Citation Nr: 22018392 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-37 991 DATE: March 29, 2022 ORDER Service connection for a skin disorder (other than chloracne), to include as due to herbicide exposure, is denied. Service connection for bilateral sensorineural hearing loss (BHL) is denied. Service connection for vision impairment is denied. FINDINGS OF FACT 1. A chronic skin disorder (other than chloracne) did not manifest in service, was not aggravated by service, and/or otherwise attributable to any aspect of service. 2. BHL did not manifest in service, was not aggravated by service, and/or is otherwise attributable to any aspect of service. BHL did not manifest within one year of separation from service. 3. Vision impairment did not manifest in service, was not aggravated by service, and/or is otherwise attributable to any aspect of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder have not been met. 38 U.S.C. § 1101, 1110, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for BHL have not been met. 38 U.S.C. § 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for vision impairment have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Army from December 1966 to December 1969, including service in the Republic of Vietnam. The Veteran is the recipient of a National Defense Service Medal; a Vietnam Service Medal with 2 Bronze Stars; and a Republic of Vietnam Campaign Medal. The Veteran's military occupational specialty (MOS) was that of a personnel specialist (as per the Veteran's DD Form 214, related to the civilian occupation of a personnel clerk). SERVICE CONNECTION The Veteran asserts that the above-captioned disabilities were incurred in, aggravated by, or otherwise attributable to active-duty service. The Veteran further advances that a skin disorder, other than chloracne, is due to herbicide exposure. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Lynch v. McDonough, 21 F.4th 776 (2021). Certain chronic diseases, including sensorineural hearing loss (an organic disease of the nervous system), will be presumed caused by service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Service connection based upon in-service exposure to certain herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time to be related to such exposure. The diseases associated with herbicide exposure for purposes of the presumption do not include skin disorders (other than chloracne), and the Veteran has not been diagnosed with chloracne during the appellate period. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Even though the evidence does not warrant presumptive service connection, the Veteran is not precluded from establishing service connection for these contended disabilities with proof of direct causation. See Combee, 34 F. 3d 1039. Congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries for which service connection may be granted. See 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). Consequently, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes, including myopia and presbyopia, even if visual acuity decreased in service. Evidence and Analysis In the Veteran's September 1969 separation report of medical examination, a military clinician reported a normal evaluation of the eyes; ophthalmoscopic status; ocular motility; and ears. As to skin, the clinician reported tinea cruris. The report is bereft of any commentary as to whether the tinea cruris was an on-going defect or persistent diagnosis. Thus, the comment was bald and devoid of any indication of chronicity in service. The Veteran's bilateral vision was 20/20. The separation audiogram included the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 -- 0 LEFT 5 0 5 -- 5 In his September 1969 separation report of medical history, the Veteran indicated that he had not had and did not have eye trouble; hearing loss; or skin diseases. Moreover, the physician's summary only mentioned "mumps as a child [...] No ill effectsOK". Upon scrubbing for evidentiary guidance, the Veteran's other service treatments records (STRS) do not include complaints of, treatment for, or diagnoses of a skin disorder, BHL, or vision impairment. There is one record from April 1968 which reported the results of a gonorrhea culture smear (GC); however, this record did not mention tinea cruris (colloquially known as "jock itch"). In a September 2012 VA treatment record, a clinician noted that the Veteran complained of right ear hearing loss during service and skin problems "for years" (dry and cracking skin on the hands). At this time, the Veteran's lens, conjunctive, and cornea were clear. In a record of the same month, a clinician opined that the Veteran had undergone left eye surgery for a hole in the retina. In a January 2013 VA audiology note, a clinician noted that the Veteran sought hearing aid adjustments. In October 2013, the Veteran reported for a VA skin diseases examination. The clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and performed an appropriate evaluation (hereinafter "VA exam protocols"). The Veteran conveyed that he has been experiencing a rash since 1993 that does not go away, even though the Veteran uses prescribed cream. The clinician provided current diagnoses of rash on both groin areas and both hands (1993) and skin tags in eyelids of both eyes. The Veteran reported that he used unguent for itching on an as-needed basis. The clinician indicated that these diagnoses did not impact the Veteran's ability to work. Based upon consideration of the totality of evidence, to include findings from the instant evaluation, the clinician opined that the Veteran's claimed condition was less likely than not caused by an in-service, injury, event, or illness. As a rationale for this negative nexus opinion, the clinician indicated that a review of the evidence of records disclosed that a notation of "tinea cruris" (as discussed above) and not the current disabilities. Moreover, the evidence fails to show any documentation or treatment for an on-going chronic tinea cruris disability. Moreover, a fungal infection (tinea cruris), medically is normally an acute condition that resolves with appropriate and compliant treatment. Even though fungal infections may reoccur (especially when the same hygiene habits are maintained), the previous acute infection does not necessary cause subsequent fungal infections. VA treatment records from November 2013 suggested that the Veteran may have been treated for a left eye cataract by an unidentified private ophthalmologist. In the April 2013 notification letter, the Veteran was clearly informed that if he "want[s] [VA] to obtain any doctor, hospital, or medical reports on [his] behalf" he was requested to submit a VA Form 21-4142. The Veteran never provided identifying information for this private ophthalmologist, or a VA Form 21-4142 authorizing VA to obtain relevant medical records from the provider. As such, the duty to assist in obtaining such evidence was not triggered. In September 2015, the Veteran reported for a VA hearing loss examination. An audiologist followed VA exam protocols. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 65 95 90 LEFT 15 30 65 80 90 Speech recognition was 76 percent in the right ear and 72 percent in the left ear. The audiologist provided diagnoses of BHL in the frequency ranges of 500 to 4000 Hz and in the frequency range of 6000 Hz or more. The audiologist noted that the Veteran conveyed functional effects of BHL, namely an inability to hear without the volume of his hearing aids on maximum; the need to rely on his spouse to report what people say; and need for a very high television volumes (which is bothersome to his spouse). Martinak, 21 Vet. App. 447. Based on consideration of the totality of evidence, the audiologist opined that the Veteran's current BHL was not at least as likely as not caused by or the result of service. As a rationale for this negative nexus opinion, the audiologist opined that the Veteran's enlistment and separation examinations failed to disclose significant shifts (after the enlistment audiogram was converted from ASA to ISO as per regulations). Moreover, the Veteran's MOS, as discussed above, had a very low probability for hazardous noise exposure. And the Veteran reported that he worked as a diesel mechanic for 30 years and worked for 8 years at a company where he worked on "train wrecks with heavy equipment". In a November 2016 VA treatment record, a clinician indicated that he prescribed a topical cream to use twice a day for a fungal infection. In a brief and an informal hearing presentation, the Veteran's representative advanced that the Veteran warrants a new skin VA examination because the clinician did not consider the Veteran's account that a rash of tinea cruris has persisted since separation in 1969. As to the other claims, the representative did not advance additional arguments. As a point of clarity, the Board observes that the October 2013 VA clinician did note that the Veteran conveyed that he has been experiencing a rash since 1993 that does not go away, even though the Veteran uses prescribed cream; however, that issue was not present upon October 2013 VA evaluation. The Veteran (and his representative) insist that a skin disorder, BHL, and vision impairment were incurred or aggravated by service (in the case of the claimed skin disorder to include as due to herbicide agent exposure). While the Board recognizes that the Veteran is competent to report discernable symptoms and report etiological opinions of competent clinicians (Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428), the evidence of record fails to disclose that the Veteran has the training or expertise to render complex etiological opinions. 38 C.F.R. § 3.159(a)(1). Moreover, while the October 2013 VA examiner did not address whether the Veteran suffered from a skin disability related to herbicide agent exposure, the record fails to contain any evidence "indicating" such an association, aside from the Veteran's general, conclusory allegations. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (Since all claimants could make bare assertions that service caused or aggravated a medical problem, requiring examinations in such cases without more "would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case."). As the record lacks the requisite indication that the Veteran's current skin disability during the appellate period has any association with in-service herbicide agent exposure, VA's duty to assist in obtaining a VA medical opinion regarding this theory of entitlement was not triggered. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, the record lacks the requisite indication that the Veteran suffers from any current eye disabilities that are associated with his active duty service. Again, the elements necessary to trigger a VA examination as to this claim have not been satisfied. See id. While the Veteran sincerely believes that he incurred vision impairment in active service, the evidence of record does not contain any evidence, to suggest that possibility or any other relevant event, injury, or disease in service. The Veteran's STRs are entirely negative for vision complaints or impairments. In fact, at service separation, the Veteran affirmatively denied "eye trouble," physical examination of the eyes was clinically normal, and his vision was 20/20 bilaterally, without the need for correction. As noted above, conclusory generalized lay statements that a service event or illness caused a claimant's current condition (or lack thereof) are insufficient to require the Secretary to provide an examination. See Waters, 601 F. 3d at 1278. The Board assigns substantial probative weight to the VA examinations of record. In each examination instance, a medical/audiological practitioner reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. Moreover, these examiners supported their wholly negative nexus opinions with consideration of the evidence of record and medical/audiological knowledge. Contrary to the allegations set forth in the February 2022 brief, the Veteran has never explicitly stated that he has experienced tinea cruris on a continuous basis since service separation. At the October 2013 VA examination, he reported his current skin disabilities as having onset in 1993, many decades after separation from service. Likewise, in September 2012, the Veteran reported skin problems with his hands getting dry and cracked "for years" without specific reference to in-service onset of symptoms. The representative has made the inferential leap that the Veteran's tinea cruris has continued for years simply because it was noted upon service separation, despite a lack of any probative evidence to support such a conclusion. In this case, the October 2013 VA examiner's nexus opinion was factually accurate and supported by a plausible explanatory rationale that the Veteran's current skin disabilities are less likely than not etiologically related to the Veteran's in-service tinea cruris. The Board finds the September 2015 VA medical opinion addressing the Veteran's BHL to be highly probative because it was supported by a thorough explanatory rationale. While acknowledging that the Veteran's hearing was normal throughout military service, the VA examiner also explained that the Veteran had a low probability of noise exposure based on his MOS, and he had substantial post-service noise exposure. The Board finds the VA opinion to be factually accurate and sufficient to resolve the appeal. Moreover, to the extent that the Veteran reported right ear hearing loss since service in the September 2012 VA treatment records, this statement is not credible when viewed against the contemporaneous STRs, which show normal hearing at service separation and the Veteran's affirmative denial of hearing trouble at service separation. The current disability element of BHL, skin disorder, and (granting the benefit of doubt to the Veteran) a vision disability is present. However, the weight of evidence fails to establish that these disabilities are in any way medically related to the Veteran's active duty service. Saunders, 886 F. 3d 1356. Likewise, the evidence of record fails to disclose that BHL was diagnosed (and manifested to a compensable degree) during service or within one year of the Veteran's service, and as such, service connection cannot be established on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. While the Veteran contends that his skin disorder was caused by herbicide exposure. Neither the Veteran nor his representative have submitted any competent or probative evidence to support such an etiology, and as discussed supra, the record is otherwise devoid of any evidence indicating a potential association between the Veteran's generalized skin disorder (variably diagnosed as eczema and fungal infection) and herbicide agent exposure sufficient to trigger VA's duty to obtain a medical opinion on the issue. A claimant bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). Likewise. neither the Veteran nor his representative have submitted any competent or probative evidence to support the contention that a vision impairment (presumably any residuals of left eye surgery for a hole in the retina and/or possible left eye cataract) has any etiological relationship to service. See id. [Continued on Next Page] Considering the above analysis, the weight of competent and probative evidence is persuasively against the Veteran's three service connection claims. As such, there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Lynch, supra. Entitlement to service connection for BHL, a skin disorder, and visual impairment is denied. M. Galante Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.