Citation Nr: 21024464 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-15 761 DATE: April 22, 2021 ORDER Service connection for right ear hearing loss is granted. REMANDED The issue of entitlement to service connection for a skin condition is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss manifested during or is otherwise related to noise exposure during active service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to July 1970, with combat service in Vietnam from January 1968 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Appeals (VA) Regional Office (RO). In a July 2020 Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board’s June 2019 decision denying service connection for bilateral hearing loss and a skin condition. In a November 2020 decision, this matter was remanded by the Board for further development consistent with the JMR. Service connection for left ear hearing loss was granted in a February 2021 rating decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Service connection for right ear hearing loss After reviewing the record, the criteria for service connection for right ear hearing loss are met. The Veteran has a current disability of right ear hearing loss for VA purposes, satisfying the first requirement for service connection. See November 15, 2013, VA Examination. He contends that his hearing loss began after he was exposed to loud noises during combat, to include M60 machine guns and 155mm projectiles at close range. Id.; May 22, 2019, Informal Hearing Presentation (IHP). The Veteran’s report of serving in combat has been established. The Veteran’s assertion of noise exposure is consistent with the circumstances of this combat service, and the Veteran is entitled to the combat presumption regarding the second, in-service injury requirement for service connection. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Turning to the third element of service connection, the nexus requirement, an addendum medical opinion was obtained in January 2021. The examiner rendered a negative etiological opinion for the right ear because there was no significant shift in hearing levels greater than normal measurement variability during military service and no record, complaint, or treatment of the claimed condition in the service medical records. November 30, 2020, VA Examination. Service treatment records reveal that in a July 1967 enlistment Report of Medical History, the Veteran did not identify hearing loss as an impairment or problem. In a May 1970 separation Report of Medical History, however, the Veteran’s response changed and now identified hearing loss as an impairment or problem. VA treatment records demonstrate that the Veteran presented with complaints of worsening, moderate to severe, hearing loss in October 2013. See October 18, 2013, Primary Care Note. The Veteran explained his exposure to loud noises in the military, stating that he has had hearing loss for many years and described hearing loss as continuous. Id. In his assessment, the physician noted that the etiology of hearing loss was unclear, but opined it was most likely from loud noise exposure in the military. Id. The competent and probative evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss manifested during or is otherwise related to acoustic trauma during service, particularly given the combat presumption. The November 2020 examiner’s opinion is given little probative value as the examiner did not acknowledge and consider the Veteran’s identification of hearing loss upon separation or the Veteran’s description of hearing loss as continuous in VA treatment records. The October 2013 etiology opinion is also given little probative value as it is not supported by a clear rationale. The Veteran’s reports of decreased hearing acuity since separation from service are deemed credible and highly probative. The Veteran is competent to report symptoms of reduced hearing acuity and that he has experienced these symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge). Resolving all reasonable doubt in the Veteran’s favor, the claim of service connection for right ear hearing loss is granted. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.102, 3.304(d).   REASONS FOR REMAND 1. The issue of service connection for a skin condition is remanded. The Veteran contends his current skin condition, consisting of welts and spots in the sun, is related to his combat service in Vietnam, to include jungle rot and exposure to herbicides. See February 17, 2015, Notice of Disagreement (NOD). The Veteran was afforded a new VA examination consistent with the JMR and November 2020 remand directives; however, the medical opinion is not adequate for adjudication purposes. The November 2020 examiner was directed to render etiological opinions regarding direct service connection for a skin condition and secondary service connection for a skin condition due to service-connected posttraumatic syndrome (PTSD). In formulating her direct service connection opinion, the examiner acknowledged the Veteran’s history of tinea pedis in July 1970 but did not consider the Veteran’s statements regarding the in-service incurrence of jungle rot disease during combat in Vietnam. See January 25, 2021, VA Examination. The combat presumption eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran’s statements alone regarding in-service incurrence must generally be presumed credible if consistent with the circumstances, conditions, or hardships of his service. An addendum opinion is warranted. With respect to secondary service connection, the examiner failed to provide a rationale for her negative nexus opinion under the aggravation prong. See January 25, 2021, C&P Examination; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). A remand for an addendum opinion is warranted. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. The matters are REMANDED for the following action: 1. Contact the Veteran and attempt to obtain additional information regarding the in-service incurrence of jungle rot, including a description of the signs, symptoms, and duration of the disorder. All information and responses received must be clearly documented and associated with the claims file. 2. After completion of directive #1, obtain an addendum opinion from the November 2020 examiner or another appropriate clinician to determine the etiology of the Veteran’s skin disorder. The Board defers to the clinician to determine whether an in-person examination is necessary. The clinician should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the current skin condition manifested during or is otherwise related to the Veteran’s period of active service, to specifically include the incurrence of jungle rot during combat in Vietnam. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the current skin disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by the symptoms or treatment of the Veteran’s service-connected PTSD, to include emotional turmoil. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.