Citation Nr: 1318971	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-07 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for a hernia disorder.

2.  Entitlement to service connection for hypertension, to include as due to exposure to certain herbicides.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to an increased disability rating for status post fungal infection of the bilateral hands and feet, rated as noncompensable prior to April 15, 2011, and at 30 percent thereafter.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney



ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had active service from May 1968 to July 1969.  He also had service in the United States Army Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005, September 2008, July 2009, and November 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Lincoln, Nebraska, that, in pertinent part, denied service connection for bilateral hearing loss, hypertension, and a hernia disorder, and denied a compensable disability rating for status post fungal infection to the bilateral hands and feet.

This matter was previously before the Board in February 2011 and January 2012 at which time it was remanded for additional development.  It is now returned to the Board.  As will be discussed further herein, the Board finds that the agency of original jurisdiction  substantially complied with the prior remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105   (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In a May 2011 rating decision, the Veteran was granted an increased 30 percent disability rating, effective April 15, 2011, for the status post fungal infection of the hands and feet.  A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, the claim for a higher disability rating for status post fungal infection of the hands and feet remains before the Board.
In February 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the Veteran's claim of service connection for bilateral hearing loss.  See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012).  See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995).  A VHA medical opinion was rendered in April 2013.

The United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symtoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.")  A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symtoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symtoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2009).  In light of Brokowski, Robinson, and Clemons, the Board has recharacterized the Veteran's claimed umbilical hernia disorder as indicated on the title page.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals VA treatment records dated through March 2012.  The remaining records contained therein are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of service connection for a hernia disorder 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.  Hypertension is not the result of a disease or injury in active service, including 
exposure to Agent Orange, and was not manifested to a compensable degree within any applicable presumptive period.

2.  Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred during active service. 

3.  Since April 3, 2009, the Veteran's service-connected status post fungal infection of the bilateral hands and feet has been manifested by recurrent fissures, scaling, and cracks; the area involved is between 20 and 40 percent of the entire body or exposed areas affected.  At no time during the appellate period has the Veteran's skin disability of the bilateral hands and feet involved more than 40 percent of the entire body or exposed areas affected, or required use of systemic therapies


CONCLUSIONS OF LAW

1.  The criteria to establish service connection for hypertension, to include as due to exposure to certain herbicides, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5107 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.303, 3.307, 3.309 (2012).

2.  The criteria to establish service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5107: 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.303, 3.307. 3.309, 3.385 (2012).

3.  Since April 3, 2009, the schedular criteria for a 30 percent disability rating, but no higher, for the service-connected status post fungal infection for the bilateral 
hands and feet, have been met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2008) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
 In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letters dated in April 2005, March 2006, May 2008, July 2008, April 2009, January 2011, and January 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.
For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice  regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007).

In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO.  Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life.  The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation.  The Veteran was also provided notice of the applicable relevant diagnostic code provisions.

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  There is no indication of any additional, relevant records that the RO failed to obtain.

In May 2009, the Veteran was afforded a VA examination, in connection with his claim for an increased disability rating for his skin disability, the report of which is of record (with a July 2009 clarifying note). 

In February 2011, the Board remanded the Veteran's case to the RO for the purpose of scheduling him for new VA examinations regarding his skin disability, and claimed hearing loss and hypertension disorders.  There has been substantial compliance with this remand as he was afforded such VA examinations in April 2011, the reports of which are of record.

The Board's January 2012 remand was to request that the Veteran provide releases authorizing VA to obtain all records of private medical treatment, including records from Dr. Vandewege in Holdrege, Nebraska, and complete an application for a total rating based upon individual unemployability due to service-connected disabilities (TDIU); obtain a clarifying opinion from the April 2011 VA audiology examiner; and schedule the Veteran for a VA examination to determine the combined impact of his service-connected disabilities on his ability to obtain and maintain gainful employment.  

There has been substantial compliance with this remand, as the January 2012 RO letter requested that the Veteran provide treatment records from Dr. Vandewege and advised him to complete and sign authorizations to enable VA to obtain any relevant private records on his behalf, and provided him with a formal application for a TDIU.  The Veteran did not respond to the RO's letter or submit a completed TDIU application.  

In a July 2012 written statement, the Veteran's attorney said that the Veteran reported that all his medical care, including care from his primary provider, Dr Vandewege, was through the VA clinics or facilities in Holdredge, Grand Island, Lincoln, and Omaha.  The attorney requested that "ALL" records from those facilities be obtained.  VA medical records, dated to March 2012, were obtained, and the VA records in the claims file include those from the clinics and medical facilities identified by the attorney.  

The Veteran was scheduled for a VA general medical examination in February 2012 and, in May 2012, the April 2011 VA audiology examiner provided a written opinion.  The records satisfy 38 C.F.R. § 3.326 (2012).  The April 2011 and February 2012 VA examination reports cured the deficiencies in the earlier opinions; hence, the Board ensured that its remand instructions were complied with.  Further, in April 2013, a VHA opinion was obtained regarding the Veteran's claim for service connection for bilateral hearing loss.

In sum, the Board finds that the duty to assist and duty to notify provisions of the 
VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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").

Service connection for certain chronic diseases, such as hypertension and sensorineural hearing loss,  may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. 

If a Veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e).  The enumerated diseases do not include hypertension.  38 C.F.R. § 3.309(e).

Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e), in part, to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents.  See 75 Fed. Reg. 53202-16 (Aug. 31, 2010). 

Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012).  

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, presumption is not the sole method for showing causation. 

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Hypertension

In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for hypertension, claimed as high blood pressure.

In light of the laws and regulations set forth above, service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997). 

The first determination to be clarified is whether the Veteran was exposed to Agent Orange.  The above-described presumptions apply only to Veterans who actually served on the land mass of the Republic of Vietnam. 

Here, the Veteran's service records show that he served in the Republic of Vietnam from October 1968 to July 1969.  Therefore, he is presumed to have been exposed to herbicides during active duty. 

The next question is whether the Veteran has a disease or disorder that is positively associated with exposure to Agent Orange or is otherwise related thereto.  Here, the objective medical evidence fails to demonstrate that he has a disease associated with exposure to Agent Orange or is otherwise related thereto, and he has not established a nexus between his claimed hypertension disorder and active service.  Accordingly, the Board must deny his claim for service connection for hypertension which was claimed as high blood pressure.

Service treatment records show that, when examined for entry into active duty in April 1968, the Veteran's blood pressure was 122/62 and he was found qualified for active service.  Service treatment records do not discuss complaints or diagnosis of, or treatment for, high blood pressure or hypertension.  When examined for separation in July 1969, the Veteran's blood pressure was 124/72, and a cardiovascular abnormality was not noted.

Post service, VA and non-VA medical records and examination reports, dated from 2001 to 2012, do reflect show complaints or treatment for, or a diagnosis of, high blood pressure, hypertension, or ischemic heart disease.

According to an April 2011 VA examination report, an examiner reviewed the Veteran's medical records and performed a clinical evaluation.  The examiner found no documented diagnosis of hypertension regarding the Veteran in the medical records.  This examiner reviewed results of cardiac tests, blood pressure readings, and documented primary care visit notes, that did not reflect a diagnosis of hypertension, or demonstrate evidence of persistent systolic blood pressures of 140 or greater or persistent diastolic blood pressures of 90 or greater.  The Veteran did not report to the examiner any specific symptomatology consistent with elevations in blood pressure.  In the VA examiner's opinion, the Veteran did not currently meet the diagnostic criteria for hypertension, nor did the Veteran demonstrate any current evidence of hypertension or ischemic heart disease.

The Veteran does not exhibit the manifestation of hypertension that had its clinical onset in service or that is otherwise related to active service.  In the absence of proof of a present disability or any complaints related to chronic or recurrent symptoms, there can be no valid claim, including under the provisions allowing service connection based on an undiagnosed illness.  See 38 C.F.R. § 3.317; Brammer v. Derwinski, 3 Vet. App. at 225 and McClain v. Nicholson, 21 Vet. App. at 319.  See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (noting that a determination as to whether a diagnosis sufficiently proximate to the filing of a claim so as to constitute evidence of a current diagnosis is a factual finding to be made by the Board in the first instance).  

In the absence of any competent evidence of current hypertension, the Board must conclude the Veteran does not currently suffer from such a disability.  The April 2011 VA examiner opined that the Veteran did not demonstrate any current evidence of hypertension or ischemic heart disease, and there was no documented diagnosis of hypertension in his medical records.  The examiner provided a clear rationale to support his opinion.  There is no medical evidence of record to contradict the VA examiner's opinion.  For such reasons, service connection for hypertension, to include as due to exposure to certain herbicides, is not warranted.

In denying service connection as to the claim on appeal, the Board has considered the Veteran's contention that a relationship exists between his claimed hypertension and active service.  In adjudicating this claim, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge.  See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). 

The Veteran is competent to describe his observable symptoms, such as a racing pulse.  However, he is not competent to make a statement of causation that is a medical determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  To the extent he is claiming that hypertension problems have persisted since service, this is inconsistent with the overall record, which reflects that he does not currently have hypertension or high blood pressure. 
The Board has considered the Veteran's statements as to having high blood pressure during service, in light of his service treatment records and post-service medical evidence.  The Board finds that the objective medical evidence of record is most persuasive and of more probative value than the Veteran's assertions.  The record fails to reflect that the Veteran was treated for hypertension during service, and his blood pressure was normal when examined for separation in July 1969.  The post service records are devoid of any reference to complaints or diagnosis of, or treatment for hypertension or high blood pressure.  In short, no competent medical opinion or other medical evidence relating the Veteran's claimed hypertension to service or any incident of service has been presented. 

The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology.  However, to the extent that the Veteran is claiming continuity of hypertension symptoms since service, his statements are outweighed by the medical evidence of record.  He made no mention of hypertension in July 1969 during his service examination at separation, and his blood pressure reading was 124/72.  He has not explained why he failed to mention pertinent difficulty when examined pursuant to service requirements.  The Board does not find that there is credible evidence of continuity of symptomatology present in this case. 

Moreover, while the Veteran is competent to state that he experienced high blood pressure in service, he is not competent to state that he has hypertension that is manifested as a result of service.  The clinical pathology of hypertension is not readily recognizable by a layman, such as varicose veins or acne.  See Jandreau v. Nicholson.  Even medical professionals rely on laboratory test results and other diagnostic tools to diagnose chronic hypertension disorders.

Further, the April 2011 VA examiner who reviewed the Veteran's in-service treatment records and his post service medical records, concluded that he did not have a diagnosis of hypertension.  The Veteran's contentions are outweighed by the medical evidence and opinion of the April 2011 VA examiner that reflects that he did not have a diagnosis of hypertension related to service.  Thus, the Veteran's contentions as to etiology are not deemed probative. 

The record also contains medical information from the Internet submitted by the Veteran in December 2008 in support of his claim that generally describes a possible association between exposure to Agent Orange and increased blood pressure levels among Veterans.  It indicates that such exposure "may" be raising blood pressure levels for aging Veterans of the Vietnam War era. 

The Board notes, however, that this document contains no specific findings pertaining to this Veteran's manifestation of hypertension.  As a lay person, relying on a generic medical treatise, the Veteran is not qualified to render a medical opinion as to the etiology of the cause of his claimed hypertension disorder.  See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the Veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995).  The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999).

In the present case, the medical literature submitted by the Veteran was not accompanied by the opinion of any medical expert.  Furthermore, based on the analysis above, the competent medical evidence of record suggests that he does not currently have hypertension that is at least as likely as not related to his active service.  Therefore, while the Board has considered the medical literature, it is not sufficient to outweigh the probative medical evidence of record and the opinion of the April 2011 VA examiner.

Thus, the Board is left with no documented complaints of hypertension in service and no documented complaints or findings of a diagnosed hypertension disorder after service.  The questions involved regarding causation are medical in nature.  

In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim of service connection for hypertension, including as due to exposure to certain herbicides, and his claim must be denied.  The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim.  Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001).

Bilateral Hearing Loss

Hearing loss disability is defined by regulation.  For 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. 

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Id. at 159.  The Court explained that when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id. at 160.  The Court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157. 

The Veteran is competent to describe symptoms of hearing loss, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing.  Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. at 307.

The Veteran asserts he was exposed to acoustic trauma in service that caused his currently diagnosed bilateral hearing loss.  Thus, he contends that service connection should be granted.  

Preliminarily, the Board notes that, in a February 2007 rating decision, the RO granted service connection for tinnitus, finding that a portion of the tinnitus was related to military noise exposure from artillery and gunshot, particularly during training, with no post-service noise exposure.

Service treatment records show that, on a Report of Medical History completed in April 1968, when the Veteran was examined for enlistment into active duty, the Veteran denied having hearing loss.  On audiological evaluation at that time, pure tone thresholds, in decibels, were as follows:




HERTZ



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

On a Report of Medical History completed in July 1969, when the Veteran was examined prior to service separation, he again denied having hearing loss.  On audiological evaluation at that time, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
-
0
LEFT
5
5
20
-
10

Post service, a May 2006 VA examination report indicates that the Veteran first noticed tinnitus in service.  He currently worked as a pilot including crop dusting.  The examiner concluded that it was as likely as not that the Veteran's tinnitus was due to military noise exposure but did not comment on hearing loss.

A February 22, 2008 private audiogram shows that the Veteran had "typical acoustic trauma hearing".

In August 2008, a VA audiologist reviewed the Veteran's medical records and conducted a clinical evaluation.  The Veteran had normal hearing sensitivity from 250 to 2000 Hertz, bilaterally, sloping to moderately severe to moderate hearing loss in the right ear, and mild to moderately severe hearing loss in the left ear.  The VA examiner opined that, based upon the normal hearing at separation, it was not at least as likely as not that the Veteran's current hearing loss was a result of noise exposure in service.  The rationale was the examiner's "[c]linical experience and expertise as a licensed audiologist."

In April 2011, another VA audiologist reviewed the Veteran's medical records and conducted a clinical evaluation.  It was noted that the Veteran flew crop-sprayers in the summer and occasionally rode in small aircraft in the winter, for which he used double ear protection.  Findings showed moderately-severe to moderate hearing loss in the right ear and a mild to severe hearing loss in the left ear.

The examiner stated that the Veteran had normal hearing sensitivity, bilaterally, at enlistment and separation with no permanent significant threshold shift in either ear during service.  The examiner opined that the current bilateral hearing loss was not as likely as not due to acoustic trauma during service.  The examiner concluded that additional noise exposure and aging since service were likely contributing factors to the Veteran's hearing loss.

In a May 2012 opinion, a VA examiner said that the February 22, 2008 private audiological exam showed high frequency hearing loss.  She noted that a hearing loss configuration consistent with acoustic trauma was a high frequency notched hearing loss.  The VA examiner stated that "the [V]eteran's hearing loss configuration on this 2008 exam could be considered consistent with acoustic trauma/noise exposure, but it can also be attributed to a combination of presbycusis and/or genetic factors."  

The VA examiner stated that etiology could not be solely attributed to acoustic trauma based on the incomplete audiological exam.  The examiner indicated that the Veteran worked as a farmer and commodities broker and flew small aircraft, "so there has been noise exposure throughout his civilian life."  The VA examiner stated that there was no evidence of military noise exposure causing this Veteran's hearing loss, so if the loss was due to noise exposure it would be post-military service noise exposure.

In February 2013, the Board requested a VHA opinion from a medical specialist regarding whether the Veteran had bilateral hearing loss that started in service or was otherwise related to his military service.  For the purposes of the opinion, the medical specialist was to assume that the Veteran had in-service noise exposure.

In an April 2013 report, a VA physician opined that the Veteran's high frequency hearing loss was "more likely than not" (50 percent probability or greater) due to acoustic trauma while in service.  The examiner noted the Veteran's normal hearing test results on enlistment and at separation, but indicated that there was mild asymmetry noted, particularly in the high frequency range with the left ear worse than the right one.  It was further noted that the February 2008 private audiogram showed significant asymmetrical hearing loss with the left ear being worse and the hearing loss pattern consistent with being due to acoustic trauma.  According to the examiner, this type of acoustic trauma was more likely in a right handed person due to shooting a rifle.

The examiner explained that the Veteran's hearing loss was compounded by genetic predisposition and presbycusis.  According to the VA physician, many "of these traumas started when patients are young with minimal clinical symtoms and signs however get amplified as they age and suffer more traumas.  That is the initial injury, although very subtle, [that] can predispose patients to develop significant disability as they age and develop more significant symtoms, compare[ed] with people who did not suffer any significant noise exposure during their younger years, as they are exposed to more acoustic trauma".

Here, the medical evidence is at the very least in equipoise.  The VHA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not related to exposure to acoustic trauma in service.  However, the August 2008, April 2011, and May 2012 VA examiners concluded that the Veteran's bilateral hearing loss was not due to noise exposure in service.  

Given the medical expertise of the VHA examiner, the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted.  As such, affording the Veteran all benefit of the doubt, service connection for bilateral hearing loss is warranted, and the claim will be granted.  38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385.  

Increased Disability Rating for 
Status Post Fungal Infection of the Bilateral Hands and Feet

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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 considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2012).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012).

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2011) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert, 1 Vet. App. at 49. 

Historically, service connection for a skin disability of the feet, currently resolved with no residual lesions, and hands, was granted in the February 2007 rating decision.  Separate noncompensable disability ratings were assigned for the hands and feet under Diagnostic Code 7806, effective March 17, 2006

In April 2009, the RO received the Veteran's current claim for an increased rating.  The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim.  Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).  A review of the Veteran's claims file reveals that following the issuance of the February 2007 rating decision, there is no evidence received within one year which relates to the service-connected skin disability.  Thus, with respect to the Veteran's claim seeking an increased disability rating, the July 2009 rating action, that denied a compensable disability rating for the skin disability of the hands and feet, is the proper rating decision on appeal.

The Board notes that, effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the skin, so that it more clearly reflects VA's policies concerning the evaluation of scars.  Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  However, these amendments only apply to applications for benefits received by VA on or after October 23, 2008, or for those Veterans who have specifically requested that their disability be rated under the new criteria.  As the Veteran filed his claim for benefits in April 2009, the amendments are applicable to the instant appeal.  But, here there is no evidence suggesting that the Veteran's disability is the result of a burn or can be characterized as a scar and, as such, Diagnostic Codes 7800-7805 are not applicable in rating his skin disability of the bilateral hands and feet. 

The evidence in the claims file also does not indicate, nor does the Veteran assert, that he has disfigurement of the head, face, or neck.  Therefore, the RO has appropriately considered the Veteran's service-connected skin disability under Diagnostic Code 7806 for ratings of dermatitis.  A noncompensable disability rating  is assigned prior to April 15, 2011, and a 30 percent disability rating thereafter.

Under Diagnostic Code 7806, a 10 percent disability rating is assigned for dermatitis or eczema covering 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 immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.

A 30 percent disability rating is assigned for dermatitis or eczema covering at least 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 during the past 12-month period.  Id.

A 60 percent disability rating is assigned for dermatitis or eczema covering 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.  Id.

The Board is aware of the Court's decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case that concerned the evaluation of a service-connected disorder that fluctuated in its degree of disability, that is, a skin disorder that had "active and inactive stages" or was subject to remission and recurrence.  See Ardison v. Brown, 6 Vet. App. at 408; see also Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (holding that "it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed.").  Thus, the frequency, duration, and outbreaks of skin disease exacerbations must be addressed and the skin disorder should be considered, whenever possible, at a time when it is most disabling.  See Bowers; Ardison. 

In this case, the Veteran has been examined multiple times.  His skin disorder has been evaluated at varying degrees of disability, and clinicians and examiners have observed it during a severe state.  The Board finds the evidence as a whole sufficient to rate the Veteran's skin disability.  The Board must consider all of the evidence. 

After a thorough review of the medical evidence, and giving the Veteran all benefit of the doubt, the Board finds that since he filed his increased rating claim in April 2009, a 30 percent rating, but no higher, may be assigned for his skin disability of the hands and feet.  38 C.F.R. §§ 4.7, 4.118.

VA medical records, dated from February 2008 to March 2012, describe the Veteran's treatment for a skin disability of his hands and feet.  He was repeatedly seen in the outpatient dermatology clinic at various stages of outbreak that, since June 2009, was treated with Clobetasol, a topical corticosteroid.  

October 2008 VA records show that the Veteran reported an intermittent rash on his left foot for a few weeks.  He had a fungal dermatitis between his toes with no secondary infection. The Veteran tried powder and cream that did not work and diflucane was prescribed for three days. 

A March 2009 VA primary care note shows that the Veteran complained of a history of at least 3 months of redness, burning, and scaliness of the left foot that worsened in the past three days with swelling of his toes.  On examination of his left foot, all his toes were swollen, with desquamation of many.  It looked chronic but there was extreme redness dorsum of the toes up to the midfoot approaching the ankle.  There was increased heat to the top of the foot.  A chronic fungus and possible secondary bacterial infection were suspected.  Lamisil and Augmentin were prescribed and the Veteran was advised to see his primary care provider or a dermatologist if there was no improvement.

In his April 2009 claim, the Veteran reported that his skin condition had worsened, and was red and itchy 80 percent or more of the time, but varied in intensity.  He was treated with oral medication that did not work, and also used over the counter lotion.  

Also in April 2009, the RO received 10 color photographs of the Veteran's feet and hand.  The photographs show that his skin disability was more severe on the left foot than the right one; and his left foot and toes appear red, puffy and cracked.

A May 2009 VA examination report indicates that the Veteran described his skin condition as intermittent but worsening.  He had his condition on the left foot more frequently than his right foot but it occurred on one or both hands and feet.  He used (Terbinafine (Lamisil)), a systemic anti-fungal medication, but stopped taking it due to side effects including malaise, fatigue, depression, dysuria, impotence, and an abnormal skin odor.  

The Veteran's current symtoms included mild to severe pruritus, pain, erythema, and heat sensation in the skin.  Examination revealed mild erythema of the dorsum of the left foot and scaling of the skin between most toes.  Moderate erythema was noted between the fourth and fifth toes.  The examiner reported that "90% affected of exposed area" and "two to four percent at this time. % affected of entire body".  (In July 2009, the examiner clarified that zero percent of the exposed areas were affected, and 90 percent of the Veteran's foot was affected.)  There was no scarring and photographs were not taken.  The diagnosis was fungal infection of the bilateral hands and feet.  The examiner said that, when the Veteran had a flare-up of his condition, the itching and pain prevented him from gainful employment and reduced ability to perform activities of daily living.  The flare up was not life threatening but was significantly disruptive to his life.

The Veteran was seen in the VA dermatology clinic in June 2009 with complaints of a rash to his left foot since August with significant flare since March 2009.  Examination of his feet revealed mild erythema to the distal left foot and toes with diffuse scaling and mild fissures.  There was no onychodystrophy to the left toe nails, but there was loss of the cuticles.  There was mild erythema of the hands with scaling.  The physician noted that photographs from "earlier in the year" showed "more dramatic erythema and scaling".  The assessment was left foot dermatitis and hand dermatitis.  Clobetasol cream to the hands and feet was prescribed.

A July 2009 VA dermatology clinic record shows that the Veteran reported that his left foot was improved and he admitted to being less consistent with using his prescribed Clobetasol cream.  He was also quite inconsistent in using it on his hands and applied it primarily to his joint knuckle areas.  

On examination of the Veteran's left foot, there was a very subtle mild erythema to the dorsal aspect of the left foot and toes in areas of previous dermatitis.  There was no scaling and no fissures observed on current examination.  There was mild pinkness to the skin overlying the knuckles of the hands with slight increase in skin lines with mild lichenification.  The assessment was left foot dermatitis improved (atopic) and mild lichenoid dermatitis of the hands.  The Veteran was advised to continue using the Clobetasol cream to his left foot and hands for three to four weeks.

A May 2010 VA dermatology clinic record shows that the Veteran was seen for follow up of a hand and foot dermatitis that was "flaring", especially to his right hand.  He used the Clobetasol on his left foot with benefit.  There was no pain associated with his skin disability.  

On examination, the Veteran did not appear in distress.  Examination of his hands and feet revealed minimal pinkness between the great and second toes of the left foot and mild erythema with scaling and fine fissures to the hands, right more than left.  The assessment was hand and foot dermatitis and he was advised to resume using Clobetasol twice a day.

A November 2010 VA primary care record reflects that the Veteran's prescribed medications included Clobetasol cream to be applied topically twice a day to affected areas of his hands and feet.  

When seen in the VA dermatology clinic in February 2011, the Veteran reported that his feet were doing well.  He used Clobetasol cream whenever activity started and it calmed it down.  His hands at times were clear but recently showed some activity.  He used hand lotion only at "HS".  Examination of his hands and feet revealed mild erythema to the distal hands with scaling and small fissures.  His feet were clear on current exam and he was advised to use to the Clobetasol cream to affected areas of the hands and feet twice a day, when the process was active (not for prevention).

An April 2011 VA examination report regarding the Veteran's dermatitis indicates that he reported, in general, that his hands tended to be more severely affected than his feet.  He described symtoms that included fissures, cracking, dryness, and some degree of itching and burning.  The Veteran indicated that his condition progressively worsened with regarding to frequency of burning, fissuring, and cracking, dryness, and affecting the skin of his hands and feet.  The condition was not progressive beyond his hands and feet.

The Veteran denied any systemic or constitutional symtoms.  The examiner reviewed the Veteran's medical records, including dermatology clinic notes.  The examiner stated that the Veteran's skin condition affected his hands and feet, bilaterally, that corresponded to greater than 20 percent and less than 40 percent of exposed skin and greater than five percent and less than 20 percent of total in surface.  The Veteran treated his condition with topical medications that included Clobetasol cream to the affected areas on twice a day basis.  The Veteran used prescribed cream topically up to daily that did provide a benefit in symptom reduction without side effects.  He currently was on no prescribed medications or other medications for his condition, other than the use of the prescribed cream and over-the-counter moisturizing lotions that kept the skin moisturized without side effects. 

Over the course of the preceding 12 months, the Veteran used topical cream on a more or less constant basis.  He reported no functional limitations to occupational duties as a direct result of this condition within the last year.  The Veteran worked as a spray pilot and lost no time from work or experienced (no) functional limitations to his occupational duties.  

It was noted that the course of the Veteran's condition was near-constant symtoms for which he used corticosteroids.  Between 20 and 40 percent of exposed areas and more than five percent but less than 20 percent of the total body area was affected.  On examination, the Veteran's hands and feet revealed minimal pinkness between the great and second toes on the left foot.  There was mild erythema with scaling and fine fissures to the hands, the right more than the left.  The diagnosis was bilateral hand and foot dermatitis.  No photographs were taken.

A November 9, 2011, VA dermatology clinic record indicates that the Veteran was seen for follow up.  He reported no activity to his feet with intermittent activity to his hands and had a variable response to using Clobetasol cream that he was not currently using.  

Objectively, the Veteran's hands showed mild erythema with mild scaling and increased skin lines to the distal fingertips, dorsal surface, and some associated onychodystrophy.  The assessment was hand dermatitis with associated onychodystrophy for which Lidex cream was prescribed.  At "HS", the Veteran was advised to cover his hands with Vaseline and cotton gloves and to use Aveeno cream for moisturizing when his eczema was inactive.

In February 2012, the Veteran underwent VA examination.  He used Clobetasol two to three times per week for eczema of his hands and had not received treatment for his feet in two years.  The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of his head, neck, or face.  The Veteran had been treated with oral or topical medications in the preceding 12 months, specifically, topical corticosteroids for six weeks or more, but not constantly.  He had not had any debilitating or non-debilitating episodes in the preceding 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis.  

On examination, the Veteran's eczema covered more than five percent of his total body and more than five percent of the exposed area.  There were no other pertinent physical findings, complications or symtoms related to the skin disability.  The examiner stated that the Veteran's skin disability did not impact his ability to work.

The RO assigned a 30 percent disability rating for the Veteran's skin disability of the bilateral hands and feet, effective from April 15, 2011, the date of the VA examination report describing involvement of more than 20 percent but less than 40 percent of the exposed skin surface and greater than five percent but less than 20 percent of the total surface.  The RO noted essentially the same involvement of the Veteran's hands and feet shown in the progress notes from the VA dermatology clinic, that was commensurate with greater than 20 percent and less than 40 percent of exposed skin, and greater than five percent and less than 20 percent of total in surface, and all doubt was resolved in favor of the Veteran, and the increased evaluation was assigned under Diagnostic Code 7806. 

The Board must reach a similar conclusion for the evaluation stage prior to April 15, 2011.  From late 2008 to early 2011, the Veteran repeatedly sought treatment for skin flare ups particularly on his feet.  The clinician in March 2009 noted the Veteran's swollen left foot and "extreme redness" (evident in the color photos submitted in April 2009); and, in June 2009 a dermatologist noted a "significant" flare and reported "mild erythema" of the hands and feet that was "more dramatic" earlier in the year.  In May 2010, another flare was reported, particularly on his hand, with "minimal" pinkness observed and, in February and April 2011, clinicians reported mild erythema.  

Although the Veteran has stated, and the medical evidence shows, that active flares are not daily occurrences, they do happen with fair regularity.  See Ardison, Bowers, supra.  It appears that the May 2009 VA examiner addressed only the active areas of eruption on the hands and feet, (noting that only two to four percent of the Veteran's entire body was affected, no percent of the exposed areas were affected, and 90 percent of his foot was affected), while the April 2011 and the treating doctors' assessments consider the entire course of the disabiity.  

Resolving all doubt in favor of the Veteran, the Board finds that the described skin condition affected his hands and feet, bilaterally, that essentially corresponded to greater than 20 percent and less than 40 percent of exposed skin and greater than five percent and less than 20 percent of total in surface since he filed his increased rating claim in April 2009, for which a topical corticosteroid was prescribed since June 2009 and, hence a 30 percent disability rating is warranted since April 3, 2009.

At no time during the appellate period has the skin disability picture presented approached that required for assignment of a higher, 60 percent disability rating.  The Veteran has not alleged, and no medical care provider has estimated, involvement of greater than 40 percent of the entire body or exposed areas.  There has been no use of systemic therapies of any duration.  Accordingly, a disability rating in excess of 30 percent either before or after April 15, 2011, is not warranted. 

The Veteran's skin disability has never met the requirements for higher ratings since one year prior to filing his claim or at any time throughout his appeal, so the Board cannot "stage" these ratings under Hart, 21 Vet. App. at 505.

The Board has also considered whether the Veteran's 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 an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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)(1) (2012).  

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected skin disabiity before considering if the Veteran is entitled to an extra-schedular rating.

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  

The evidence does not show marked interference with employment or frequent hospitalization as a result of the Veteran's skin disability that would warrant consideration of referral for an extraschedular rating.  The May 2009 VA examiner said that, when the Veteran had a flare-up of his condition, the itching and pain prevented him from gainful employment and reduced ability to perform activities of daily living.  The flare up was not life threatening but was significantly disruptive to his life.  However, the Veteran has not asserted, and the records do no show that he has lost any time from work due to the service-connected skin disability.  VA records indicate that he continues to work as a crop dusting pilot, and underwent cardiac testing in mid 2010 in conjunction with maintaining his pilot's license.  Further, in February 2012, the VA examiner expressly stated that the Veteran's skin disability did not impact his ability to work.

The manifestations of the Veteran's disability are scaling, cracking, redness, and fissures of his hands and feet.  The rating schedule contemplates these symptoms.  Diagnostic Code 7806.  The rating schedule is meant to compensate for average impairment in earning capacity and for considerable time lost from work commensurate with the percentage evaluations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration.  Id.; see also Thun v. Peake, 22 Vet. App. at 111.

In sum, a 30 percent disability rating, but no higher, is warranted for the Veteran's skin disability of his hands and feet since he filed his increased rating claim on April 3, 2009.  The benefit of the doubt has been resolved in the Veteran's favor to this limited extent.  38 U.S.C.A. § 5107(b).

In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a TDIU is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the record includes the February 2012 VA examiner's opinion to the effect that the Veteran's service-connected skin disability, right shin scar, and tinnitus would not likely prevent him from obtaining or maintain gainful employment for which his education and occupational experience would otherwise qualify him.  Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. 

ORDER

Service connection for hypertension, to include as due to exposure to certain herbicides, is denied.

Service connection for bilateral hearing loss is granted.

A 30 percent disability rating for status post fungal infection for the bilateral hands and feet is granted from April 3, 2009, subject to the laws and regulations governing the award of monetary benefits.

A disability rating greater than 30 percent for status post fungal infection for the bilateral hands and feet is denied.


REMAND

After carefully considering this matter, and for reasons expressed immediately below, the Board believes that the issue of service connection for a hernia disorder must be remanded for further development of the record.  The Board regrets the delay associated with this remand, especially considering that this matter was the subject of previous remands.  However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. 

The Veteran seeks service connection for a hernia disorder, claimed as an umbilical hernia.  In his August 2009 claim, he stated that he incurred a hernia injury in service in 1969 while stacking ammunition.  

Service treatment records show that, when examined for entry into active duty in April 1968, the Veteran reported that he had a ruptured hernia, and it was noted that he had a bilateral herniorrhaphy.  On examination, he was noted to have bilateral inguinal herniorrhaphy scars and found qualified for active service.  

Service treatment records do not discuss treatment for a hernia disorder.  When examined for separation in July 1969, the Veteran again reported a history of a ruptured hernia, and it was noted that he had a bilateral herniorrhaphy.  On examination at that time, a hernia disorder was not noted.

VA medical records show that, in August 2009, the Veteran was evaluated for an umbilical hernia that was more noticeable in the past five years.  In September 2009, he underwent primary surgical repair of an umbilical hernia.

A Veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012); VAOPGCPREC 3-2003.

In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service.  The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003).

In sum, the law as interpreted under Cotant v. Principi, 17 Vet. App. at 116 and VAOPGCPREC 3-2003 mandates that, to rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d. at 1096.

Aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

The Board is of the opinion that the Veteran should be afforded a VA examination to determine the nature and etiology of any hernia disorder found to be present.  

Recent medical records regarding the Veteran's treatment at the VA medical centers (VAMC) in Lincoln and Omaha, Nebraska, dated since February 2011, should be obtained.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC shall obtain all medical records regarding the Veteran's treatment at the VAMCs in Lincoln and Omaha for the period from February 2011 to the present, and from any additional VA and non-VA medical provider identified by him.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 

2.  The RO/AMC shall schedule the Veteran for a VA surgical examination performed by a physician with appropriate expertise to determine the current nature and etiology of any chronic hernia disorder found to be present.  A complete history of the claimed disorder should be obtained from the Veteran, including any post-service intercurrent hernia injury.  All indicated tests and studies should be accomplished and all clinical findings reported in detail.  The Veteran's claims file should be made available to the examiner prior to the examination. 

(a)  For any hernia disability found, the examiner is directed to provide an opinion as to whether it is at least as likely as not that such disorder was incurred in or aggravated by active service or is otherwise related to the Veteran's active duty. 

(b)  If the hernia disorder did not have its onset in service, the examiner is directed to state whether it is undebatable (clearly and unmistakably) that the condition existed prior to the Veteran's active service, to include being a congenital defect.  The examiner should state whether the disorder is a disease or a congenital defect. 

(c)  If it is determined that the identified disorder is a congenital defect, the examiner is directed to opine whether a superimposed disability became manifested in service and, if so, address the nature of that superimposed disability.  

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.

The absence of evidence of treatment for a hernia disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran.  If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner must clearly and specifically so specify in the examination report, with an explanation as to why this is so.  All opinions and conclusions expressed must be supported by a complete rationale.  

3.  The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further claim adjudication.

4.  The RO/AMC will then readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655.  The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The purposes of this remand are to obtain additional information and comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

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. 2012).



______________________________________________
DEMETRIOS G. ORFANOUDIS 
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs