Citation Nr: 1215148	
Decision Date: 04/26/12    Archive Date: 05/07/12

DOCKET NO.  08-13 818	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for hearing loss.  

2.  Entitlement to service connection for tinnitus.  

3.  Entitlement to service connection for chloracne.  

4.  Entitlement to service connection for a left shoulder disability.  

5.  Entitlement to an initial compensable disability evaluation for tinea corporis, tinea pedis, and onychomycosis.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESSES AT HEARING ON APPEAL

Appellant and his spouse.  


ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to January 1970.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and July 2007 decisions rendered by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA).  

In July 2010 and August 2011, the Veteran raised several new claims that have yet to be adjudicated by the RO.  For instance, in July 2010, he claimed entitlement to service connection for several conditions that were secondary to prostate cancer.  He also sought a higher rating for PTSD and for an increased rating for residuals of a shell fragment wound to the right upper arm.  In August 2011, he claimed entitlement to a permanent and total rating for PTSD.  He also claimed service connection for traumatic brain injury and right shoulder arthritis.  (Arthritis of the left shoulder is part and parcel of the left shoulder issue on appeal and which is being remanded herein.)  These issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

In February 2012, the Veteran and his spouse testified at a hearing at the RO before the undersigned.  A transcript of the proceeding is of record.  
The issue of entitlement to service connection for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Affording the Veteran the benefit of the doubt, a bilateral hearing loss disability was incurred during active service.  

2.  Affording the Veteran the benefit of the doubt, tinnitus was incurred during active service.  

3.  During the hearing before the undersigned in February 2012, the appellant withdrew his appeal as to the claim of entitlement to service connection for chloracne.  

4.  Throughout the entire appeal period, the Veteran's skin condition, manifested by tinea corporis, tinea pedis, and onychomycosis has involved less than 5 percent of his skin or exposed surfaces and requires only topical treatment.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011).

3.  The criteria for withdrawal of an appeal of the claim of entitlement to service connection for chloracne by the appellant (or his or her authorized representative) have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).

4.  The criteria for an initial compensable evaluation for tinea corporis, tinea pedis, and onychomycosis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7813-7816 (2011).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (the VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 

In the decision herein the Board is granting entitlement to service connection for hearing loss and tinnitus, hence, no further discussion of VA's duties to notify or assist is required.  As to the claim for an increased rating for tinea corporis, tinea pedis, and onychomycosis, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements).  

The Board also concludes VA's duty to assist has been satisfied.  Available service treatment records are in the file.  The Veteran has identified relevant VA and private outpatient treatment records and the RO has obtained the records.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  In addition, the Veteran provided testimony during a hearing before the undersigned in February 2012.  During the hearing, the undersigned fully explained the issues, described the bases of the RO's denial of the claims, and suggested the submission of evidence that could help to substantiate the claims.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010)(describing the duties of the hearing officer).  

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011).  The Veteran was provided VA skin examinations in May 2006 and January 2009.  

Concerning these VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The reports of the examinations reflect that the examiners reviewed the Veteran's complete claims file, to include his service treatment records and past medical history.  They recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board therefore concludes that the examinations are adequate.  As such, the Board finds that VA has fulfilled its duty to notify and assist under the VCAA.

II.  Hearing Loss Claim- Background and Analysis 

Here, the Veteran alleges that a bilateral hearing loss disability is the result of exposure to acoustic trauma during active military service.  Specifically, he reports that while serving in combat, he was exposed to noise from grenade explosions, mine explosions, and small arms fire.  He indicates that he has had problems with hearing loss and tinnitus ever since such noise exposure.  (See Transcript at 4-5, 10.)   

Here, the Veteran's service entrance examination did not reveal evidence of a hearing loss or tinnitus disability.  An audiogram conducted in January 1967 revealed puretone thresholds as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
-10
0
5
LEFT
0
0
0
-5
5

His service discharge examination in November 1969 revealed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
-
15
LEFT
15
15
15
-
15

The Veteran submitted approximately 24 year's worth of private audiograms that were conducted by his employer.  The earliest record, dated in October 1971 revealed puretone thresholds as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
5
10
15
LEFT
30
15
15
15
25

An audiological evaluation in August 1974 noted the Veteran exposure to acoustic trauma while in the military and indicated that he suffered from hearing impairment while in the military.  The report further indicated that while the Veteran worked in a noisy environment, he wore hearing protection.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
10
40
35
LEFT
10
15
25
35
30

A private audiogram in August 1983 indicated that the Veteran had been away from noise exposure for 14 years.  It also noted the Veteran's history of exposure to acoustic trauma while serving in the military.  Testing conducted in January 1989 revealed a hearing loss disability as defined by VA.  At such time, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
05
00
00
30
45
LEFT
00
00
10
25
40

A private audiogram in July 1994 noted the Veteran's reports of tinnitus.  

The Veteran underwent a VA audio examination in May 2007.  At such time, the examiner indicated that he reviewed the Veteran's claims file.  Therein, the Veteran reported a history of noise exposure while in the military.  He also described civilian noise exposure without the use of hearing protection involving the use of firearms and work as a truck driver.  He described using hearing protection while working as a fireman.  He reported a 10-12 year history of tinnitus.  An audiological evaluation revealed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
40
65
70
LEFT
35
25
45
70
70

Speech audiometry revealed speech recognition ability of 94 percent bilaterally.  Based on the Veteran's self-report that tinnitus had its onset post-service, the examiner opined that it was not likely do to military noise exposure.  As to the current hearing loss, the examiner opined that it also was not likely due to military service because he was discharged with normal hearing.  The examiner also noted that once the exposure to noise was discontinued there was no significant progression of hearing loss as a result of the noise exposure.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 

For certain chronic disorders, including organic diseases of the nervous system, such as hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011); see also VA Under Secretary for Health letter dated October 4, 1995 (stating that it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385 (2011).   

Here, the Board has first considered the Veteran's and his spouse's testimony addressing the incurrence of hearing loss and tinnitus, reports of continuity of symptomatology, and their opinions as to the etiologies of the current disabilities.  

In this respect, it is significant that the Board must consider and weigh both the lay and the medical evidence.  The Court has held in this regard that:  

The Board is required to consider "all pertinent medical and lay evidence."  38 U.S.C. § 1154(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b) (2010).  When considering such lay evidence, the Board should determine, on a case-to-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent.  See Jandreau, 492 F.3d at 1376-77 (cited in Robinson v. Shinseki, 312 Fed.Appx. 336, 339 (Fed.Cir.2009) (remanding the matter for consideration of the appellant's lay evidence, which requires a "two-step analysis" that begins with an evaluation of whether the veteran's disability is the type of injury for which lay evidence is competent)).  If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006). 

Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011).  

It is also significant that in cases involving disabilities related to combat, VA must presume lay evidence that describes the in-service disease or injury is credible so long as it is "consistent with the circumstance, conditions, or hardships of such service, notwithstanding the fact that there is no official record."  38 U.S.C. § 1154(b).  

With the foregoing in mind, the Board has considered the Veteran's testimony and finds it is competent, credible, and sufficient to establish the occurrence of exposure to acoustic trauma while in combat.  In this regard, his testimony is supported by his official service department records which show service in combat while in Vietnam.  Hence, his reports of exposure to acoustic trauma from grenades, mines, and small weapons fire are consistent with the circumstances of such service.  The Board acknowledges that a hearing loss or tinnitus disability was not noted while in service.  However, in cases involving combat VA is prohibited from drawing an inference from silence in the service treatment records.  See Id. at 440.  

Similarly, the Veteran's and his spouse's reports of continuity of symptoms since service are credible and supported by the post-service employment records.  Those records document the Veteran's reports of exposure to acoustic trauma in service.  They also reveal that while he worked in a noisy environment, he did so while wearing hearing protection.  These records also support the Veteran's contentions of a gradual worsening of his hearing acuity.  

Finally, the Board has considered the Veteran's testimony as to the etiology of the current disability.  Here, the Veteran is certainly competent to describe ringing in his ears or a loss of hearing acuity.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  As such, the Board has weighed that evidence against the medical opinion evidence contained in the May 2007 VA audiologic examination report.  Here, while the May 2007 VA examination was conducted by an audiologist, the opinion rendered is afforded little probative weight.  First, while the VA examiner indicates that she reviewed the Veteran's claims folder, the report contains no reference to the approximately 24-year history of private employer audiograms.  This significant omission calls into question the adequacy of the examination.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007)(A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations.")  In addition, the examiner's rationale for her conclusion that hearing loss and tinnitus disabilities were not incurred in service because the conditions were not noted upon service discharge appears to lack consideration of the Veteran's combat service and the presumption under law that the injury was sustained in combat.  It also ignores the fact that a hearing loss disability need not be demonstrated on service discharge in order to support the claim.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993)("[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.")

Here, the May 2007 VA examination opinion has some probative value; however, when weighed against the other evidence of record, the evidence is essentially in equipoise.  In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that:

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  

The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." 

Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal.  The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call."  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).  

Because the evidence in this case is at least in equipoise with regard to the cause of the Veteran's current bilateral hearing loss and tinnitus disabilities, service connection is warranted and the claims must be granted.  

III.  Issue Withdrawn on Appeal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant stated during the hearing before the undersigned that he wished to withdraw his appeal as to the claim of entitlement to service connection for chloracne.  As such, the Board finds that the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.  

The Board takes this opportunity, however, to clarify one point.  While the Veteran is withdrawing his claim for service connection for chloracne, the RO has consistently characterized the claim as involving a "rash and fungus on his back."  That characterization is erroneous.  The Veteran is service-connected for a skin condition manifested by tinea corporis, tinea pedis and onychomycosis.  In granting service connection for that disability, the RO correctly noted that it included the fungal infection on the Veteran's back.  Consideration of the appropriate disability rating is addressed below.  

Thus, in dismissing the claim for service connection for chloracne, the Board emphasizes that it only contemplates the dismissal to include a disability manifested by chloracne and not any other service-connected skin condition.   

IV.  Evaluation of Tinea Corporis, Tinea Pedis, and Onychomycosis

Turning to the service-connected skin condition, the Veteran service treatment records document treatment for tinea pedis and a rash to the hands.  In February 2006, he filed a claim seeking service connection for a skin condition.  

He underwent an initial VA examination in May 2006 and he described an intermittent rash that spread around his arms, back, and chest.  He reported that he used Ultravate, which the examiner described as a "superpotent topical steroid" but that it was ineffective.  He had also tried topical creams and antifungals without success.  A physical examination revealed a mid left back annular red patch without much scale.  His hands were clear, but his feet had onycholysis.  There was no scarring.  The total body surface affected was "2-3" percent.  The diagnoses were tinea pedis, tinea corporis, and onychomycosis.  The examiner related the conditions to the Veteran's active military service and noted that they were treatable conditions.  

In July 2006, the RO granted service connection for the skin conditions and assigned an initial non-compensable evaluation.  

In November 2006, the Veteran submitted photos showing a red rash affecting his back and the inside of his arms.

VA outpatient treatment records show that the Veteran was prescribed anti-fungal medications, terbinafine hcl 1% and ketoconazole in 2006.  In 2007, he was only prescribed terbinafine.    

During a VA dermatology consultation in April 2007, the Veteran reported that had used Halebetasol to treat the skin condition.  The VA examiner advised him to discontinue use.  The examiner noted that he had erythmatous patches on his face, ears, chest, back, and arms, with scale.  The diagnosis was tinea corporis.  He was advised to treat the condition with terbinafine cream and follow-up in four months.  

During a follow-up examination in September 2007, the examiner noted that the rash involving the face, ears, trunk, and arms had resolved, and that there only remained faint erythematous patches on his back.  The assessment was "tinea corporis, much improved."  He was advised to continue using terbinafine cream as needed.  

On his Substantive Appeal, filed in May 2008, the Veteran reported that he continued to have rashes on his back and feet.  He stated that they "go away but come back."  He contended that a 20 percent rating for the skin condition was appropriate.  

The Veteran underwent a second VA skin examination in January 2009.  At such time, the Veteran described the rash as intermittent and affecting the arms, back, and chest.  On physical examination, his back and hands were clear.  His feet had onycholysis, yellowed nail plates and some scaling around his foot.  The total body surface involved was 2-3 percent.  

VA treatment records in 2009 show prescriptions for clotrimazole 1% cream, terbinafine cream, and urea 40% cream.  

During the hearing before the undersigned, the Veteran reported that the condition "aint bad as it was over there but it still itches and burns."  (See Transcript at 16.)  

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Further, the Board must evaluate the medical evidence of record since the filing of the claim and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's skin condition has been rated under Diagnostic Code 7813-7816.  Diagnostic Code 7813 pertains to dermatophytosis, which is in turn rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, scars, under Diagnostic Code 7801-7805, or dermatitis, under Diagnostic Code 7806, depending upon the predominant disability.  

Diagnostic Code 7816 provides that psoriasis affecting less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period, is rated noncompensably (0 percent) disabling.  Psoriasis affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling.  Diagnostic Code 7806, used for rating dermatitis or eczema contains an identical provision.  

Psoriasis affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling.  Psoriasis affecting more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling.  38 C.F.R. § 4.118. 

Under Diagnostic Code 7816, psoriasis also may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806) depending on the predominant disability. 

The Board observes that the rating criteria for rating disfigurement and scars were revised effective October 23, 2008.  However, the Board notes that the revisions are applicable only to applications for benefits received by VA on or after October 23, 2008.  See 73 Fed. Reg. 54708 (September 23, 2008).  In this case, the Veteran's appeal in arises from a disagreement with the initial noncompensable evaluation assigned in a July 2006 rating decision.  Moreover, there is no evidence of disfigurement or scars.  Thus, the revised rating criteria do not apply to this case.  

Upon review of the evidence, the Board finds that since the effective date for the grant of service connection, a compensable disability evaluation is not warranted for the service-connected skin condition.  In this respect, while the disability is shown to predominantly affect the back, arms, and feet, and result in tinea corporis, tinea pedis, and onychomycosis, even during an active phase of the condition, it is not shown to encompass a large enough area to warrant a compensable evaluation under Diagnostic Code 7806 or 7813.  In this respect, VA examiners have routinely described the skin condition as encompassing less than 5 percent of the body. 

Moreover, the skin condition is not shown to result in any disfigurement of the head, face, or neck, or cause any scarring.  Rather, the skin condition is shown to respond to topical creams.  In this respect, there is reference in the VA records to private treatment of the skin condition with a corticosteroid.  The Veteran has not provided private treatment records, however, documenting treatment with corticosteroids.  In addition, even assuming he did use a corticosteroid at some point, the Board finds it significant that the VA medical providers told him to discontinue using it and instead recommending a topical cream.  Finally, it is important to recognize that the topical cream was effective as the most current evidence shows that the condition improved.  

The Board recognizes the Veteran's contentions that a 20 percent rating is warranted; however, other than wanting a higher disability rating, he does not describe any symptoms that correspond to the 20 percent rating criteria.  In addition, to the extent that he offers descriptions of the current skin disability during the hearing before the undersigned, he does not describe symptoms that correspond to a 10 percent rating or higher.  

Given such, the Board finds that an initial compensable disability rating is not warranted.  

Finally, the Board has also considered whether the Veteran's service-connected skin disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2011); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology with respect to his service connected disabilities and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.  



	(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to service connection for bilateral hearing loss is granted.  

Entitlement to service connection for tinnitus is granted.  

The appeal of the claim of entitlement to service connection for chloracne is dismissed.  

An initial compensable disability evaluation for tinea corporis, tinea pedis, and onychomycosis is denied.  


REMAND

The Board finds that additional development is warranted with respect to the issues of entitlement to service connection for a left shoulder disability.  

The Veteran has never been afforded a VA examination in connection with the claim.  In McLendon v. Nicholson, the Court held that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) , 38 C.F.R. § 3.159(c)(4)(i).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McLendon v. Nicholson, 20 Vet. App. 79, at 83 (2006). 

Here, there is evidence of a current left shoulder disability.  For instance, VA outpatient treatment records note several reports of left shoulder pain and include MRI findings of cystic degenerative changes of the greater tuberosity.  

During the hearing before the undersigned, the Veteran reported that he had left shoulder pain while serving in combat as a result of carrying his machine gun.  He also described several falls while carrying his machine gun.  (See Transcript at 11.)  As discussed above, even though a left shoulder disorder was not noted in his service treatment records, this evidence is sufficient to establish an injury during service.  38 U.S.C.A. § 1154(b).  

VA outpatient treatment records show continuity of left shoulder symptoms since 1997.  There is insufficient competent medical evidence, however, addressing the etiology of the current left shoulder disability.  As such, this matter must be remanded to afford the Veteran a VA examination.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination for the purposes of determining the nature, severity and etiology of any current left shoulder disability.  

The claims folder must be provided to the examiner in conjunction with the examination and the examiner must note that the complete claims folder has been reviewed.  The examiner should perform any diagnostic tests deemed necessary.  The examiner should elicit from the Veteran a complete history of his complaints of a left shoulder disability, including any medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered.  

The examiner is directed to respond to the following questions:  

a)  What is the diagnosis for any left shoulder disability? 

b)  Assuming the Veteran injured his left shoulder in combat as alleged, what is the likelihood (i.e. "very likely," "as likely as not," "not likely") that any current left shoulder disability diagnosed was incurred during service?  Why do you think so?  

2.  Thereafter, the RO/AMC must review the claims folder to ensure that the foregoing requested development has been completed.  If any benefit sought on appeal is not granted, the Veteran should be provided with a Supplemental Statement of the Case ("SSOC") and afforded the opportunity to respond thereto.  The matters should then be returned to the Board, if in order, for further appellate process.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).


______________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs