Citation Nr: 18139630
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 14-28 278A
DATE:	September 28, 2018
ORDER
Entitlement to service connection for an eye condition, diagnosed as left eye blindness, is denied.
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for tinnitus, as secondary to bilateral hearing loss, is granted.
Entitlement to service connection for a heart condition is denied.
Entitlement to service connection for hypertension is denied.
REMANDED
Entitlement to service connection for a skin condition is remanded.
FINDINGS OF FACT
1. The Veteran’s eye condition, diagnosed as left eye blindness, was noted on entrance into service and was not aggravated by, or related to any event or injury in service.
2. The evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is attributable to in-service acoustic trauma.  
3. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is etiologically related to his service-connected bilateral hearing loss.  
4. The evidence of record does not reflect a current diagnosis of a heart condition; the Veteran has not provided any lay or medical evidence that he ever suffered from a heart condition. 
5. Hypertension was not incurred in, aggravated by, or related to any event or injury in service.
CONCLUSIONS OF LAW
1. The criteria for service connection for an eye condition, diagnosed as left eye blindness, have not been met.  38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303.
2. The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.120, 3.303, 3.307, 3.309, 3.385. 
3. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 
4. The criteria for service connection for a heart condition have not been met.  38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 
5. The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1967 to April 1969.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  
Service Connection
Initially, the Veteran’s claims being adjudicated herein are all for service connection.  As such, the generally applied legal standards will be detailed below and separate analyses for each issue will follow.  
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C.       § 1110; 38 C.F.R. § 3.303(a). 
Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service.  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 
Certain chronic diseases (e.g., hearing loss and tinnitus as organic diseases of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307, 3.309.  If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker, 708 F.3d 1331. 
1. Entitlement to service connection for an eye condition, diagnosed as left eye blindness
First, the Veteran asserts that his left eye blindness is related to his service. 
Incorporating the legal standards stated above and moving directly to the service connection analysis, a March 2012 VA primary care note reflects left eye visual loss.  As the record reflects a current diagnosis of the claimed condition, the first element of the claim for service connection has been met. 
What remains to be established is that the Veteran’s left eye blindness is related to his period of active duty service. 
Initially, the Veteran’s October 1966 entrance examination notes “defective vision – uncorrected” with evaluation of right eye vision at 40/20 and left eye vision at 30/20.  The Board finds that the Veteran is not entitled to the presumption of soundness with respect to left eye blindness as defective vision was noted on entrance.  38 U.S.C. §§ 1111, 1153.  Since a preexisting vision disability was noted upon entry into service, the burden falls upon the Veteran to establish aggravation of the disorder.  Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 
When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  In such claims, a veteran must simply show that there was an increase in disability during service to trigger the presumption of aggravation.  See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  “If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing ‘that the increase in disability is due to the natural progress of the disease.’”  Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153).  This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition.  See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306 (b). 
Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.  Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).  Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 C.F.R. § 3.306(b). 
In December 1967, during service, the Veteran underwent an ophthalmoscope which revealed clear, bilateral 20/20 vision.  
As noted above, the Veteran is now only entitled to service-connection if there is “aggravation in service” of the underlying condition.  Crowe, 7 Vet. App. at 247-48; Hunt, 1 Vet. App. at 297.  As indicated by the only service treatment records reflecting treatment for the Veteran’s eyes, the Veteran’s eyes improved in service.  He has also not presented any lay or medical evidence that there was any increase in the severity of the condition in service.  
As such, the Board finds that the second element of service connection, in-service aggravation, has not been met.  
The Board acknowledges that the Veteran was not provided a VA examination in connection with this claim.  However, as stated above, as the Veteran has not provided any indication that there was an in-service aggravation, and that his eyes were recorded as getting better, the Board finds that the Veteran is not entitled to a VA examination for this claimed condition.  Waters v Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the notion that merely filing a claim or that a claimant’s generalized conclusory statement regarding nexus entitles the claimant to a VA examination as this would eliminate the carefully drafted statutory scheme).  Therefore, the Board finds that no VA examination is required.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Consideration has been given to the Veteran’s assertions that his eye condition, diagnosed as left eye blindness, is related to service and has been a continuous problem for him.  However, while as a lay person, he is competent to report on the symptoms he has experienced, without even the allegation of an in-service event or injury, the Board cannot grant service connection.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  
As such, a preponderance of the evidence is against the claim and entitlement to service connection for an eye condition, diagnosed as left eye blindness, is not warranted and must be denied. 
2. Entitlement to service connection for bilateral hearing loss
As noted above, certain chronic diseases (e.g., hearing loss and tinnitus as organic diseases of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307, 3.309.  If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. 
Specifically, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when the Maryland CNC speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.
The Veteran underwent a VA examination in September 2011 for his claimed bilateral hearing loss.  Audiometry findings at that time reflected that the Veteran had bilateral hearing loss for VA purposes and the examiner diagnosed sensorineural hearing loss.  Therefore, the Veteran has a current disability and the first element of service connection has been met.  
Moving to the second element of service connection, an inservice event, the Veteran’s DD 214 reflects that his primary military occupational specialty was as an infantryman.  Further, he spent a year and 2 months stationed at the Korean Demilitarized Zone during the Vietnam Era.  As such, the Board finds that the Veteran had an in-service injury, acoustic trauma, due to his MOS as an infantryman in Korea during the Vietnam era.  
With respect to the third element of service connection, a medical nexus between the disability and in-service event, the medical evidence is in equipoise that the Veteran’s in-service acoustic trauma caused his current bilateral hearing loss. 
The September 2011 VA examiner opined that the Veteran’s bilateral hearing loss was not related to in-service acoustic trauma because the Veteran “reported only 7 months of infantry noise exposure” and 30 years of occupational noise exposure; in addition to the fact that the Veteran had a 2007 cardiovascular accident (or stroke) and that it may be etiologically related to his hearing loss.  
In December 2011, the Veteran reported that his hearing loss has been a chronic problem since he left service.  
The Veteran submitted a private nexus opinion in July 2013 from Dr. N.O.  Dr. N.O. opined that the Veteran’s bilateral hearing loss, more pronounced on the left side, manifested in difficulty following a group conversation, requiring high volume on the radio and television, and needing people to repeat things to him.  Further, that the Veteran’s bilateral hearing loss had been a problem since he left service, where he was exposed to high frequency arms fire and heavy weapon noises and that his hearing loss is secondary to in-service noise exposure.  
The Veteran was provided another VA examination in March 2017, wherein the VA examiner noted a current disability and opined that the Veteran’s bilateral hearing loss was less likely than not related to in-service noise exposure.  Specifically, the VA examiner noted that the Veteran’s entrance and exit examinations were normal and that his hearing loss was likely due to the normal aging process or presbycusis; and less likely than not related to his military service.  
In reviewing all of the evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran’s bilateral hearing loss is due to his in-service acoustic trauma.  While the September 2011 and March 2017 VA examinations both opined that the Veteran’s post-service occupational noise exposure and his 2007 cerebrovascular accident were more likely the cause of his hearing loss, these opinions also were based on a finding that the Veteran did not have continuity of symptomatology since service.  In contrast, the December 2011 statement from the Veteran and the July 2013 opinion from Dr. N.O. reflect that the Veteran had been experiencing hearing loss since service.  Further, they did not provide a supporting rationale as to his cerebrovascular accident could have caused his bilateral hearing loss.  As such, the Board places a greater probative weight on the private opinion from Dr. N.O. in conjunction with the Veteran’s competent lay statements of having experienced hearing difficulties since service. 
Therefore, the Board finds the evidence is at least in equipoise that the Veteran’s bilateral hearing loss is related to his in-service acoustic trauma, and resolving reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
3. Entitlement to service connection for tinnitus
Turning to the Veteran’s claim for service connection for tinnitus, the Veteran has reported continuous ringing in his ears since service.  Additionally, there is evidence in the record that tinnitus is due to his now service-connected bilateral hearing loss.
Service connection may be established on a secondary basis for a disability caused or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  To establish service connection for a secondary disability, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability.  Any increase in severity of a nonservice-connected condition that is caused by a service-connected condition (as opposed to natural progression) will also be service connected.  See 38 C.F.R. § 3.310(b). 
Specific to tinnitus, as it is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).  
The Veteran claims he experiences tinnitus, and therefore the first element of service connection has been found.  
The above decision awards service connection for bilateral hearing loss; therefore, the Veteran has a service-connected disability.
Finally, moving to the third element of secondary service connection, a causal relationship between the service-connected bilateral hearing loss and tinnitus, the Board finds that in applying the benefit of the doubt, the Veteran’s tinnitus is caused by service-connected bilateral hearing loss. 38 C.F.R. § 3.310.  The September 2011 VA examiner opined that the Veteran’s tinnitus was more likely due to his occupational noise exposure and his 2007 stroke and “lowly probable related to acoustic trauma as infantryman.”  However, the July 2013 private examiner, Dr. N.O. opined that the Veteran’s tinnitus was most likely due to sensorineural hearing loss and the March 2017 VA examiner opined that the Veteran’s tinnitus was a symptom of his bilateral hearing loss.  
As such, and in light of the now-service connected bilateral hearing loss, the Board finds that the evidence is at least in equipoise and service connection for tinnitus, as secondary to bilateral hearing loss, is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.
4. Entitlement to service connection for a heart condition
The Veteran asserts that he has a heart condition related to his service in Korea and exposure to herbicide agents while stationed near the Korean DMZ.  
All legal standards noted above as they apply to service-connection are incorporated herein.  However, with regard to herbicide agent exposure, VA laws and regulations provide that a Veteran who served in a unit determined by VA or the Department of Defense (DoD) to have operated in the DMZ between April 1, 1968 and August 31, 1971 are legally presumed to have been exposed to an herbicide agent in the absence of affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iv).
The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; Ischemic heart disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).
The availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Initially, the Board finds that the Veteran’s service treatment records reflect service at Camp Casey, Korea; an Army post the VA considers having had potential exposure to herbicide agents.  Further, the Veteran’s DD 214 reflects that he served with a unit also assumed to have had exposure to herbicide agents.  Finally, the Veteran had a year and 2 months of foreign service in Korea, and based on his dates of active duty service and the records available, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during his time at Camp Casey, Korea between 1968 and 1969.  
Moving to the merits of the claim, the first element of service connection requires a current diagnosis.  The Veteran has claimed a “heart condition” and in December 2011 submitted a completed Disability Benefits Questionnaire (DBQ) for Ischemic Heart Disease; however, there is no indication that the Veteran currently (or has ever) suffered from a heart condition.  The DBQ states that the Veteran does not have ischemic heart disease, and does not provide a diagnosis of any other heart condition.  VA treatment records are also silent for a heart condition.  
The Board notes that the Veteran did suffer a cerebrovascular accident (also known as a stroke) in 2007, but that is not a heart condition nor does the medical evidence reflect that he had an underlying heart condition that caused the stroke.  
As such, the Board finds that the Veteran does not have a current heart disability and the first element of service connection has not been met.  
The Court has held that a current disability is a cornerstone of a service connection claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Without a current disability, analysis for service connection either on a presumptive or direct basis, cannot move forward.  As such, the Board’s analysis stops here.  As such, the Board concludes that a preponderance of the evidence is against the claim for service connection for a heart condition, to include as due to exposure to herbicide agents, and the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.
5. Entitlement to service connection for hypertension
The Veteran also asserts that his hypertension is related to his service, to include exposure to herbicide agents. 
Again, the Veteran has been found to have been exposed to herbicide agents and the disabilities associated with such exposure are listed in 38 C.F.R. § 3.309(e).  
Moving to the merits of the Veteran’s claim, VA treatment records reflect a current diagnosis of hypertension.  Therefore, the record reflects the Veteran has a current diagnosis of hypertension, and the first element of the claim for service connection has been met. 
What remains to be established is that the Veteran’s hypertension is related to his period of active duty service. 
With respect to the second element of service connection, an in-service event or injury, the Veteran claims that his hypertension is related to his conceded exposure to herbicide agents.  However, hypertension is not a disability found in 38 C.F.R. § 3.309(e), and service-connection for hypertension due to exposure to herbicide agents is not warranted.  
However, although presumptive service connection is not warranted, that does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl, 21 Vet. App. 120; see also Combee, 34 F.3d 1039.  The Board notes that the Veteran has not been provided a VA examination for his claimed hypertension.  
However, the Veteran has not provided any lay statements or medical records indicating an in-service event which caused or contributed to his hypertension outside of exposure to herbicide agents; nor has he provided any evidence indicating an association between his herbicide agent exposure and his service, beyond his lay contentions.  As the Veteran has provided no other indication that his hypertension is related to service, the Board finds it has no duty to provide an examination for the Veteran’s hypertension.  There is no indication of an association between the Veteran’s service, including any exposure to herbicide agents, and his current disability.  Waters, 601 F.3d at 1278-79.  Therefore, the Board finds that no VA examination is required in this case.  McLendon, 20 Vet. App. at 81.
As such, the Board concludes that a preponderance of the evidence is against the claim for service connection for hypertension, to include as due to exposure to herbicide agents, and the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.
REASONS FOR REMAND
Entitlement to service connection for a skin condition is remanded.
The Veteran claims that he has a skin condition related to his active duty service.  
He was provided a VA skin examination in January 2012 where the VA examiner, after reviewing the Veteran’s STRs and noting a left-hand laceration in service, presumed the evaluation was only for scarring of the hands.  There were no scars or skin conditions found on the hands and the examiner opined that no skin condition was related to service as there was no existing skin condition.  
However, VA treatment records reflect that the Veteran has dermatophytosis of the foot.  When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 
Unfortunately, the Board finds that the January 2012 VA examination is inadequate as the claim was for a “skin condition”, the Veteran had a skin condition, and it was not considered or evaluated.  As such, the claim must be remanded for a VA examination to determine the nature and etiology of the Veteran’s skin condition of the foot.  
As the Veteran is in receipt of VA treatment, updated treatment records should be obtained upon remand.  
The matter is REMANDED for the following actions:
1. Obtain the Veteran’s VA treatment records from September 2016 to the present. 
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of dermatophytosis, or any other identified skin condition.  The clinician must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including alleged treatment in service, and to include conceded exposure to herbicide agents as claimed by the Veteran.  
A complete rationale for all opinions must be provided.  If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation.  The clinician must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician.

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	LM Stallings, Associate Counsel 

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