Citation Nr: 22008052 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-36 222 DATE: February 11, 2022 ISSUES Entitlement to service connection for a skin disability. Entitlement to an increased initial disability rating in excess of 0 percent for a bilateral hearing loss disability. ORDER Entitlement to service connection for a skin disability is granted. REMANDED Entitlement to an increased initial disability rating in excess of 0 percent for a bilateral hearing loss disability is remanded. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's skin disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1966 to July 1969, with service in Vietnam. This matter arises from an appeal to the Board of Veterans' Appeals (Board) of a June 2016 rating decision issued by the Department of Veteran's Affairs Regional Office (RO). The Veteran testified in a videoconference Board hearing in July 2022 before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is associated with the claims file. The Board finds that further evidentiary development is required before the claim for an increased rating for a bilateral hearing loss disability can be adjudicated. Please note that the case has been advanced on the docket pursuant to 38C.F.R. §20.900 (c). Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38C.F.R. §3.303 (d). 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 evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to service connection for a skin disability. The Veteran is claiming service connection for his skin disability. In his November 2015 Statement in Support of his Claim he contends that this condition had its onset in service while he was in Vietnam and has continued since his discharge. Regarding the first element of service connection, which is a current disability, the record contains a December 2018 letter from a private treatment provider Dr. D.E. who noted a skin diagnosis of photosensitivity. As the Veteran has been shown to have a current disability, he has met the first criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As to the second element of service connection, which is an in-service event, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences in service. See Jandreau, 492 F.3d at 1377. The Board recognizes that on his June 1969 separation examination from service the Veteran checked "skin condition" as problematic. During the January 2022 Board hearing the Veteran and his wife credibly testified that he began to experience symptoms of his current skin disability, including a rash, while deployed in Vietnam and these symptoms have continued since discharge. He testified that even while still in service his skin began to break out into painful little boils which would then pus. During the hearing the Veteran testified that the skin problems he was currently experiencing were the same symptoms which he was referring to during his 1969 separation examination. As such, the Board finds the Veteran's report of these in-service incurrences to be credible and thus the Veteran has also met the second criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Turning to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38C.F.R. §3.303(a). At the outset the Board notes that the Veteran's service treatment records are silent for a diagnosis of or treatment for a skin disability. As mentioned earlier, the Veteran did indicate "skin conditions" as problematic during his June 1969 separation examination from service. VA treatment records contain a January 1999 diagnosis for a drug rash. VA treatment records also contain a June 2001 diagnosis of dermatitis as a skin disorder. In October 2019 a private medical opinion, dated December 2018, was added to the claims file from Dr. D.E. The letter explained that the Veteran has suffered from photosensitivity since his service in Vietnam. Dr. D.E. indicated that the Veteran reported that he did not have the skin condition prior to service but since leaving Vietnam in 1969 he suffered from extreme sun sensitivity, including blisters on his back when exposed to sunlight even for short periods of time. The examiner noted that the Veteran's condition was chronic and has been present for upwards to fifty years. Upon review of the evidence of record, the Board finds the opinion of Dr. D.E. to be of great probative value. The examiner's opinion considered the Veteran's specific contentions, the claims file, and clinical medical evidence, before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner's positive etiological opinion was supported by a sufficiently clear and well-reasoned rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, Dr. D.E. explained that in consideration of the Veteran's account of having no preexisting skin condition as well as the manifestation of symptoms since service, this condition has been chronic since discharge. There is no evidence that Dr. D.E. was not competent or credible, and as the report was based on accurate facts, the Board finds that it is entitled to significant probative weight as to the etiology of the Veteran's diagnosed photosensitivity disorder. See Nieves-Rodriguez, Id. Notably, there are also no negative opinions of record for consideration. However, there is probative evidence of record that is sufficient to find that service connection for a skin disability is warranted. Accordingly, after careful review of the record, including the medical evidence, particularly the positive highly probative medical opinion of Dr. D.E., as well as the credible lay statements of record, and resolving any reasonable doubt in the Veteran's favor, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's skin disorder is related to service. See Lynch v. McDonough, 999 F.3d 1391, at 1395 (Fed. Cir. 2021). As such, service connection for the Veteran's skin disorder is warranted. See 38U.S.C. §5107(b); 38C.F.R. §3.102. REASONS FOR REMAND 1. Entitlement to an increased initial disability rating in excess of 0 percent for a bilateral hearing loss disability is remanded. The Veteran contends that his bilateral hearing loss disability is more severely disabling than reflected in the currently assigned rating. In evaluating the severity of a particular disability, it is essential to consider its history. 38C.F.R. §4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was last afforded a VA examination for his hearing loss in February 2016. Subsequently at the January 2022 Board hearing the Veteran testified that this disability has continued to worsen. Specifically, the Veteran testified that he got new hearing aids after his last VA examination and he and his wife testified that he continues to have problems understanding what people are saying. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent a VA audiological examination in February 2016, he should be afforded a new VA examination to assess the current nature, extent and severity of his service- connected bilateral hearing loss disability. Additionally, the Board notes that the record indicates there may be outstanding records relevant to the Veteran's claim. Specifically, at the January 2021 Board hearing the Veteran testified that prior to 2018 or 2019 he received private treatment for his hearing loss disability. It does not appear as though these records have been associated with the claims file. VA has a duty to assist the Veteran in obtaining all relevant records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty has not been met with regard to the outstanding records, and therefore, on remand, the RO should follow proper procedures to obtain and associate these records with the claim file. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide names, addresses and approximate dates of treatment of his service-connected hearing loss disability. The Veteran should be provided the appropriate releases for VA to obtain any identified private sources of treatment Thereafter, the AOJ should attempt to obtain outstanding records from any identified sources for which the Veteran has provided appropriate signed releases. Any records obtained should be associated with the claims file. All attempts to obtain these records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain any outstanding VA treatment records regarding the Veteran's treatment for his service-connected bilateral hearing loss disability. 3. Schedule the Veteran for an audiological examination to determine the current nature, extent, and severity of his service-connected bilateral hearing loss. The examiner should perform all indicated tests and studies and report all clinical findings in detail. The examiner is requested to fully describe the functional effects caused by the Veteran's hearing loss. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. 4. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim with consideration of the evidence added to the electronic record since the SOC in May 2018. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.