TINNITUS

Summary

The veteran, who served in the Army from June 1974 to December 1977, appeals the denial of service connection for tinnitus and acne conglobata, and the denial of a motion to advance his claim on the docket. The Board granted service connection for tinnitus, finding that the veteran's testimony regarding its onset during service was credible and corroborated by service treatment records showing hearing loss. The Board resolved doubt in the veteran's favor, granting service connection for tinnitus. For acne conglobata, the Board recharacterized the claim from acne vulgaris. While the enlistment examination noted common acne, the veteran was diagnosed with acne conglobata during service, which progressed in severity. The Board found a private medical opinion from a Board-certified dermatologist to be the most probative evidence, concluding that the condition was more likely than not aggravated by military service, distinguishing it from common acne and finding the VA examiner's opinion inadequate. Service connection for acne conglobata was granted. The motion to advance the claim was denied as the veteran did not meet the criteria for expedited review. The Board remanded the claim for a chronic ear disability, to include as secondary to hearing loss, for further development, including a VA examination to diagnose the condition, assess functional impairment, and opine on service connection and aggravation by hearing loss.

Rationale

Veteran's testimony of onset during service; Corroborated by service treatment records showing hearing loss; Resolved doubt in veteran's favor

Full Decision Text

Citation Nr: 22037348
Decision Date: 07/05/22	Archive Date: 07/05/22

DOCKET NO. 17-63 412
DATE: July 5, 2022

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for acne conglobata is granted.

The motion to advance the claim on the Board of Veterans' Appeals (Board) docket is denied.

REMANDED

Entitlement to service connection for a chronic ear disability, to include as secondary to service-connected hearing loss, is remanded.

FINDINGS OF FACT

1. The Veteran's tinnitus began during military service and has continued since. 

2. Although acne is noted on the Veteran's enlistment examination, the distinct and more severe acne conglobata was not noted on enlistment and was diagnosed during military service; he has continued to receive treatment for acne conglobata since the diagnosis in service. 

3. Resolving reasonable doubt in the Veteran's favor, his acne conglobata began during active service. 

4. Even accepting that the Veteran's acne conglobata was pre-existing, the evidence demonstrates that the acne condition was aggravated by military service.   

5.  The U.S. Department of Veterans Affairs (VA), received a motion on May 24, 2022, to advance the Veteran's case on the Board's docket. The Veteran's case does not involve interpretation of law of general application affecting other claims, the appellant is not seriously ill or under severe financial hardship, and sufficient cause to advance the case on the Board's docket has not otherwise been shown.

CONCLUSIONS OF LAW

1. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for acne conglobata have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306.

3. The criteria to advance the Veteran's case on the Board's docket have not been met. 38 U.S.C. § 7107 (a); 38 C.F.R. § 20.800(c).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1974 to December 1977. 

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement in July 2015. The RO issued a statement of the case in October 2017. The Veteran submitted his substantive appeal (VA Form 9) in November 2017. The appeal has previously been before the Board in December 2016 and May 2019, on both occasions remand was required for further action by the RO. The RO issued a supplemental statement of the case in July 2020. The appeal has been returned to the Board for further appellate review. 

The Board notes that VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), electing Direct Review under the Appeals Modernization Act (AMA), for the issues specified above was received in June 2021. However, in June 2021, the Veteran was advised that those issues could not be docketed as AMA and that the appeal would remain in the Legacy system. A letter was received from the Veteran's representative in February 2022, stating that the Veteran wants the issues to proceed under Legacy. The appeal is appropriately docketed as a Legacy appeal.

The Board also points out that the issue of service connection for acne vulgaris has been recharacterized to reflect service connection for acne conglobata as the Veteran and his representative have repeatedly and explicitly stated that the claim is for acne conglobata. 

The Veteran contends that his diagnosed tinnitus should be service connected because he began to have ringing in his ears during military service and the condition has continued since then. 

He also maintains that although he had acne prior to entering military service, his acne conglobata should be service connected because he was diagnosed with that condition during military service and has continued since. He also asserts that his acne was aggravated by military service because when he entered service he had some acne on his back, but it then worsened and spread to his face, neck, back and chest.

He further contends that he has chronic ear pain and wax buildup that smells which should be service connected as secondary to his service-connected hearing loss.  


 claim is for acne conglobata. 

The Veteran contends that his diagnosed tinnitus should be service connected because he began to have ringing in his ears during military service and the condition has continued since then. 

He also maintains that although he had acne prior to entering military service, his acne conglobata should be service connected because he was diagnosed with that condition during military service and has continued since. He also asserts that his acne was aggravated by military service because when he entered service he had some acne on his back, but it then worsened and spread to his face, neck, back and chest.

He further contends that he has chronic ear pain and wax buildup that smells which should be service connected as secondary to his service-connected hearing loss.  

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

1. Entitlement to service connection for tinnitus

Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." 59 Fed. Reg. 17,297 (April 12, 1994). 

The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 

Having reviewed the record pertaining to this claim, the Board has determined that service connection for tinnitus is warranted. 

The Veteran has explained that he first began hearing ringing in his ears during his military service and that this has continued since his military service. A layperson is competent to report on information that was observed and is personally known to them, including the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

The Veteran was afforded a VA hearing examination in September 2014, which acknowledged that the Veteran has recurrent tinnitus, but it was noted by the examiner that the Veteran indicated the onset of his tinnitus was 22 years after service. However, in February 2022, the Veteran submitted a statement firmly denying that he said his tinnitus began 22 years after he left the Army. He then recounted that the ringing in his ears began during basic training when they were out on the range learning how to throw hand grenades. The service treatment records reflect that upon separation the Veteran had hearing loss, which substantiates that he was exposed to noise during military service and supports his statements that the tinnitus began during service. 

Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether tinnitus is related to service. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, having resolved
 Veteran submitted a statement firmly denying that he said his tinnitus began 22 years after he left the Army. He then recounted that the ringing in his ears began during basic training when they were out on the range learning how to throw hand grenades. The service treatment records reflect that upon separation the Veteran had hearing loss, which substantiates that he was exposed to noise during military service and supports his statements that the tinnitus began during service. 

Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether tinnitus is related to service. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

2. Entitlement to service connection for acne conglobata

Upon enlistment it was noted that the Veteran had acne on his back. See Enlistment Examination, June 1974. However, acne conglobata was not indicated upon entrance into military service. An article regarding acne conglobata was received in the record in February 2022. The article explains that acne conglobata is a very severe, but fairly rare, form of inflammatory acne, and that acne conglobata is separate from more common nodulocystic acne. Although the article states that acne conglobata can start as typical acne vulgaris that slowly gets worse, it is clear that acne conglobata is a distinct and more severe form of acne than common acne vulgaris. Another article in the record, Acne Conglobata vs. Acne Fulminans, also makes an obvious distinction between acne conglobata and nodulocystic acne vulgaris as different diseases. That article states, "Just because your acne is severe, it doesn't automatically mean you have acne conglobata. Acne conglobata is rare, so odds are what you really have is nodulocystic acne vulgaris."

The service treatment records indicate that upon enlistment in June 1974, the Veteran had common acne of the back. However, in May 1976 the Veteran was diagnosed with chronic cystic acne of the face, neck, back and chest. In November 1976 he was diagnosed with acne conglobata. Thus, the diagnosis of acne conglobata was first made during the Veteran's military service. 

In October 1979, the Board denied service connection for acne. However, at that time, the Board did not consider that the Veteran's acne conglobata was first diagnosed in service, and that this is a distinct form of acne, as discussed above. The Board approached the claim as simply a claim for acne, but the condition is much more complicated than that. The 1979 Board decision also found that the Veteran's acne did not increase in severity. However, that is not consistent with the record. The Veteran's acne upon entrance into the military was common acne, it then developed into cystic acne and was then diagnosed as acne conglobata, a very severe and rare form of acne that is difficult to treat. See Service Treatment Records; see also Medical Article, An Overview of Acne Conglobata. Thus, the diagnosis of acne conglobata shows a recognition in the service treatment records that the Veteran's acne had increased in severity. 

A May 2017 Skin Disability Benefits Questionnaire (DBQ) completed by T.F., DO, received in December 2017, opines that it is more likely than not that the conglobata acne started while the Veteran was in the Army because the first treatment for that condition began more than six months after enlisting.

Another Skin DBQ was received in July 2018, this time from a specialist in dermatology, Dr. L.A.C., Board Certified Dermatologist. After a review of the records and physical examination, Dr. L.A.C. determined that the Veteran was originally diagnosed with acne conglobata when he was in the military and that he has continually been treated since. It was also opined that considering the extensive treatment that was needed for the Veteran while on active military duty it is more likely than not that his acne was aggravated by his military service. 

The Veteran was afforded VA skin examinations in March 2015, April 2017, November 2017, August 2018, and September 2020. However, the only examiner providing an opinion regarding service connection was the August 2018 examiner. The examiner provided a diagnosis of acne vulgaris, despite multiple diagnoses in the record of acne conglobata, and opined that the condition that clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury
 that he has continually been treated since. It was also opined that considering the extensive treatment that was needed for the Veteran while on active military duty it is more likely than not that his acne was aggravated by his military service. 

The Veteran was afforded VA skin examinations in March 2015, April 2017, November 2017, August 2018, and September 2020. However, the only examiner providing an opinion regarding service connection was the August 2018 examiner. The examiner provided a diagnosis of acne vulgaris, despite multiple diagnoses in the record of acne conglobata, and opined that the condition that clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner's rationale ultimately correlated acne vulgaris and acne conglobata, finding that they are the same disease. Thus, because they are the same condition, the pre-existing acne was not aggravated as this was a natural progression. However, that determination is not consistent with the medical literature provided in the record and discussed above. 

Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Id. Although the August 2018 examiner provided a rationale, it is not consistent with the literature of record. Thus, the examiner did not recognize and address valid medical literature tending to support the Veteran's contention. Therefore, the Board finds the August 2018 VA skin opinion to be inadequate. 

Furthermore, the Veteran raised the concern that the August 2018 examiner is not a specialist in dermatology, as she is a general family medicine nurse practitioner. The Veteran contends that the August 2018 examination was not adequate because the examiner does not have the expertise necessary to provide an opinion on such a complicated dermatological matter. This contention is moot, as the Board has determined that the August 2018 opinion is inadequate. 

Moreover, the Board finds the Skin DBQ from Dr. L.A.C. to be highly probative.  She is a Board Certified Dermatologist, she reviewed the entire case file, examined the Veteran, provided sufficient rationale to support her conclusion, and the conclusion is consistent with the medical literature of record. As such, the Board finds the opinion of Dr. L.A.C. to be the most probative evidence of record. 

The Board also concludes that even if it were to be accepted by the Board that acne conglobata is a form of acne vulgaris and was, thereby, noted on enlistment as a pre-existing condition, the record clearly demonstrates aggravation during military service. There was an increase in severity during service and there is not clear and unmistakable evidence to rebut the presumption of aggravation.      

Generally, a Veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). If a disability is noted upon entrance, the disability is considered a pre-existing disability. If the disability is not noted upon entering service, then the presumption of soundness applies, 38 U.S.C. § 1111. The burden is on the VA to show by clear and unmistakable evidence that not only did the disability pre-exist service but that it was not aggravated by service to rebut the presumption. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

Given that there is clearly a disagreement in medical literature as to whether acne vulgaris and acne conglobata are distinct conditions, it cannot be said that there is clear and unmistakable evidence that the Veteran had pre-existing acne conglobata. Thus, the presumption of soundness applies and the diagnosis of acne conglobata was first made during military service with ongoing treatment thereafter. 

Nonetheless, the Board wishes to address the Veteran's contention that his acne worsened and there was an aggravation of his acne due to military service. As discussed above, the Veteran's
 App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

Given that there is clearly a disagreement in medical literature as to whether acne vulgaris and acne conglobata are distinct conditions, it cannot be said that there is clear and unmistakable evidence that the Veteran had pre-existing acne conglobata. Thus, the presumption of soundness applies and the diagnosis of acne conglobata was first made during military service with ongoing treatment thereafter. 

Nonetheless, the Board wishes to address the Veteran's contention that his acne worsened and there was an aggravation of his acne due to military service. As discussed above, the Veteran's acne that was documented upon entrance clearly increased in severity during his active-duty service. As such, the presumption of aggravation applies. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). To rebut the presumption of aggravation clear and unmistakable evidence (obvious or manifest or undebatable) that the increase in severity of the pre-existing condition was not due to service but was instead due to the natural progression of the disease is required. 

In this case, it is not undebatable that the Veteran's increase in severity was not due to service. Dr. L.A.C. opines that the acne was aggravated by military service and supported this opinion by pointing to the extensive treatment that was required for the condition during military service. Additionally, the August 2018 examiner notes that acne vulgaris typically resolves. Thus, acne conglobata is not the common progression of typical acne vulgaris, but is in fact, very rare. The August 2018 examiner also stated that acne is an immune response that is influenced by genetics and likely diet. As such, the Veteran's immune response to environmental exposures he had during military service, including diet, very well could have triggered the increased severity of his acne causing the acne conglobata. 

Therefore, because there was an increase in the severity of the Veteran's acne condition during military and there is not clear and unmistakable evidence that the increase in severity of the acne condition was not due to service but was instead due to the natural progression of the disease, the evidence demonstrates that the acne condition was aggravated by military service.

Based on the foregoing, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether acne conglobata is related to service. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, having resolved doubt in favor of the Veteran, service connection for acne conglobata is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

3. Motion to advance case on the Board's docket denied.

In a May 2022 statement, the Veteran asked that his appeal be expedited due to longevity of the appeal and due to illness. First, the Board notes that the Veteran does not meet the age requirement for advancement on the docket. In terms of his other contentions, the Board finds that the motion must be denied. The Veteran contends that he was seriously ill from contracting Covid-19; however, no documentation has been submitted with this contention nor is there indication that he continues to suffer from this illness. With regard to the contention that this claim has been pending far too long, the Board is very sympathetic to that fact, at the same time noting that the claim was received and adjudicated in docket order. As the specific grounds enumerated under 38 C.F.R. § 20.902 have not been shown, the motion to advance on the docket must be denied.

REASONS FOR REMAND

Entitlement to service connection for a chronic ear disability, to include as secondary to service-connected hearing loss, is remanded

The Veteran has stated that he has pain in ears and associates the pain in his ears with his hearing loss. The Veteran was denied service connection on the basis that he does not have a diagnosis of a chronic ear disability. However, a disability for purposes of establishing service connection is an injury or disease that results in functional impairment, and "the disability itself need not be diagnosed." See Saunders v. Wilkie, 886 F.3d 1356, 1362 (2018). When a Veteran is asserting subjective pain, disability may be established where the pain amounts to a functional impairment. Id. Thus, although the Veteran does not have a specific diagnosis, his assertion of ear pain must be considered. 

The VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran's service and there is a lack of sufficient evidence to decide the claim. See McLendon v. Nicholson, 
 disability. However, a disability for purposes of establishing service connection is an injury or disease that results in functional impairment, and "the disability itself need not be diagnosed." See Saunders v. Wilkie, 886 F.3d 1356, 1362 (2018). When a Veteran is asserting subjective pain, disability may be established where the pain amounts to a functional impairment. Id. Thus, although the Veteran does not have a specific diagnosis, his assertion of ear pain must be considered. 

The VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran's service and there is a lack of sufficient evidence to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the Veteran has complained of ear pain, the record demonstrates that the Veteran was exposed to loud noise in service, he had hearing loss at separation, and he is service connected for hearing loss. As such, he has a potential disability that could be related directly to noise exposure in service or to his service-connected condition. As such, he must be provided a VA hearing examination to consider whether he has a formal diagnosis, his chronic ear pain amounts to functional impairment, and whether the chronic ear disability is directly related to his military service, or was caused or aggravated by, his service-connected hearing loss. 

Accordingly, remand is warranted for further development. 

The matters are REMANDED for the following action:

1. The Veteran should be scheduled for an examination with an appropriate examiner for the purpose of obtaining a diagnosis associated with the Veteran's chronic ear disability and an opinion regarding the nature and etiology of his chronic ear disability. 

2. The examiner should obtain a complete, pertinent, history from the Veteran and review the claims file in conjunction with the examination, including this remand, giving particular attention to the Veteran's VA treatment records, lay assertions, and the pertinent medical evidence. 

The examiner is asked to provide the following:

a.)	Based on the examination and review of the record, the examiner is asked to provide an opinion as to the diagnoses related to the Veteran's chronic ear disability. 

b.)	If no diagnosis can be provided, other than pain, opine whether the Veteran's reports of chronic ear pain amount to functional impairment of earning capacity.

c.)	Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's chronic ear disability is related to military service.

d.)	Based on the examination and review of the record, the examiner is also asked to provide an opinion whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's chronic ear disability (1) was caused by his service-connected hearing loss; or (2) was aggravated by his service-connected hearing loss.

The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. 

The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions.

The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).   

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Temple, 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.