Citation Nr: 21042055 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-58 356 DATE: July 11, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a disability manifested by chronic fatigue is remanded. Entitlement to service connection for a skin disability is remanded. INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. In July 2021, the Veteran attended a hearing before the undersigned Veterans Law Judge. FINDING OF FACT The Veteran's bilateral sensorineural hearing loss is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's claim, any error committed with respect to that claim is harmless. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss, which he contends originated in service. The medical evidence confirms the Veteran currently has a bilateral sensorineural hearing loss disability. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran's service treatment records (STRs) show his hearing was within normal limits on entrance into active duty. Though his STRs do not show a puretone threshold shift from entrance through separation, as a result of the Veteran undergoing a whispered voice test at the time of his February 1971 separation examination, the Veteran's DD-214 shows he was a military Boatswain's Mate. The U.S. Navy has acknowledged this job rating carries a high probability for exposure to acoustic trauma. On VA examination in April 2015, the Veteran's audiological testing revealed evidence of a current bilateral sensorineural hearing loss disability in accordance with 38 C.F.R. § 3.385. However, the examiner concluded the Veteran's current hearing loss was not as likely as not caused by or the result of his military service. In this respect the examiner indicated the Veteran's disability may possibly be genetic or age related; however, the examiner wholly failed to explain how or why she came to that conclusion. Notwithstanding the medical opinion provided by the April 2015 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty, which is consistent with his duties as a Boatswain's Mate. Further, the Veteran has indicated that he initially noticed his diminished hearing during his time in service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). Here, the Veteran has reported that he experienced diminished hearing in service. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing decreased hearing to be at least as probative as the above-noted VA examiners' findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced hearing loss during and since service due to the in-service acoustic trauma. Accordingly, a nexus to service is established. To the extent the April 2015 VA examiner opined that it was less likely as not that the Veteran's hearing loss was related to his military service, the Board finds the opinion to be of limited probative value as the opinion was not supported by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed disability and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss disability. REASONS FOR REMAND While the Board regrets the delay, additional development is required before the Veteran's remaining claims are decided. Initially, the Board observes the Veteran has asserted his skin disorder and disability manifested by chronic fatigue are the result of Agent Orange exposure. A review of his official military personnel file (OMPF) and DD-214 indicate he was stationed aboard the U.S.S. St. Louis from September 1969 to April 1971, and is the recipient of the Vietnam Service Medal. Congress recently enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019. 116 P.L. 23, 133 Stat. 966 (2019). This legislation indicates a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service "offshore" is demonstrated when a veteran is shown to have served within 12 nautical miles of demarcation lines outlined in the legislation as constituting the official waters of the Republic of Vietnam. To date, the RO has not initiated development to determine whether the Veteran served within the 12 nautical mile demarcation line via the Blue Water Navy Ship Locator tool. In this regard, the Board also acknowledges that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, following the above-noted development, examinations may be required if the Veteran's exposure to herbicides can be corroborated. To date, the Veteran has not been afforded a VA examination in response to his skin disorder or fatigue disability claims. The Veteran's service treatment records (STRs) indicate he was assessed for a left arm rash in August 1970. Additionally, the Veteran's outpatient treatment records from the Allentown VAMC show he has been treated for rosacea and fatigue. Accordingly, the case is REMANDED for the following actions: 1. Conduct all indicated development to corroborate the Veteran's claimed exposure to herbicides in service. If records necessary to corroborate the Veteran's in-service exposure to asbestos or herbicides cannot be obtained, a formal finding of unavailability must be completed for the record. 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed skin disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's skin disorder at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include his in-service treatment for a skin rash in August 1970. The examiner must specifically consider the Veteran's competent lay reports as they relate to the claimed disability. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 3. Finally, undertake any other development determined to be warranted, to specifically include consideration of whether additional VA examinations and/or medical opinions are warranted for the Veteran's remaining claims following development to corroborate his claimed herbicide exposures. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.