Citation Nr: 21029738 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-16 093 DATE: May 14, 2021 ORDER 1. Entitlement to a disability rating in excess of 10 percent for tinnitus has been withdrawn and is dismissed. 2. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus has been withdrawn and is dismissed. 3. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae has been withdrawn and is dismissed. 4. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst, has been withdrawn and is dismissed. 5. Entitlement to service connection for a bilateral hearing loss disability is denied. REMANDED 1. Entitlement to a compensable disability rating for scar, status-post removal of sebaceous cyst, is remanded. 2. Entitlement to a compensable disability rating for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. At the April 2, 2021, Board hearing, the Board received explicit and unambiguous notification from the Veteran that a withdrawal of the claims of (1) entitlement to a disability rating in excess of 10 percent for tinnitus; (2) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus; (3) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae; and (4) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst, were requested. 2. The Veteran's bilateral hearing loss disability did not manifest in service or within one year of separation from active duty and it is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to a disability rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for the issue of entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the appeal for the issue of entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the appeal for the issue of entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1977. In April 2021, the Veteran provided testimony in a virtual Board hearing before undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Withdrawal The Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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. § 20.205. Withdrawal may be made by the appellant or by her authorized representative. Id. At the April 2021 hearing, the Veteran and his representative stated that the Veteran wanted to withdraw the issues of (1) entitlement to a disability rating in excess of 10 percent for tinnitus; (2) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus; (3) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae; and (4) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst. The undersigned confirmed this during the hearing after the Veteran was sworn in. The Veteran withdrew the issues (1) explicitly, (2) unambiguously, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See Hearing Transcript on pages 3-5. The Board finds that the Veteran effectively withdrew the issues from the appeal. Accordingly, there remain no allegations of errors of fact or law for appellate consideration in regard to the issues of (1) entitlement to a disability rating in excess of 10 percent for tinnitus; (2) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus; (3) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae; and (4) entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst. 1. Entitlement to a disability rating in excess of 10 percent for tinnitus. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 2. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for tinnitus. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 3. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for pseudofolliculitis barbae. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. 4. Entitlement to an effective date earlier than September 29, 2015, for the award of service connection for scar, status-post removal of sebaceous cyst. The Board does not have jurisdiction to review this issue on appeal, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must 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. Service connection may 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service noise exposure. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of service connection for a bilateral hearing loss disability. The reasons follow. The Veteran has a current bilateral hearing loss disability for VA purposes. The Veteran's VA audiological examination in November 2015 showed that at least one of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz at 40 decibels or greater in each the left and right ear. 38 C.F.R. § 3.385. Therefore, the evidence shows that the Veteran has a current bilateral hearing loss disability. Accordingly, the first element of service connection is met. The Veteran was exposed to in-service hazardous noise. The Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) documents that the Veteran had a military occupational specialty (MOS) of recovery specialist. During the April 2021 Board hearing, the Veteran testified regarding his duty as the driver of an Army tank. He indicated that he was down in a hole in the middle of the tank with the engine directly on his right side. The Veteran stated that it was a "big [] diesel engine" that was "roaring" in his ear every day of the year. He added that he was also on the rifle range and was required to pick up big Army tanks with "big ole loud guns and things." Although the Veteran's service treatment records do not show symptoms of or complaints for bilateral hearing loss, there is ample indication that he was exposed to acoustic trauma in service due to his MOS in the Army. The Veteran's statements about his experiences are credible and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). In light of the above, the Board finds that the Veteran was exposed to hazardous noise during his service, and the second element of service connection, an in-service event, is met. However, the Board determines that the third element of service connection, the nexus requirement, is not met for the Veteran's current bilateral hearing loss disability. Specifically, the Board finds that the Veteran's current bilateral hearing loss disability did not manifest in service or within one year of separation from active duty and is not otherwise related to his active duty. During the April 2021 Board hearing, the Veteran's representative asserted that the Veteran's service treatment records showed that he had increases in his decibel thresholds in each ear, as measured between the 1974 entrance examination and 1978 exit examination. Moreover, the Veteran's wife testified that she noticed a decrease in the quality of the Veteran's hearing shortly after he got out of service. She stated that she had to repeat things to him over and over again, the Veteran would speak at a louder tone and had the television "blasting." Overall, the record shows that the Veteran first complained of his hearing loss and symptoms in a September 2015 audiological report from a private audiologist. The report documents symptoms of progressive bilateral hearing loss that had become bothersome over the preceding six to seven months. The audiologist also documented the Veteran's history of noise exposure as a tanker in the military and law enforcement, and that the Veteran was currently working in a prison. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 38 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran contends that it has been said and documented that his hearing loss started during his military career as a result of his job description. See June 2016 statement. However, in a September 1978 Report of Medical History, which was completed over one year after his separation from service, the Veteran denied that he had ever or had at the time, "ear, nose, or throat trouble" and "hearing loss." The Veteran signed this document, wherein he attested that the information he provided in the form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. In the September 1978 Report of Medical Examination, the clinical evaluation of the Veteran's "ears general" was normal, and the Veteran was assigned a "1" rating assessing hearing under the PULHES profile system, indicating that the Veteran's hearing was in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H"); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Thus, the Board finds that the Veteran's current bilateral hearing loss disability did not manifest in service or within one year of separation from active duty service, a presumption of service connection based on chronicity is not appropriate. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed the Veteran's medical records and finds that the preponderance of the evidence is against a finding that his bilateral hearing loss disability was a result of active duty service. The November 2015 VA examiner documented she had reviewed the Report of Medical Examination from January 1974 and compared it with the Report of Medical Examination from September 1978 and wrote that there was no significant change in hearing sensitivity and that documentation of an Occupational Safety Health Administration-defined standard threshold shift was not established from this audiometric data. She opined that the Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. She provided the rationale that the documentation of hearing within normal limits at induction, documentation of hearing within normal limits at separation, and the lack of documentation of an Occupational Safety and Health Administration (OSHA)-defined standard threshold shift (STS) during military service indicate it is not at least as likely as not that the Veteran's current hearing loss is related to his period of service. The Board finds that the most probative evidence of record is the opinion of the November 2015 VA examiner. The VA examination report and opinion provide competent and probative evidence that weighs against the Veteran's claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an audiological examination, and provided a medical opinion supported by well-reasoned rationale, which was based upon the specific facts and medical principles. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). There is no competent evidence that refutes this opinion. The Board's findings are supported by the fact that the claims file does not contain a medical opinion finding a causal link between the current bilateral hearing loss and the Veteran's in-service noise exposure. The Board acknowledges the Veteran's contentions that his current bilateral hearing loss is related to his in-service noise exposure. While the Veteran's representative stated that there is a threshold shift between the entrance and exit examinations during the April 2021 Board hearing, this was directly considered by the November 2015 VA examiner, a licensed audiologist, who found that there was no OSHA-defined STS. Moreover, the September 2015 private audiological report references the Veteran's history noise exposure as a tanker in the military and law enforcement, and that he was currently working in a prison. However, the private audiologist did not directly attribute the Veteran's current hearing loss to service. The Veteran has attempted to establish a nexus through his own lay assertions that his bilateral hearing loss disability is related to his in-service exposure to noise hazards; however, the Veteran is not competent to offer opinions as to the etiology of his current hearing disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The cause of hearing loss requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion. The Board has considered objective medical evidence which showed that he did not have a bilateral hearing loss disability for VA purposes until decades after service. Accordingly, service connection on a direct basis is denied. For all the reasons stated above, the preponderance of the evidence is against the claim of service connection for a bilateral ear hearing loss disability on either a direct basis or a presumptive basis, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 6. Entitlement to a compensable disability rating for scar, status-post removal of sebaceous cyst, is remanded. The Veteran was last afforded a VA examination in February 2016 in order to evaluate the severity of his service-connected scar. During the April 2021 Board hearing, the Veteran testified that his scars have gotten worse and that he may have more scars since his last examination. The Veteran stated that he was willing to attend a new examination. Thus, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his scar, status-post removal of sebaceous cyst. 7. Entitlement to a compensable disability rating for pseudofolliculitis barbae is remanded. The Veteran was last afforded a VA examination in November 2015 in order to evaluate the severity of his service-connected skin disability. During the April 2021 Board hearing, the Veteran testified that his skin disability had gotten worse since his last examination. The Veteran stated that he was willing to attend a new examination. Thus, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his pseudofolliculitis barbae. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected scar, status-post removal of sebaceous cyst. 2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected pseudofolliculitis barbae. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.