Citation Nr: 21024693 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-08 383 DATE: April 23, 2021 ORDER Entitlement to service connection for a skin disability is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a liver disability is denied. FINDINGS OF FACT 1. A skin disability was not manifest during active service or within one year. It is not otherwise attributable to service. 2. A bilateral hearing loss disability was not manifest in service or within one year. It is not otherwise attributable to service. 3. A liver disability was not manifest in service or within one year. It is not otherwise attributable to service.   CONCLUSIONS OF LAW 1. A skin disability was not incurred in or aggravated by active service, and a malignant tumor may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. A bilateral hearing loss disability was not incurred in or aggravated by active service, an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. A liver disability was not incurred in or aggravated by active service, and cirrhosis of the liver may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 from November 1966 to November 1968. This case was previously before the Board in January 2018, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection To establish service connection a Veteran must generally show: “(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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for an organic disease of the nervous system, cirrhosis of the liver, or malignant tumors if manifest to a compensable degree within one year. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303 (b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 1. Entitlement to service connection for a skin disability The Veteran seeks service connection for a skin disability, which he argues is due to his exposure to herbicide agents during his service in Vietnam. He has confirmed service in Vietnam. Therefore, exposure to herbicide agents is presumed. Service treatment records do not contain complaints or treatment for any skin disease or injury. At separation, the Veteran’s skin was normal to examination. Treatment records show that the Veteran has been treated for squamous cell carcinoma and malignant melanoma. The Veteran received a VA examination for his skin in August 2020. The examiner opined that his squamous cell carcinoma and malignant melanoma were less likely than not due to his active service. The stated rationale was that the Veteran’s treatment for his skin cancers began in the year following his liver transplant and use of immunosuppressive medications, and organ transplant recipients are at a much higher risk for developing skin cancers, especially squamous cell carcinoma and malignant melanoma, than the rest of the population. Therefore, the examiner believed this to be the most likely etiology for the Veteran’s skin cancers. While the Veteran believes his skin cancer is related to his herbicide agent exposure in service, he is not competent to provide a nexus opinion relating a remote onset to in-service exposure. Consequently, the Board gives more probative weight to the opinion of the August 2020 VA examiner. The Board concludes that, while the Veteran has a skin disability, it did not manifest in service or to a compensable degree within one year, and continuity of symptomatology is not established. He did not have characteristic manifestations sufficient to identify the disease entity since testing was normal at that time. Here, skin cancer was not noted during service or within one year of separation, and the separation examination was normal. There is no credible evidence of skin cancer in service or within the presumptive period, and there is no competent evidence linking the remote onset to service, to include herbicide agent exposure. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 2. Entitlement to service connection for a bilateral hearing loss disability The Veteran seeks service connection for a bilateral hearing loss disability. The issue for the Board is whether the Veteran has a disability that began during service or is at least as likely as not related service. The Board concludes that, while the Veteran has a current bilateral hearing loss disability, and evidence shows that noise exposure occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss disability began during service or is otherwise related to service. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since then, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The Veteran’s October 1968 separation examination specifies that ASA standards were used. Therefore, in order to facilitate data comparison, the ASA standards used at the Veteran’s separation examination have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; and (+5) at 4000 Hertz. Service treatment records do not contain complaints of hearing loss. At separation the Veteran denied hearing loss. His audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -10 (0) -10 (0) -5 (0) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 5 (10) The Veteran received VA audiological examinations in August 2011 and September 2019. At the August 2011 examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 40 40 LEFT 25 40 50 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear. The examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to noise exposure during active duty because his hearing was within normal limits at separation. This matter was remanded for a new medical examination and opinion, as the stated rationale from the August 2011 examination was inadequate. In September 2019, the Veteran was examined again. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 55 60 55 LEFT 50 60 60 60 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 68 percent in the left ear. The audiologist opined that the Veteran’s bilateral hearing loss disability was less likely than not related to his noise exposure during active service. To support this opinion, the audiologist noted that the Veteran not only had normal hearing during service, but that his hearing actually improved from the entrance to separation audiograms. The audiologist further explained that delayed onset hearing loss due to noise exposure is not supported by current research. While the Veteran believes his bilateral hearing loss disability is related to his noise exposure in service, he is not competent to provide a nexus opinion relating a remote onset to in-service exposure. Consequently, the Board gives more probative weight to the opinion of the September 2019 VA examiner. The Board concludes that, while the Veteran has a bilateral hearing loss disability. it did not manifest in service or to a compensable degree within one year, and continuity of symptomatology is not established. He did not have characteristic manifestations sufficient to identify the disease entity since testing was normal at that time. Here, neither hearing loss nor hearing loss disability was noted during service or within one year of separation, and the separation examination was normal. There is no credible evidence of hearing loss disability in service or within the presumptive period, and there is no competent evidence linking the remote onset to service, to include noise exposure. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 3. Entitlement to service connection for a liver disability The Veteran seeks service connection for a liver disability, which he argues is due to his exposure to herbicide agents during his service in Vietnam. He has confirmed service in Vietnam. Therefore, exposure to herbicide agents is presumed. Service treatment records do not contain complaints or treatment for any liver disease or injury. At separation, all systems were marked normal. Treatment records show that the Veteran has been treated for cirrhosis of the liver secondary to nonalcoholic steatohepatitis (NASH), receiving a transplant in July 2013. The Veteran received a VA examination for his liver in August 2020. The examiner opined that his nonalcoholic fatty liver disease (NAFLD) is less likely than not due to his active service. The stated rationale was that there is not research or other medical evidence to support a link between cirrhosis or NAFLD and herbicide agents. Further, NAFLD is associated with an excess of fat stored in liver cells. The Veteran’s liver cirrhosis was more likely the result of his multiple risk factors for that condition, including obesity, hypothyroidism, dyslipidemia and fatty liver (NASH). While the Veteran believes his NASH and subsequent liver cirrhosis are related to his herbicide agent exposure in service, he is not competent to provide a nexus opinion relating a remote onset to in-service exposure. Consequently, the Board gives more probative weight to the opinion of the August 2020 VA examiner. The Board concludes that, while the Veteran has a liver disability, it did not manifest in service or to a compensable degree within one year, and continuity of symptomatology is not established. He did not have characteristic manifestations sufficient to identify the disease entity since testing was normal at that time. Here, liver cirrhosis was not noted during service or within one year of separation, and the separation examination was normal. There is no credible evidence of liver cirrhosis in service or within the presumptive period, and there is no competent evidence linking the remote onset to service, to include herbicide agent exposure. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.