. In these circumstances, establishing an entitlement to service connection requires the evidence of record to show the existence of the claimed disability, a relevant traumatic event in service, and a causal link between the two. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Neither the existence of the Veteran’s skin disorder nor his presumptive exposure to herbicide agents is in dispute here. As such, the remaining issue before the Board is whether the two are etiologically related. This requisite causal link generally must be established by the medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This is particularly true in cases, like this, involving a medically complex alleged interplay between exposure to chemical toxins and subsequently developed skin disorder. Moreover, absent any evidence suggesting that the Veteran has specialized training, knowledge, or experience in the scientific fields such as medicine, epidemiology, or pathophysiology, he is said not possess the requisite expertise to render medical etiological opinions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At his hearing, the Veteran asserted his belief that no proper study of herbicide effects on human health had been undertaken. However, this is simply not the case, as there is a tremendous amount of medical literature about the health effects of herbicide agents on humans. Here, the Board takes judicial notice of Agent Orange & Veterans: Update 11 (2018) along with previous ten reports published by the National Academies of Sciences, Institute of Medicine. These reports are prepared and issued by the Committee that is comprised of a large group of the renowned scholars and subject-matter experts in the fields of medicine, pathology, and epidemiology, and are considered the authority on the association of exposure to herbicide agents, such as Agent Orange and its ingredients, and the subsequently developed diseases in the Vietnam Era veterans. The Agent Orange & Veterans reports are important. In the Agent Orange Act of 1991, Congress directed VA to ask the National Academies of Sciences, Institute of Medicine, to comprehensively evaluate scientific and medical evidence regarding the health effects of exposure to Agent Orange, other herbicides used in Vietnam, and the various components of those herbicides, including TCDD. The Update 11 presents the Committee’s analysis of peer-reviewed, scientific reports published between September 30, 2014, and December 31, 2017, and evaluating associations between various health outcomes and exposure to TCDD and other chemicals in the herbicide agents used in Vietnam. The report also considers information from the existing evidence databases, to include the most recent research studies and the past ten reports. In conducting its work, the Committee operated independently of VA and other government agencies, as it was not asked to make and thus did not make judgments regarding specific cases in which individual Vietnam veterans have claimed injury from herbicide exposure or other issues such as the potential costs of compensation for veterans or policies regarding such compensation. Upon considering all pertinent existing evidence as to whether or not a positive association between an exposure to herbicide agents and subsequent development of skin disorders, to include skin infections, nuclear buds, karyolysis, comedones, scar formation, and skin pigmentation, the Committee concluded that there is inadequate or insufficient evidence to conclude that there is an association between exposure to herbicide agents and chronic skin conditions other than chloracne. This category of association is just above the category of diseases for which there is affirmative evidence against a causal link. Of note, this does not mean that such a link is inconceivable, but it does mean that competent medical evidence would be required to link the Veteran’s skin disorder to his herbicide exposure in order to establish service connection. Here, establishing service connection would require the evidence to show with a probability of at least 50 percent that a causal link between his current skin disorder and his herbicide exposure in service exists. By implication of the Committee’s findings, particularly viewed in light of its persuasive authority, the Board finds that, at the present, there is inadequate or insufficient evidence to conclude with a probability of at least 50 percent that the Veteran’s skin disorder is etiologically related to his herbicide exposure. Given this finding, the Board further finds that no reasonable possibility exists that any further development would aid the Veteran in substantiating his claim. This is why the Board rejects the representative’s request made at the hearing to remand the Veteran’s claim for further development, to include providing him a medical examination as to the nature and etiology of his skin disorder, which is warranted only when the medical evidence of record is insufficient to decide the claim. See 38 U.S.C. § 5103A(a)(2); 38 C.F.R. §§ 3.159(c)(4)(i), 19.9(d)(5). Namely, the evidence of record must suggest that the skin condition at least may be related to his herbicide exposure, which is not the case here, as there is no evidence beyond the Veteran’s assertions that such a link exists. Mere conclusory generalized lay statement that an unspecified service event caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, the criteria for ordering an examination have not been met. Ultimately, the evidence of record fails to show an onset of the Veteran’s skin disorder in service or within one year after his herbicide exposure. The evidence of record further fails to show that it is at least as likely as not that the Veteran’s current skin disorder is etiologically related to his herbicide exposure. Accordingly, absent any legal basis to award the benefits sought here, service connection for skin disorder is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.