Citation Nr: 21042638 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-67 700 DATE: July 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for skin condition is granted Entitlement to service connection for chronic fatigue syndrome (CFS) is granted. FINDINGS OF FACTS 1. Resolving reasonable doubt in the Veteran's favor, he has bilateral hearing loss that is etiologically related to his military service. 2. Resolving reasonable doubt in the Veteran's favor, he has tinnitus that is etiologically related to his military service. 3. Resolving reasonable doubt in the Veteran's favor, his skin condition is etiologically related to his military service. 4. The preponderance of the evidence shows the Veteran is diagnosed with CFS, that he is a Persian Gulf Veteran, that his CFS is chronic, and there is no affirmative evidence to rebut the presumption of service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for skin condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for CFS are met. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to February 1991 and from March 2004 to July 2004, including in Southwest Asia. He served many additional years in the Air National Guard. The Veteran's claims for service connection for bilateral hearing loss and tinnitus come from an October 2016 rating decision. As to the claims for service connection for skin condition and CFS, they come from a December 2016 rating decision. The Veteran filed a Notice of Disagreement (NOD) regarding all the claims in August 2017. Two Statements of the Case (SOC) were issued regarding all the claims in November 2017. Thereafter, the Veteran filed a substantive appeal in December 2017 and requested a hearing. The hearing was conducted in April 2021 and transcript of the hearing is of record. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. Private audiogram from December 2017 shows that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. He also has tinnitus. The question is whether these current disabilities are related to active service or events therein. The Veteran reported that he was assigned to work on flight lines transporting injured veterans and weapons to and from aircrafts while in service. See October 2016 VA examination. Furthermore, he testified that, as medical evacuation operation officer, he was always on the flight ramp and he did not always wear his head gear. See hearing transcript at 14. The Veteran is competent to report this information and the Board of Veterans' Appeals (Board) has no reason to doubt its credibility. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, it is reasonable to assume that the Veteran was exposed to noise during his military duties. Thus, the Board accepts that he had some level of in-service hazardous noise exposure. In support of his claims, the Veteran submitted an evaluation and medical opinion from December 2017, where the examiner concluded that the Veteran's bilateral hearing loss and tinnitus are at least as likely as not due to his military noise exposure. Similarly, the Veteran submitted an opinion in April 2016 that reflects that his bilateral hearing loss and tinnitus are as likely as not etiologically related to his military noise exposure. The Audiologist who wrote that opinion noted that the Veteran's civilian occupation was a lawyer and administrator for 34 years, and the Veteran does not report participating in recreational activities that expose him to hazardous noise. The Audiologist explained that the Veteran was exposed to hazardous noise while working as medical service corps officer in the military, which caused acoustic trauma that resulted in bilateral hearing loss and tinnitus. Notably, the Veteran underwent VA examination in October 2016, where the examiner found that his puretone thresholds could not be reliably tested. That examiner also opined that the Veteran's tinnitus is less likely than not related to his military service. The examiner reasoned that the Veteran did not relate his tinnitus to specific incidents in service and tinnitus was not noted while he was in service. On review, the evidence is at least in equipoise as to whether the Veteran's current hearing loss and tinnitus are related to active service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss and tinnitus is warranted. 38 C.F.R. § 3.102. 3. Entitlement to service connection for skin condition is granted. A November 2016 skin examination reflects that the Veteran has diagnosis of basal cell and squamous cell carcinoma. Thus, the first element of a service connection claim is satisfied. As to the second element, the Veteran testified that his military occupation specialty as medical evacuation operation officer required him to work outside in the sun. See hearing transcript at 14. The Board finds his statements credible and probative in establishing the second element of a service connection claim. The November 2016 examiner opined that the Veteran's basal cell and squamous cell carcinoma are less likely than not related to "specific exposure event experienced by the Veteran during service in southwest Asia." This opinion does not address the Veteran's contention that extensive sun exposure in service caused his current condition. The examiner's rationale, however, is supportive of the contention that the Veteran's current skin condition is related to sun exposure to the extent the examiner proceeds to acknowledge that basal cell carcinoma is commonly found in the sun exposed area of the body and squamous cell carcinoma is caused by cumulative ultraviolet (UV) exposure. In addition, the Veteran submitted an August 2017 private medical opinion, where the examiner concluded that his basal cell and squamous cell carcinoma are at least as likely as not related to his sun exposure in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current skin condition is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for skin condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for CFS is granted. The Veteran asserts that he has chronic fatigue, which he attributes to his active service in Southwest Asia. He stated that after his service in the Persian Gulf, he experienced fatigue and that these symptoms have continued to the present. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) and includes CFS. 38 C.F.R. § 3.317(a)(2)(i)(B)(1). The Veteran had active service in Southwest Asia from December 1990 to February 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). In this case, the Veteran reported that he was diagnosed with CFS by his family doctor in the early 1990s. Id. at 5. Furthermore, the Veteran submitted a medical opinion from Dr. J.W.E. diagnosing CFS. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A November 2016 VA examiner opined that the Veteran's symptoms do not meet the criteria for CFS diagnosis. The examiner explained that other causes, such as the Veteran's PTSD and poor quality of sleep, have not been ruled out as the cause of his fatigue. Notably, during the hearing, in addition to fatigue, the Veteran testified that he passes out and he has difficulty concentrating. See hearing transcript at 4, 8. The November 2016 examiner did not consider these symptoms, rendering his opinion less probative that that from Dr. J.W.E. Although the VA examiner determined that a separate diagnosis of CFS was not appropriate, the private medical opinion shows diagnosis of CFS and the Veteran credibly testified that his family doctor also diagnosed him with CFS. Therefore, the Board finds that the evidence weighs in favor of finding that his symptoms meet the criteria for a diagnosis of CFS. The Veteran reports he has had extreme fatigue since his military service. See hearing transcript at 4. He testified that his productivity has significantly reduced, and he is unable to ride a bike or jog because of his fatigue. Id. at 6,7. The 2017 diagnosis by Dr. J.W.E. shows that the Veteran's CFS has existed from at least August 2017. Thus, it is considered chronic under the regulatory definition. Moreover, the CFS has manifested to a degree of 10 percent or more. Dr. J.W.E. stated that the Veteran met the 20 percent rating criteria under DC 6354 (symptoms nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year). The VA examiner did not diagnose CFS in part because the "Veteran has PTSD which has not been managed. He has sleep disturbance which has not been evaluated. Both of these could be the cause for his fatigue." (Emphasis added.) He concluded "the examiner does not have evidence nor by the Veteran's report that other competing explanations for his fatigue have been evaluated and ruled out." See 2016 VA examination report. The Board does not find that these statements are affirmative evidence that the disability was not incurred during the Veteran's Southwest Asia service, or that the disability was caused by a supervening condition or event that occurred between Southwest Asia service and the present. On the contrary, they are speculative at best and cannot be construed as affirmative evidence to meet the criteria of 38 C.F.R. § 3.317(a)(7)(i)-(iii). (Continued on the next page) As there is no affirmative evidence to the contrary, the Veteran's CFS is considered a MUCMI and presumptive service connection is warranted. The claim for service connection for CFS is granted pursuant to 38 U.S.C. § 1117; 38 C.F.R. § 3.317. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.