Citation Nr: 1548665	
Decision Date: 11/18/15    Archive Date: 11/25/15

DOCKET NO.  09-27 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to a compensable rating for left ear hearing loss.

2.  Entitlement to a rating higher than 10 percent for pseudofolliculitis barbae (PFB).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1983 to May 1985. 

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  This matter was previously before the Board in August 2014, when it was remanded for additional development.  

The Veteran appeared at a Travel Board hearing in May 2014 before the undersigned.  A transcript of the hearing testimony has been associated with the record.  


FINDINGS OF FACT

1.  The left ear hearing loss does not result in hearing impairment more severe than level II.  

2.  The PFB does not affect 20 to 40 percent of the entire body or of exposed areas and does not require systemic therapy for a total duration of 6 weeks or more but not constantly in the prior 12 month period. 


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C.A. § 1155  (West 2014); 38 C.F.R. § 38 C .F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015).

2.  The criteria for a rating higher than 10 percent for PFB have not been met. 38 U.S.C.A. § 1155  (West 2014); 38 C.F.R. § 38 C .F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in letters mailed in May 2007 and July 2010, prior to the initial adjudication of the claims.

The record also reflects that all available service records, VA treatment records, and post-service medical evidence identified by the Veteran have been obtained.  Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate any of the claims decided herein.  The Veteran was provided examinations to determine the nature and severity of the left ear hearing loss and PFB, most recently in 2014.  The Veteran has not alleged that either condition has increased significantly in severity since the examination or that the examination was otherwise inadequate, and the Board notes that each examination reports all necessary findings, including the functional impact of the hearing loss in accordance with Martinak v. Nicholson, 21 Vet. App. 447 (2007).
Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remands.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  In this regard, the Board notes that a September 2014 letter asked the Veteran to submit any outstanding private treatment records or an authorization and consent to release so VA could obtain any outstanding private treatment records, that the Veteran underwent adequate examination for each claim on appeal, and that an opinion was obtained as to the percentage of exposed skin affected by the PFB, including area of darkened skin.

 Accordingly, the Board will address the merits of the appellant's claims.

II. Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). 

 A.  Hearing Loss

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability from service-connected hearing loss, the Rating Schedule establishes eleven hearing acuity levels, ranging from numeric level I for essentially normal acuity to numeric level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.86.  In instances where, because of language difficulties, the Chief of the Audiology Clinic certifies that the use of both pure tone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on pure tone averages.  38 C.F.R. § 4.85(h) (2015).  Application of these tables is mechanical; there is no discretion.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

If impaired hearing is service-connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the non-service-connected ear qualifies as a disability under 38 C.F.R. § 3.385.  38 C.F.R. § 3.383.  Otherwise, such as in the case at hand, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f).

A June 2007 VA audiological record indicates that audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
15
65
65

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  The VA audiometric findings reflect level I hearing acuity in the left ear.  This designation in combination with the level I hearing acuity in the right ear corresponds to a noncompensable rating.

A July 2008 private audiological record reveals pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
10
65
60

Speech audiometry revealed speech recognition ability of 84 percent with "CD" testing and 88 percent with "MLV" testing in the left ear.  It is unclear whether the private speech recognition testing was conducted using the Maryland CNC word list, as required by VA.  Even assuming the private audiologist used the Maryland CNC list, however, the worst level possible for hearing acuity is level II.  This designation in combination with the level I hearing acuity in the right ear corresponds to a noncompensable rating.  

A November 2014 VA examination record reveals the Veteran's history that he is unable to hear general conversation at times.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
20
60
70

Speech discrimination testing was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate.  The audiometric findings reflect level II hearing acuity in the left ear under Table VIa.  This designation in combination with the level I hearing acuity in the right ear corresponds to a noncompensable rating.

The schedular criteria for a compensable rating have not been met at any time.  The examination results show that the Veteran does not have sufficient hearing impairment in the left ear to warrant a compensable rating.  In reaching this determination, the Board has considered the statements from the Veteran regarding his hearing loss disability.  However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the Veteran's statements. 

In reaching the foregoing decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. 

B.  PFB 

The PFB is rated by analogy to Diagnostic Code 7806, which rates dermatitis.  Diagnostic Code 7806 assigns disability ratings of 10 percent where the skin condition affects at least 5 percent but less than 20 percent of the entire body or of exposed areas of the body, or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the prior 12 month period; and 30 percent where 20 to 40 percent of the entire body or of exposed areas of the body are affect, or where systemic therapy is required for a total duration of 6 weeks or more but not constantly in the prior 12 month period. 38 C.F.R. § 4.118, DC 7806. 

A June 2009 private treatment record indicates that the Veteran had PFB for which he used a benzoyl peroxide wash and clindamycin solution.  There was no current breakout, and the Veteran reported that the PFB improved when he grew a beard.  Examination revealed some hyperpigmented macules in the beard area.  There were no keloidal papules or pustules, but there were some icepick scars on the right cheek.  Subsequent records reveal treatment for keratoderma and inflammatory acne.  The records suggest the papules and scarring are related to the acne and indicate that the Kenalog injecitons were provided for the acne.  

An August 2010 VA examination record reveals the Veteran's history of PFB on the beard area of the skin.  He reported small bumps from shaving every day that were painful and itchy and sometimes became infected.  He reported use of topical ointment, which the examiner noted was not a corticosteroid or immunosuppressive.  Examination revealed acne with mostly post-inflammatory hyperpigmentation and PFB.  The examiner found greater than five percent but less than 20 percent of exposed areas or the total body were affected.  The examiner noted that there were prickly heat like, tiny papular skin eruptions over the beard area with an approximately one-inch area over the right cheek that was darkened with three to four vesi versus blisters that were "little bigger than pin-head size and minimally tender to touch."

An October 2011 VA examination record indicates that the Veteran had an approximately one-inch darkened area of the right cheek.  There was no visible scarring or disfigurement, and the area was not painful, unstable, elevated, depressed, or adherent and did not affect functioning.  

A May 2012 private medical statement reports that the Veteran had mild disease activity of his PFB.  The record notes that the Veteran was treated with benzoyl peroxide cleanser and clindamycin solution daily and interlesional Kenalog to decrease inflammation and that the condition had improved with not shaving.  The record notes that the Veteran had a hyperpigmented patch on the right cheek with a few papules and some depressed scars.  

A November 2014 VA examination record reveals the Veteran's history of tiny ingrown hairs that were painful and skin irritation.  He reported the he sometimes had pimples and pus for which he takes doxycycline.  He reported use of benzoyl peroxide for the facial skin and injections to the face twice, most recently four months earlier, for inflammation.  The examiner diagnosed PFB.  The examiner noted that there was no scarring or disfigurement of the head, face, or neck.  There was use of oral medication for six weeks or more in the past 12 months for acne.  There was also constant/near-constant use of benzoyl peroxide and clindamycin gel for acne/PFB.  Examination revealed that 10 percent of exposed areas and 1 percent of total body areas was affected.  The examiner noted some skin hyperpigmentation over the beard area that was approximately 1.5 square centimeters.  There was also post-inflammatory hyperpigmentation in the lower beard area.  The examiner noted review of the photographs taken in October 2011 and estimated that the PFB, including the darkened area, affected 10 percent of exposed area and 1 percent of total body area.  

Upon consideration of the evidence, the Board finds a rating higher than 10 percent is not warranted under Diagnostic Code 7806.  The medical evidence does not suggest the involvement of at least 20 to 40 percent of the entire body or of exposed areas of the body.  Furthermore, the evidence does not show that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for treatment of the PFB for a total duration of at least six weeks in a 12-month period.  The medical evidence indicates that the PFB has only required the use of topical cream/ointment for six weeks or longer.  In this regard, the medical evidence indicates that the Doxycline was prescribed for the Veteran's acne - not the PFB - and that the Kenalog has not been used for a total duration of six weeks or longer.  

The Board has considered whether higher ratings are available under DC 7800 for a disfigurement of the head, face, or neck, or under Diagnostic Codes 7801-7805 for scars.  The Board finds that at no time during the pendency of this appeal has the Veteran's skin disability been shown to result in any disfigurement or scarring that is measureable according to DC 7800.  Specifically, the Veteran's skin disorder is not painful or unstable and has not caused at least one characteristic of disfigurement of the head, face, or neck to warrant a higher rating of 20 percent or more under DC 7800 or 7804.  See 38 C.F.R. § 4.118.  The Veteran's skin symptoms are clearly accounted for in the 10 percent rating pursuant to DC 7806. 

Based on the foregoing, the Board concludes that the Veteran's skin disorder has been no more than 10 percent disabling for the period on appeal.  In reaching the decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 


C.  Other Considerations

In reaching the above determinations, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his PFB and left ear hearing loss.  Nevertheless, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. 

The Board has also considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left ear hearing loss and PFB are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.

There is also no evidence to suggest that the Veteran has been rendered unemployable by these conditions.  Therefore, entitlement to a total disability evaluation is not for consideration in this case.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  



ORDER

Entitlement to a compensable rating for left ear hearing loss is denied.

Entitlement to a rating higher than 10 percent for PFB is denied.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs