Citation Nr: 21023658 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-54 911 DATE: April 21, 2021 ORDER Entitlement to service connection for sleep apnea is dismissed. Entitlement to service connection for lung cancer is dismissed. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is dismissed. Entitlement to a rating in excess of 20 percent for chronic lumbosacral strain with degenerative arthritis is dismissed. New and material evidence having not been submitted, reopening of the claim of entitlement to service connection for sinusitis is denied. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral knee disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for depression is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for skin cancer is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In June 2020, prior to the promulgation of a decision in the appeal, the Veteran testified that he wanted to withdraw his appeal of the issues of entitlement to service connection for sleep apnea and lung cancer, and entitlement to increased ratings for bilateral hearing loss and chronic lumbosacral strain with degenerative arthritis. 2. In an unappealed July 1994 rating decision, the Veteran was denied entitlement to service connection for sinusitis; the evidence received since that decision is cumulative or redundant of the evidence of record at the time and does not relate to an unestablished fact necessary to substantiate the claim. 3. In an unappealed April 2006 rating decision, the Veteran was denied entitlement to service connection for a bilateral knee disability and depression; the evidence received since that decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims. 4. Tinnitus is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 7105(a), 7108 (2018); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to service connection for lung cancer. 38 U.S.C. §§ 7105(a), 7108 (2018); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 3. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a rating in excess of 20 percent for bilateral hearing loss. 38 U.S.C. §§ 7105(a), 7108 (2018); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 4. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a rating in excess of 20 percent for chronic lumbosacral strain with degenerative arthritis. 38 U.S.C. §§ 7105(a), 7108 (2018); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for sinusitis. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 6. New and material evidence has been received, and the claim of entitlement to service connection for a bilateral knee disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 7. New and material evidence has been received, and the claim of entitlement to service connection for a depression is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 8. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from April 1971 to September 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2014, October 2015, and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following the October 2014 rating decision, the Veteran continually prosecuted his claim for entitlement to service connection for skin cancer. Therefore, the October 2014 rating decision is not final as to that appealed issue, and the issue has been recharacterized as a claim for service connection. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(a). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At his June 2020 hearing, the Veteran withdrew his appeal of the issues of entitlement to service connection for sleep apnea and lung cancer, and entitlement to increased ratings for bilateral hearing loss and chronic lumbosacral strain with degenerative arthritis. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those appealed issues, and they are dismissed. Claims to Reopen 1. Service Connection – Sinusitis In a July 1994 rating decision, the RO denied entitlement to service connection for sinusitis. The RO found no evidence of chronic sinusitis. The Veteran did not appeal. The evidence that has been received since the July 1994 rating decision include post-service medical records, an October 2017 VA examination report, and the Veteran’s June 2020 hearing testimony. Specifically, the Veteran testified that he has continued to have symptoms of and take medication for sinusitis since service. The Board finds that the additional evidence is not new and material. While the evidence is new, it does not raise a reasonable possibility of substantiating the claim. The Board acknowledges the Veteran’s sincere belief that his symptoms are comparable to chronic sinusitis; however, the Veteran is not competent to provide a diagnosis, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the October 2017 VA examination report and post-service medical records lack any objective evidence that the Veteran has chronic sinusitis that is related to his active service. Therefore, as new and material evidence has not been presented, reopening of the claim is not warranted. 2. Service Connection – Bilateral Knee Disability In an April 2006 rating decision, the RO denied entitlement to service connection for a bilateral knee disability on a direct basis. The Veteran did not appeal. The evidence that has been received since the April 2006 rating decision include post-service medical records, an October 2017 VA examination report, and the Veteran’s June 2020 hearing testimony. Specifically, the Veteran asserted that his left and right knee disability are secondary to his service-connected chronic lumbosacral strain with degenerative arthritis. The Board finds that the additional evidence is new and material as it has not been previously considered by VA, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee disability. Therefore, reopening of the claim is warranted. 3. Service Connection – Depression In an April 2006 rating decision, the RO denied entitlement to service connection for depression. The Veteran did not appeal. The evidence that has been received since the April 2006 rating decision include post-service medical records, an October 2017 VA examination report, the Veteran and his wife’s lay statements, and the Veteran’s June 2020 hearing testimony. Specifically, the Veteran and his wife asserted that he has depression, anxiety, and PTSD which were associated with service-related stressors. Further, the October 2017 VA examiner opined that the Veteran’s psychiatric disability was related to his in-service stressors. The Board finds that the additional evidence is new and material as it has not been previously considered by VA, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression. Therefore, reopening of the claim is warranted. Service Connection – Tinnitus The Veteran has contended that his tinnitus is related to his in-service noise exposure. Specifically, his service duties were cook and aircraft maintenance. VA has conceded that the Veteran sustained acoustic trauma during his active service. Service treatment records (STRs) are silent for complaints, treatment, or diagnosis for tinnitus. Regardless, the Veteran has reported that he first experienced symptoms associated with tinnitus while he was in active service and that those symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In February 2006, the Veteran was afforded VA audiological examination. He recalled noticing symptoms of tinnitus while working as a cook during service. The examiner could not speculate on the relationship between the Veteran’s tinnitus and in-service acoustic trauma because the onset was during a period when his duties were not considered noise hazardous. The Veteran was provided additional VA audiological examinations in July 2014 and April 2017. The Veteran stated that his left ear tinnitus began at the time of surgical treatment for cancer in 2012. Consequently, both examiners opined that the Veteran’s tinnitus was less likely than not caused by or a result of in-service noise exposure. The Board finds that the VA medical opinions are inadequate for adjudication purposes. Specifically, the examiners did not consider the Veteran’s competent and credible statements regarding the in-service onset and continuity of his symptoms since service. As the opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify tinnitus, and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, VA has conceded acoustic trauma during the Veteran’s active service. The Veteran competently reported that his tinnitus was incurred in and has continued since service, and those statements have been found credible by the Board. While there are VA medical opinions of record against the claim, those opinions are not adequate. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service Connection – Skin Cancer The Veteran has contended that his skin cancer is a result of his in-service exposure to herbicides. Specifically, he served as a cook at Kadena Air Base (AB), Okinawa, Japan, from 1972 to 1974. He reported that he delivered meals to flight line service members who routinely supported flight missions throughout the Republic of Vietnam (RVN). He added that he witnessed a stockpile of herbicides or jet fuel being loaded and unloaded from cargo planes in drums and rubber bladders, often tagged with orange paint and/or leaking. He recalled walking through “puddles” of herbicides or jet fuel to deliver the meals. There is no evidence of record that VA has exhausted all reasonable efforts to verify that the Veteran’s potential exposure to herbicides in locations outside the RVN, to specifically include a verification request sent to the U.S. Joint Services Records Research Center (JSRRC). As such, the Board finds that the appropriate development should be conducted upon remand. Furthermore, the Board notes that the Veteran’s exposure to jet fuel or other chemical hazards has been raised by the record. Therefore, a VA examination is warranted to determine the nature and etiology of any currently present skin cancer. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Service Connection – Psychiatric Disability The Veteran has stated that his psychiatric disability, to include PTSD and depression, are related to his active service. Specifically, he reported that he felt guilty after he sent one of his fellow service members to a mess hall in the RVN, and he died in a mortar attack in or around 1972. Additionally, he witnessed service members burn in a C-141 plane crash at an old Russian base in Cairo, Egypt, in October/November 1980. He recalled that he had to transfer the service members’ remains to a German base. Service personnel records (SPRs) show that the Veteran served with the 3700 Food Service Squadron at Lackland AB, Texas, in or around 1972; the 824th Services Squadron and 18 Services Squadron at Kadena AB, Japan, in or around 1973; and the 23rd Service Squadron at England AB, Louisiana, in October/November 1980. The Board notes that the RO attempted to verify the Veteran’s stressors through the JSRRC in September 2015, but the request was deemed invalid because it did not include the Veteran’s unit of assignment under the 23rd Tactical Fighter Wing. In light of the service details documented in the Veteran’s SPRs, the RO should again attempt to verify the Veteran’s reported stressors. Additionally, the Veteran reported that his psychiatric disability was secondary to his service-connected disabilities. He was afforded a VA examination in October 2017. The examiner opined that the Veteran’s psychiatric disability was less likely than not proximately due to or the result of his service-connected disabilities. However, the Board finds that the examiner did not provide the requisite aggravation opinion. As such, an additional VA examination is warranted to determine the nature and etiology of any currently present psychiatric disability. 3. Service Connection – Left Hip, Left Knee, and Right Knee Disabilities The Veteran has asserted that his left hip, left knee, and right knee disabilities are secondary to his service-connected disabilities, to specifically include chronic lumbosacral strain with degenerative arthritis. In October 2017, a VA examiner opined that the Veteran’s left hip, left knee, and right knee disabilities were less likely than not proximately due to or the result of his service-connected disabilities. However, the Board finds that the examiner did not provide the requisite aggravation opinion. As such, new VA examinations are warranted. The matters are REMANDED for the following action: 1. Conduct the appropriate development to verify the Veteran’s reported exposure to herbicides during his active service, to include his report of exposure at Kadena AB, Okinawa, Japan from 1972 to 1974. The development should include sending the Veteran’s detailed description of exposure to Compensation Service and requesting a review of the Department of Defense’s inventory of herbicide operations to determine whether herbicides were used or stored as claimed. Additionally, a request for verification of herbicide exposure to the JSRRC should be made. All development efforts made must be documented in the claims file. 2. Conduct the appropriate development action to verify the Veteran’s exposure to hazardous chemicals while stationed at Kadena AB, Okinawa, Japan from 1972 to 1974. All attempts to verify the Veteran’s exposure to hazardous chemicals must be documented in the claims file. 3. Conduct the appropriate development to verify the Veteran’s stressor(s) through official sources, including the JSRRC, or other appropriate repositories of such information. All attempts to verify the reported stressor(s) must be documented in the claims file. 4. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his skin cancer. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that skin cancer is etiologically related to the Veteran’s active service, to include exposure to jet fuel or any conceded exposure to herbicides and/or chemical hazards. The rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability, including PTSD. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. Then, for each psychiatric disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the psychiatric disability, to specifically include PTSD, had its onset during active service, or is otherwise etiologically related to the Veteran’s active service, including as a result of his reported in-service stressors. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s psychiatric disability, to specifically include PTSD, was caused or aggravated (chronically worsened) by a service-connected disability. The rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his left hip disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left hip disability was caused or aggravated (chronically worsened) by a service-connected disability. The rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his left and right knee disabilities. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left and right knee disabilities were caused or aggravated (chronically worsened) by a service-connected disability. The rationale for all opinions expressed must be provided. 9. Confirm that all development conducted complies with this remand, and undertake any additional development determined to be warranted. 10. Then, readjudicate the remaining claims on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.