Citation Nr: 1301533	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  09-36 877	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB).

2. Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel





INTRODUCTION

The Veteran served on active duty from October 1974 to November 1978.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued in June 2007 and February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. PFB is manifested by less than 5 percent of the entire body and no more than topical therapy during the appeal period. 

2. A bilateral hearing loss disability did not manifest in service, within the one year presumptive period, or for many years thereafter, and current bilateral hearing loss disability is unrelated to service.


CONCLUSION OF LAW

1. The criteria for an initial compensable evaluation for PFB are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2012).

2. Bilateral hearing loss disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties 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 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. 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.

Additionally, 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 2002) 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 RO provided the Veteran with the notice required under the VCAA in a pre-rating letter dated in January 2007.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

In this case, VA obtained the Veteran's service treatment records (STRs), and all of the identified post-service treatment records. In addition, the Veteran was provided with two VA examinations in February 2007.  The RO obtained an addendum opinion for the February 2007 audio VA examination in December 2007.  As the medical opinions included a review of the pertinent medical history, clinical findings, and diagnoses, and were supported by medical rationale, the Board finds that the February 2007 VA examinations and December 2007 addendum, along with the post-service VA treatment records, are adequate to make a determination on the claims.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims for compensation under 38 U.C.S.A. § 1151 are thus ready to be considered on the merits.

Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.  We conclude that the disability has not significantly changed and a uniform rating is warranted.

The Veteran's PFB is currently evaluated under 38 U.S.C.A. § 4.118, Diagnostic Code 7806 (2012), pertaining to dermatitis or eczema. 

Under Diagnostic Code 7806, a 10 percent evaluation is assigned where the disability affects 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 were required for a total duration of less than six weeks during the past 12-month period. Id.

A 30 percent evaluation is appropriate where the disability affects 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 were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id.

A 60 percent evaluation is appropriate where the disability affects 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 were required during the past 12-month period. Id.

Service treatment records reveal that the Veteran was treated for PFB related to shaving the face.  The Veteran was placed on multiple temporary shaving profiles.  A July 1978 follow-up note indicates the Veteran had "relative control maintained" using clippers to shave every three days.

In an August 2005 VA dermatology note, the Veteran complained of a history of PFB.  Physical examination found multiple papules and pustules over the central chest.  The diagnosis was folliculitis and acne. 

In a February 2007 VA skin diseases examination, the Veteran reported the history of the onset of tender bumps in the beard area during service with improvement when not shaving.  He denied use of topical or systemic medication for treatment.  The report noted a pruritic skin condition.  Upon physical examination over the beard area, the examining physician noted there were a few scattered red papules which were mild and comprised approximately one percent of the body surface areas.  The examining physician reported that this was a mild case of a benign condition.  He indicated that although PFB was due to close shaving in the military that it would have occurred with shaving for any reason.

In a September 2009 Form 9, the Veteran stated PFB was on his chest.

In a June 2010 VA dermatology note, the examiner reported the Veteran had a history of folliculitis which improved with medication in the past.  The Veteran complained of breakouts on the chest, upper back and neck and beard area.  There were a few skin-colored and hyperpigmented follicular-based papules on the chest and upper back, open comedones on the nose, and skin-colored papules in the beard area on the face. Over the counter benzoyl peroxide was recommended.  The Veteran was told to continue with Clindamycin and was prescribed Retin-A.

In an April 2011 VA dermatology note, the Veteran reported that PFB had improved since he uses clippers instead of shaving.  The examiner noted a few skin-colored and hyperpigmented follicular-based papules on the scalp and beard area.  The examiner also stated that hyperpigmented scaly patches on the chest were possible tine versicolor.

In a November 2011 VA dermatology note, the Veteran continued to report the PFB had improved since he stopped shaving. 

Based on the lay and medical evidence presented, the Board finds against a higher evaluated for PFB.  There is no showing of a skin disability at least 5 percent, but less than 20 percent of the entire body covered; or at least 5 percent, but less than 20 percent of areas are 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.  At most, the evidence shows some follicular lesions on his face comprising less than 5 percent total body area and less than 5 percent total exposed area, and use of over the counter treatment.  The above findings do not warrant a compensable rating.

The Veteran has reported having PFB on his face and chest.  The Board acknowledges his reports of itching and tenderness.  The Veteran is competent to report such symptoms and the Board finds his reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the symptoms required for a higher evaluation.  The more probative evidence consists of that prepared by skilled VA examiners.  Although there are documented findings of PFB on the Veteran's face, the April 2011 VA examiner did not diagnose the Veteran with PFB on the chest.  The condition of the chest has not been attributed to PFB and is not considered rating the service connected condition.

While the evidence is clear that the Veteran has a history of PFB, and documented VA treatment for mild PFB as late as November 2011, there is no evidence of any manifestation of PFB to warrant a compensable rating.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the medical evidence does not support a compensable evaluation, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).

Extraschedular Considerations

The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service- connected PFB.  The governing norm in such exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). 

In the present case the evidence shows that manifestations of PFB are contemplated by the rating schedule.  On examination, the VA examiner found PFB to be approximately one percent of the Veteran's body surface area.  The evidence does not show frequent periods of hospitalization or marked interference in employment beyond what would be contemplated in the assigned ratings.  Accordingly, the Board finds that this case does not warrant referral for extraschedular consideration. 38 C.F.R. § 3.321(b).

Service Connection 

As an initial matter, the Board notes that the Veteran did not claim that his hearing loss is the result of combat nor does the evidence indicate that he served in combat. Thus, he is not entitled to application of the provisions of 38 U.S.C.A. § 1154(b) (West 2002).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a) , 3.309(a). See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system).

The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).

Analysis

In this case, the Veteran asserts that he has bilateral hearing loss as a result of noise exposure during service from working near the flight line.  The Veteran's DD Form 214 reflects that his primary specialty was vehicle operator and dispatcher.  This is consistent with the Veteran's reports that he worked near the flight line.  Resolving the benefit of the doubt in the Veteran's favor, the Board finds that to the extent the Veteran's duties involved working near the flight line, it is "highly probable that he was exposed to hazardous noise during service. See VBA Fast Letter 10-35 (Sept. 2, 2010).  However, the Veteran's service connection claim must be denied in this case because the preponderance of the evidence shows a lack of hearing loss during service, a lack of continuity of symptomatology and a lack of nexus between his current disabilities and in-service noise exposure.

At the time of the Veteran's August 1974 enlistment examination, pure tone thresholds, in decibels, were noted as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
n/a
5
LEFT
20
10
10
n/a
5

On physical examination, the Veteran's ears were normal and on the corresponding Report of Medical history, he denied ear, nose, and throat trouble. 

On a December 1974 hearing conservation data form, pure tone thresholds, in decibels, were as follows:




HERTZ



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

The examiner noted that ear plugs were issued.


On a December 1976 hearing conservation testing data form, pure tone thresholds, in decibels, were as follows:




HERTZ



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

The primary noise exposure was indicated as "shops," with duties described as motors and alternating current engine.  The estimate of hearing was fair. The examiner noted the Veteran wore ear protection in the form of plugs or muffs.  

The Veteran's service treatment records do not show any treatment or complaints for hearing loss.

A separation examination report is not of record.  According to a November 1978 service personnel record, the Veteran waived his right to a separation physical. 

In a September 2006 VA treatment, the Veteran reported bilateral hearing loss for the past 20 years.

On the February 2007 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
30
35
40
LEFT
30
30
35
35
40

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  The diagnosis was normal hearing at 250 hertz with mild sloping to moderate sensorineural hearing loss above 250 hertz.  The Veteran reported that following discharge he worked for ArmCo Steel where he wore ear protection for four years until he worked in warehousing.

In an December 2007 addendum to the February 2007 VA examination, the examiner reviewed the Veteran's claims folder and noted enlistment testing showed normal hearing bilaterally and December 1976 hearing conservation testing showed normal hearing bilaterally.  The examiner noted that there was no separation physical.  The examiner indicated that after two years of working near the flight line, testing showed the Veteran had normal hearing with no significant threshold shift.  The examiner noted that the Veteran had to wear hearing protection following service.  The examiner opined that the Veteran's current hearing loss is not related to noise exposure during military service.  The examiner reasoned that the current hearing loss demonstrates a flat configuration without the high frequency tilt typically seen in noise induced hearing loss.

The Board notes that the results of the February 2007 VA examination indicated that the Veteran's hearing loss meets the VA's definition of a disability under 38 C.F.R. § 3.385.  The remaining question is whether his current bilateral hearing loss was incurred in or is otherwise related to service, to include noise exposure.

While an absence of a hearing loss disability is not in and of itself fatal to a claim for entitlement to service connection for bilateral hearing loss disability, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley, 5 Vet. App. at 159, here the December 2007 VA examiner did not base the conclusion solely on the fact that the Veteran did not have a hearing loss disability in service.  Rather, the examiner reviewed the claims file and noted the Veteran's current hearing loss does not demonstrate the high frequency tilt typically seen in noise-induced hearing loss. 

In this case, the Board finds the December 2007 VA examiner's opinion that the Veteran's hearing loss is not related to service is highly probative as it was based on a detailed review of the Veteran's medical history, clinical findings, and supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The Board is fully aware that the Veteran is competent to report that he noticed decreased hearing acuity and when that decrease was first noticed.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  However, the Board places greater probative weight on the conclusion of the December 2007 examiner that the Veteran's hearing loss is not related to service.

The Board also finds that the evidence reflects a lack of onset of bilateral hearing loss disability in service, within the one year presumptive period, or for many years thereafter.  Although the record does not contain hearing testing performed at the Veteran's separation from service, the December 2007 VA examiner noted that after two years of working near the flight line, that the Veteran had normal hearing with no significant threshold shift.  Consequently, the Board concludes that the Veteran's statements indicating a continuity of symptomatology are less probative and less credible than the other evidence of record. 

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability.  The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

ORDER

An initial compensable evaluation for pseudofolliculitis barbae (PFB) is denied.

Service connection for bilateral hearing loss disability is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs