Citation Nr: 21022552 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-34 053 DATE: April 16, 2021 ORDER Entitlement to service connection for a skin disorder, claimed as foot problems, is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current skin disorder and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim. 2. Tinnitus did not manifest in service or to a compensable degree within the applicable presumptive period, a continuity of symptomatology is not established and tinnitus is not otherwise etiologically related to in-service disease or injury, including noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1131, 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 in the United States Army from October 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Regional Office (RO). These matters were previously remanded in a March 2019 Board decision. Specifically, the Board directed the RO to provide a new examination for the Veteran’s claimed skin disorder of his foot and tinnitus. New examinations were conducted in November 2019, May 2020 and July 2020. In July 2020 the RO issued a supplemental statement of the case again denying the Veteran’s claims. The Board therefore finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). The issues now return to the Board. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For chronic diseases, such as tinnitus, identified as such in 38 C.F.R. § § 3.309(a) as ‘other organic disease of the nervous system,’ is considered to have been incurred in or aggravated in service if manifested to a compensable degree during the period of service or within one year following service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.307(a)(3). For chronic diseases not manifested to a compensable degree during service or within one year following service, service connection can still be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court of Appeals for Veterans Claims (Court) determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a skin disorder, claimed as foot problems, is denied. The Veteran generally contends that he developed tiny blisters on his foot, possibly a fungal infection during bootcamp. See July 2014 VA examination. Specific argument in support of this appeal has not been submitted. Service treatment records reflect that the Veteran reported left foot pain in October 1972. There were no other complaints in his service treatment records, nor his post-service treatment records. It is noted that the Veteran did not seek treatment between 1972 to 2014. See November 2019 VA examination. The Veteran was afforded a VA examination in July 2014. However, the examiner found that claimed foot condition was fungal rather than musculoskeletal and referred the claim back to the RO for a new examination. A diagnosis or an etiology opinion was not provided. In November 2019, the Veteran was afforded another VA examination for his foot. The examiner noted that there was no current skin condition. The Veteran stated that the condition comes and goes and he uses over the counter medication to treat the condition. The examiner also noted that the Veteran had not been treated for a skin condition on his foot in the past 12 months. Here, the Board finds that the Veteran does not have a current diagnosis of a skin disorder for his foot and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the record does not reflect a current diagnosis related to a skin disorder of the foot, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Court’s holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of a skin disorder. See Saunders v. Wilkie, 886 F.3d. 1356 (2018). In addition, the Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). Although, the Veteran generally contends that he started having blisters on his foot during bootcamp, the Veteran did not provide specific argument as to an injury or event that incurred during service related to his skin disorder. Furthermore, the Veteran did not seek any medical treatment for his condition after service. Therefore, the Veteran’s contentions are without merit. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed skin condition and acknowledges that the Veteran is competent to give evidence about what he experienced. For example, he is competent to discuss the fact that he experiences symptoms of pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s statements are of low probative value. Therefore, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for a skin disorder. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus is denied. The Veteran generally contends that his tinnitus was caused by his military service. See July 2014 Notice of Disagreement. Specific argument in support of this appeal has not been provided. The July 2020 supplemental statement of the case reflected favorable findings that excessive noise exposure was conceded. Therefore, the question in this instance is whether a causal relationship or nexus exists between the tinnitus and his active service. Tinnitus is defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is “subjective,” its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, as the Veteran has reported having tinnitus, the Board finds he has a current disability. The Veteran’s service treatment records are negative for any complaints, treatments or diagnosis of tinnitus and his threshold shifts were normal. Furthermore, tinnitus was not reported until the Veteran claimed it in June 2013, 39 years after service. See June 2013 Application for Disability Compensation. Therefore, it did not manifest within a year from service and continuity of symptomatology has not been established. Presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran was afforded a VA audiology examination in June 2014. However, an etiology opinion was not provided because the examiner noted that the Veteran did not report recurrent tinnitus. However, this conclusion was erroneous as the Veteran emphasized that his tinnitus caused migraine headaches in his July 2014 Notice of Disagreement. Moreover, tinnitus is a subjective condition and the Veteran is competent to report such symptoms. He was afforded another VA audiology examination in November 2019 but again, no etiology opinion was provided. In May 2020, the Veteran was afforded an additional VA audiology evaluation. The examiner opined that the Veteran's tinnitus is at least as likely as not due to military noise exposure. The examiner reasoned that the Veteran served an active deployment to Vietnam and that the Veteran reported military noise exposure from trucks, rifle fire, machine gunfire, mortars, rocket fire and loud explosions. The examiner noted that the Veteran was exposed to hazardous noise including combat situations without hearing protection, that it is at least as likely as not that the tinnitus is a result of military noise exposure and that tinnitus is known to be a symptom associated with exposure to hazardous noise and hearing loss. The examiner noted that according to Medline Plus, the United States National Library of Medicine from the National Institutes of Health, which is part of the United States Department of Health and Human Services, states acoustic trauma is a common cause of sensory hearing loss and that “[d]amage to the hearing mechanisms within the inner ear may be caused by explosion near the ear, firing a gun near the ear and long-term exposure to loud noises.” However, this opinion is inadequate for adjudicative purposes because it is based on an incorrect factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). After thorough review of the Veteran’s file, there is no indication that the Veteran was exposed to combat situations with loud hazardous noise. His military occupational specialty (MOS) was a telecommunication specialist and he was not given a combat service medal or had weaponry trainings. Moreover, service personnel records indicate that the Veteran was stationed in Belgium and not Vietnam. This opinion is therefore afforded little, if any, probative weight. In a July 2020 addendum opinion, the VA examiner opined that the Veteran’s tinnitus is less likely than not due to military noise exposure. The examiner explained that her original report was reviewed, as well as, the Veteran’s DD Form 214 and it does appear that the Veteran in fact did not serve in combat in Vietnam. The examiner noted that, per the DD Form 214, the Veteran's MOS was Teletype Operator and Communications Specialist, which had a low probability of hazardous noise exposure. The examiner noted that the Veteran’s the DD Form 214 is silent for any combat medals or badges, that the Veteran’s service treatment records indicate no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation and that there was evidence of no permanent auditory damage on active duty. The examiner reasoned that there is no complaint of tinnitus in service treatment records or at separation and that although excessive noise exposure on active duty is conceded and tinnitus is reported today, there is no nexus of auditory damage on active duty to relate current report of tinnitus to military noise. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, the medical opinion is of great probative value. There is no contrary probative opinion of record. Although the Veteran is competent to report tinnitus symptoms, he is not competent to attribute such symptoms to any particular cause. Such is a complex medical matter that does not lend itself to lay opinion and the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, supra; Kahana v. Shinseki, supra. In this regard, tinnitus can have many causes and medical expertise is needed to determine the etiology of the disorder. Therefore, the Veteran’s statements are of low probative value. (Continued on the next page)   Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.