Citation Nr: 22014082 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-52 563 DATE: March 11, 2022 ORDER Service connection for tinnitus is denied. Service connection is denied for sebaceous cysts on the scalp. REMANDED Service connection for a skin disorder, including residual scars from cysts excision, is remanded. FINDINGS OF FACT 1. Tinnitus did not begin during service and is not otherwise related to service. 2. The Veteran does not have a current diagnosis for sebaceous cysts on the scalp. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria have not been met for service connection for sebaceous cysts on the scalp. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (providing that where the law, and not the evidence, is dispositive of a claim, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Legal Criteria Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). 1. Tinnitus Factual Background The Veteran filed an October 2014 claim for service connection for tinnitus. In September 2013 VA treatment, the Veteran reported hearing problems and tinnitus. The Veteran received a May 2015 VA audiology examination. The Veteran reported recurrent tinnitus that began in the late 1980s or early 1990s. The examiner opined it was at least as likely as not that tinnitus was a symptom associated with hearing loss. The examiner explained, tinnitus is known to be a symptom associated with hearing loss. Additionally, the examiner opined tinnitus was less likely than not caused by or the result of military noise exposure. The examiner explained that hearing was normal at discharge in 1976 and the Veteran reported tinnitus onset occurring in the late 1980s or early 1990s. In July 2017 VA treatment the Veteran reported chronic tinnitus. During the July 2021 Board hearing, the Veteran explained he was exposed to hazardous noise levels during service. The Veteran stated he was exposed to grenade explosions, loud engines running for certain lengths of time during repairs, rifle fire, and machine gun fire during training. The Veteran continued to report onset in the late 1980s and early 1990s. Analysis The Board finds service connection for tinnitus is not warranted. First, there is a current diagnosis. The Veteran has reported recurrent tinnitus during the May 2015 VA examination and during VA treatment. Second, there was noise exposure during service. The Veteran is competent to report the things he observed during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Board finds the Veteran's statements credible as they are consistent with his service. The Veteran's DD214 showed a medal for Marksman Rifle. Lastly, the Board finds the most probative evidence of record does not show tinnitus began during service or is otherwise related to service. The May 2015 VA examination opinion makes clear tinnitus is related to bilateral hearing loss. The examiner explained that tinnitus is a symptom associated with bilateral hearing loss. The Board notes the Veteran is not service connected for bilateral hearing loss. Tinnitus did not begin during service. The examiner explained the Veteran's hearing was normal at discharge. Additionally, the examiner noted the Veteran's reports that tinnitus did not begin until the late 1980s or early 1990s, which was several years after discharge. The Board finds the Veteran's statements regarding onset to be competent (that is, qualified) and credible. Accordingly, service connection is denied for tinnitus. Because the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Sebaceous Cysts Factual Background The Veteran filed an October 2014 claim for service connection for sebaceous cysts of the scalp. The Veteran received a May 2015 VA examination. The examiner stated there were not current cysts and the last was removed in 1978. During the July 2021 Board hearing the Veteran reported he did not currently have cysts only residual skin problems from the cysts removed during service. Analysis The Board finds service connection is not warranted for sebaceous cysts on the scalp. There is no current diagnosis for sebaceous cysts. The Veteran explained the last cyst occurred in 1978 and the only current symptoms were residuals from cysts excision. The Board notes residuals for cysts excision are still on appeal. However, without a current diagnosis of an additional disability, the Board is unable to grant a claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Skin disorder Remand is required for an adequate scar VA examination and opinion to assess the residuals of sebaceous cyst removal during service. The Veteran received a May 2015 VA scar examination. The examiner noted scars or disfigurement of the head face and neck with an onset noted in 1975. Later in the same examination the examiner stated they were unable to visualize a car on the Veteran's scalp. The examiner opined there was less likely than not a diagnosis of scarring from a cyst removal. The examiner stated there was no visible scarring. The examination also included pictures of the top of the Veteran's scalp. The examination an opinion is not adequate. First, the examiner's opinion contradicts the findings in the diagnosis section. Second, scars can be easily observed by the Veteran. Lastly, the examination is not consistent with the records. A November 1975 service treatment record (STR) note multiple cysts of the scalp. An October 1975 STR noted a cyst on the back of the scalp. The examiner's assessment only focused on the top of the Veteran's scalp and not the entire scalp. Accordingly, a new VA examination and opinion are required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2017 to present. 2. Schedule the Veteran for a VA examination for his skin disorder, including all residuals of cyst excisions during service. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the skin disorder, including scarring, at least as likely as not (a 50% or greater possibility) related to service, including removal or multiple sebaceous cysts during service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted (stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Whipple, C 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.