Citation Nr: 1308595 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-03 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a skin disorder (claimed as jungle rot of the feet). 2. Entitlement to service connection for scars of the back, head, and knees. 3. What evaluation is warranted for bilateral hearing loss from June 5, 2007? ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. He served in combat in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. FINDINGS OF FACT 1. A chronic skin disorder was not demonstrated in-service, and the preponderance of the evidence is against finding that any current skin disorder has a nexus or relationship to the Veteran's service. 2. Resolving reasonable doubt in the appellant's favor, scars of the forehead, right knee, and left knee were incurred in service. 3. A scar of the back is not shown by the record. 4. From June 5, 2007, audiometric testing revealed no greater than a level III right ear hearing loss, and no greater than a level II left ear hearing loss. CONCLUSIONS OF LAW 1. A chronic skin disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Scars of the forehead, right knee, and left knee were incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. A scar of the back was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. From June 5, 2007, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Regarding the Veteran's claims of service connection, the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in September 2007 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Regarding bilateral hearing loss, because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the issues on appeal. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran was awarded the Combat Infantryman's Badge, which signifies that he engaged in combat with the enemy. Therefore, he must be afforded the presumptions of 38 U.S.C.A. § 1154(b) (West 2002). Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat veterans, [VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. In Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit articulated a three-step sequential analysis to be reviewed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b). Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence the Board acknowledges that the appellant is a combat veteran. In determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. § 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). The second step under Collette requires VA to determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the veteran's evidence with contrary evidence. Collette, 82 F.3d at 392- 93. If these two inquiries are met, VA "shall accept" the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. At this point, a factual presumption arises that the alleged injury or disease is service-connected. Id. It is under the third Collette step under that VA is to weigh evidence contrary to that which established the presumption of service connection. If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is rebutted. 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). Skin Condition In June 2007, the Veteran filed an original claim of entitlement to service connection for jungle rot of the feet. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a skin condition. At his June 1969 separation examination, the Veteran skin was normal and he denied having skin diseases or foot trouble. At a November 2007 VA dermatology consultation, the Veteran complained of an itchy rash of the buttocks and groin that started between his toes in Vietnam. Examination of the skin from the waist up revealed post-inflammatory hyperpigmentation of the buttocks, groin, and scrotum, with an annular rash of the buttocks and groin. The assessment was tinea cruris. At an October 2012 VA skin examination, the Veteran reported that he developed a rash with itching over his groin area while he was Vietnam in August 1969. He said he was prescribed ointment and had good results. He reported a continuation of this same skin condition, which was aggravated by cold weather. Following examination the Veteran was diagnosed with tinea cruris. On review of the claims file, the examiner noted that the Veteran had pain in his groin and was treated for a urological condition during service. The examiner opined that "the [V]eteran's reported condition of 'jungle rot' was not the same condition he reported while in the military." The Board has considered the Veteran's statements and notes that he is competent to state what he has personally experienced or observed, including that he developed a rash during service and that he currently has a rash. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board points out, however, that his statements as to where the rash developed during service have been inconsistent. He originally claimed that the rash developed on his feet, but later reported to the October 2012 VA examiner that the rash developed in his groin area. Because of this inconsistency, the Board finds that the Veteran's lay statements are not sufficient evidence of in-service incurrence under 38 U.S.C.A. § 1154(b) and does not meet the first prong of the three-part test enunciated in Collette. Even assuming the Veteran may have had a rash on his feet or groin, he stated that the rash was treated and at his discharge examination, his skin was normal and he denied having any skin diseases or foot trouble. Hence, a chronic skin disorder was not shown in service. To the extent the Veteran had a rash on his feet or groin while on active duty by August 1969 there was no clinical evidence of any chronic residual disability. Indeed, no skin disorder was presented for years postservice. The remaining question is whether his current skin disorder, diagnosed as tinea cruris, is related to service or any complaints of rash therein. See 38 C.F.R. § 3.303(d). The first medical record documenting tinea cruris of the groin and buttocks was in November 2007 - over 38 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The present case involves not simply a lack of clinical evidence, but specific findings of no skin disorders at separation and a time gap of nearly four decades. Here, a chronic skin condition was not shown in-service, and there is no competent evidence linking the Veteran's current tinea cruris with his reported rash in service. The October 2012 VA examiner opined that the Veteran's current tinea cruris was not related to the "jungle rot" that he claimed to have had in service. The examiner noted that the Veteran was treated for a urological problem, but not a skin condition in groin area. As the VA examiner explained the reasons for his conclusion, which was based on examination findings, the Veteran's lay statements, and review of the claims file, this opinion is adequate for the adjudication of this claim and is entitled to substantial probative weight. 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 only other opinion is offered by the Veteran himself. To the extent that he asserts that his current tinea cruris is related to a rash that he had in service, such evidence must fail. Determining the etiology of his current skin condition is a complex medical matter beyond the ken of a layperson. Jandreau, 492 F.3d at 1376-77. The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship. Whether his current skin condition, i.e., tinea cruris, is related to an in-service rash that occurred many years ago requires specialized training. As a lay person untrained in the medical field, the appellant is not competent to render an opinion on etiology on this particular matter. In sum, the evidence shows that a chronic skin disorder did not manifest in-service, the weight of the most probative and competent evidence reflects that the Veteran's current tinea cruris did not manifest in service or for many years thereafter, and there is no competent evidence of a relationship between tinea cruris and service. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to service connection. Given that the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable to this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Scars The Veteran originally filed a claim of service connection for scars of the back and head. During an October 2012 VA scar examination, he reported that he sustained shrapnel wounds to his knees from an exploding grenade and a shrapnel wound to his forehead from an exploding bomb. The Veteran's service treatment records are unremarkable for any shrapnel wounds. At his June 1969 separation examination, the portion of the examination that requested the physician to identify body marks, scars, and tattoos was noted to be normal. He denied a history of head injury and no shrapnel wounds or residual scars were otherwise noted. The report of an October 2012 VA scar examination reflects that the Veteran had scars on his right and left knees and on his forehead. On his forehead, he had a scar in the hairline, which each measured 1 x 0.1 cm. On his right knee, he had four scars - two linear scars which each measured 4 x 0.1 cm and two circular scars which each measured 1 cm in diameter. On his left knee, he had three linear scars, which measured 8 x 1 cm, 3 x 1 cm, and 9 x 0.1 cm. The scars were not painful, unstable, adherent, or disfiguring. The Veteran could not identify a scar on his side and no scars were shown on his posterior trunk. The examiner found no documentation of any treatment for shrapnel wounds during service and that the scars could be from various sources. The examiner opined that he could not associate the Veteran's scars to shrapnel wounds without resorting to mere speculation. In this case, the Veteran reported that he sustained shrapnel wounds during combat. His statements are credible and are consistent with the circumstances, conditions, and hardships of his service. The Veteran served on active duty as a light weapons infantryman. His military personnel records reflect that his unit participated in the Tet Counter-offensive. Hence, the first two requirements of Collette's three-part test are met and the Veteran's statements are accepted as sufficient proof of the alleged injuries even though no record of such exists and service connection is presumed. Given that the record does not show clear and convincing evidence to the contrary, the presumption of service connection is not rebutted. For these reasons, the Board finds that service connection is warranted for scars of the forehead, right knee, and left knee. Regarding the claimed wound to the back, no scars of the back were reported by the Veteran during the VA examination and none were identified by the examiner. Without evidence of a current scar or residuals of a back wound, the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim). Increased Rating for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. In April 2008, the RO granted entitlement to service connection for a bilateral hearing loss and assigned a noncompensable evaluation effective June 5, 2007. The Veteran disagreed with the decision and subsequently perfected this appeal. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). 38 C.F.R. § 4.86. At the March 2008 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 15 30 80 85 52.5 LEFT 15 20 70 90 48.75 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 86 percent in the right ear and a score of 96 percent in the left ear. Application of the results from the March 2008 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level II hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. At the August 2009 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 25 40 90 95 62.5 LEFT 25 30 75 90 55 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 86 percent in the right ear and a score of 94 percent in the left ear. Application of the results from the August 2009 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level III hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. At the October 2012 VA audiological evaluation, the Veteran reported that he had difficulty understanding conversation, especially in noisy environments. Pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 25 30 80 90 56.25 LEFT 25 25 80 100 57.5 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 96 percent in the right ear and a score of 90 percent in the left ear. Application of the results from the October 2012 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing in the right ear and Level II hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. Considering the objective evidence of record, findings on VA examinations in March 2008, August 2009, and October 2012 all correspond to a noncompensable evaluation under Table VII. At no time since June 5, 2007, has the Veteran's hearing loss disability warranted a compensable evaluation. Thus, staged ratings are not for application. See Fenderson. The Board has considered the application of other various 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). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and symptomatology. He has complained of difficulty understanding conversation and hearing in noisy environments. Difficulties understanding speech due to hearing loss are contemplated in Diagnostic Code 6100. The criteria are based, at least partially, on speech recognition scores. Furthermore, Diagnostic Code 6100 provides for higher ratings for more severe impairment of hearing. Based on the foregoing, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board considered the United States Court of Appeals for Veterans Claims' (Court's) decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that he is unemployable due to his service-connected bilateral hearing loss. Indeed, on his original claim he specifically stated that he did not have a disability that prevented employment. Accordingly, a claim of entitlement to a total disability evaluation based on individual unemployability due to bilateral hearing loss is not deemed to be a component of the current appeal. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, an initial compensable disability rating for bilateral hearing loss from June 5, 2007, is denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for scars of the forehead, right knee, and left knee, is granted. Entitlement to service connection for a scar of the back is denied. Entitlement to an initial compensable evaluation for bilateral hearing loss from June 5, 2007, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs