Citation Nr: 21011523 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-12 430 DATE: March 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for basosquamous cell carcinoma, to include as secondary to exposure to a herbicide remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether tinnitus was incurred in service. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2021, the Veteran and his daughter testified before the undersigned. A transcript of the hearing is of record. The Board notes that Veteran had submitted a supplemental claim for his service connection claim for basosquamous cell carcinoma in November 2019. VA issued a supplemental rating decision in May 2020, and the Veteran filed a 10182 form notice of disagreement for that claim. However, VA issued the May 2020 supplemental rating decision in error. The Veteran’s service connection claim for basosquamous cell carcinoma had already been perfected by a VA Form 9 in February 2018. As such, the appeal was already docketed in the legacy appeal system. Therefore, the Veteran’s claim will remain in the legacy appeal system and the appeal originating from the 10182 shall be dismissed at a later date. The Board notes that the Veteran’s claim for basosquamous cell carcinoma is herein remanded, and if the Veteran wishes to opt into the Appeals Modernization system he may do if the claim continues to be denied and a supplemental statement of the case (SSOC) is issued on remand. 1. Service Connection for Tinnitus The Veteran contends that his tinnitus is related to noise exposure in-service. The Veteran’s military occupational specialty (MOS) was electrician’s mate. In order to establish direct service connection, three elements must be established. These elements are: “(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,” which is often referenced as the “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant’s belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, certain chronic diseases, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. “§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’“). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran underwent a VA audiological examination in May 2017. The examiner noted the Veteran had extensive exposure to noxious noise with an MOS of electrician’s mate. During the examination, the Veteran reported tinnitus, that began a few years ago. The examiner opined that it is less likely than no caused by or a result of military noise exposure. The examiner reasoned that the time of onset is significantly post military exposure and the Veteran had noise exposure outside the military with a job as electrician. The examiner noted that the tinnitus is due to these factors that there is no basis on which to conclude the claimed tinnitus was caused by noise exposure. In January 2021, the Veteran and his daughter testified at a Board hearing. The Veteran’s daughter stated that the Veteran had issues with his tinnitus long before the Veteran noticed the problem. The Veteran stated that his tinnitus was gradually increasing and did not notice it until it became severe. The Veteran indicated he first realized he had a problem with ringing in his ears 20 years earlier. However, the Veteran did indicate that he did experience muffled hearing related to ringing in his ears a long time ago, indicating longer than when he noticed the severe ringing in his ears 20 years earlier. As noted above, tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. The Veteran asserts he has experienced tinnitus-like symptoms associated with muffled hearing at some point a long time ago. He is competent to report his symptoms of tinnitus, such as ringing in the ears. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See 38 C.F.R. § 3.159 (a)(2). Although, the Veteran does not described ringing in the ears specifically, providing the Veteran the benefit of the doubt, the Board finds that muffled sound could be described as tinnitus. The fact the Veteran is unsure when it began is not necessarily dispositive of his claim. The Veteran described the ringing coming about gradually, and not noticing it until it became severe 20 years ago, although he noticed muffled noise an even longer time than that. Thus, providing the Veteran the benefit of the doubt, and noting that the Veteran did experience “noxious” noise exposure in service, the Board finds it is likely the tinnitus began in service. Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. Here, there is no evidence of greater weight in the record that contradicts the Veteran’s testimony, and the Board finds the Veteran’s testimony to be credible. In this regard, the Veteran essentially contends that his tinnitus has been “chronic and continuous since discharge.” These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). This is one such case where the Veteran’s competent and credible lay evidence as to in-service tinnitus and continuity of symptomatology is sufficient to support a claim for entitlement to service connection. Although, there is a negative VA medical opinion, the Board finds that opinion to hold equal probative weight as the Veteran’s testimony. Based upon the facts, the evidence is in relative equipoise that service connection tinnitus is warranted. REASONS FOR REMAND 1. Service connection for basosquamous cell carcinoma is remanded. The Veteran contends that his basosquamous cell carcinoma is related to his service, specifically, that it was caused by his conceded exposure to a herbicide. In June 2017, the Veteran underwent a VA examination. The examiner opined that the Veteran’s claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was diagnosed with basosquamous carcinoma on his back in 2010. The Veteran was treated at the time with a biopsy for this skin cancer. The examiner noted there was no recurrence. The examiner stated that skin cancers in patients with increased sun exposure who have fair complexions like the Veteran are primarily due to sun exposure. In January 2021, the Veteran testified that while in service he was exposed to the sun while working on the deck of a ship. The Veteran stated that he did received multiple sunburns while working on the deck of a ship. The Board finds that a remand is warranted for another skin examination. Upon examination an opinion must be made as to whether the Veteran has any current skin disabilities or residuals of the Veteran’s basosquamous carcinoma in 2010. Further, the examiner must opine as to whether the Veteran’s sun exposure during service caused the Veteran’s skin condition or residuals thereof. Further, the Board notes that the June 2017 VA examiner did find that the type of skin cancer the Veteran was treated for was “primarily” due sun exposure, the examiner failed to address whether the Veteran’s exposure to a herbicide is etiologically related to the Veteran’s claimed condition. Therefore, upon remand the examiner must address the Veteran’s contentions that exposure to herbicide agents was related to his skin disability. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his skin disability characterized as basosquamous carcinoma. The examiner must review the claims file and provide the follow opinions: (a.) Does the Veteran have current skin disability to include any residuals of his basosquamous carcinoma and subsequent treatment? i. The Board notes that a “current disability” is a disability that was present during the appellate period (in this case any time from May 2016) even if the disability has resolved. (b.) Whether any skin disability, or residual thereof, is at least as likely as not related to service, including exposure to sun in service. (c.) Is any skin disability or residuals thereof at least as likely as not related to in-service exposure to herbicide agents. i. The examiner is advised that a negative opinion cannot be based solely on the fact that the skin disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents.   (d.) The examiner must provide a complete medical rationale for all opinions provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.