Citation Nr: 1325558 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 13-05 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial (compensable) rating for a skin disorder manifested by boils, abscesses, and furuncles. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active military service from June 1984 to September 1992, and from September 2004 to May 2005. This appeal to the Board of Veterans' Appeals (Board) is from December 2009 and February 2013 rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). Among the Veteran's appeals is for a higher (compensable) initial rating for his skin disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). In February 2013, the RO denied the claim of entitlement to service connection for tinnitus. In a May 2013 statement, the Veteran's accredited representative references the filing of a notice of disagreement (NOD) at a future date if the claim is not resolved by then. Anticipating no additional disposition of the tinnitus claim, the representative's May 2013 statement should be construed as a timely filed NOD of the February 2013 rating decision. 38 C.F.R. § 20.201; see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The Veteran has not been provided an SOC concerning service connection for tinnitus, or given opportunity in response to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of that claim to the Board. See 38 C.F.R. § 20.200 (2012). So the Board is remanding, rather than merely referring the claim. Manlincon v. West, 12 Vet. App. 119 (1998). The claims of service connection for bilateral hearing loss, tinnitus, and a compensable rating for a skin disorder are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Tinnitus As mentioned in the Introduction, a timely NOD has been submitted regarding the February 2013 RO denial of service connection for tinnitus. The RO has not yet issued an SOC concerning the claim, so the Veteran has not been provided an opportunity, in response, to file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to "perfect" his appeal of these several additional claims to the Board. See again 38 C.F.R. § 20.200. In this circumstance, the Board must remand the claim, so the RO/AMC can provide the Veteran this necessary SOC, and give him opportunity in response to perfect his appeal of the claim by filing a timely substantive appeal. Manlincon, 12 Vet. App. at 238. Bilateral Hearing Loss The Veteran asserts that he has bilateral hearing loss that is the result of acoustic trauma that he sustained during his military service as an infantryman, when he drove trucks, and also when he was subjected to missile and small arms fire in artillery simulators. The Veteran has reported deteriorating hearing since his military service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Specifically concerning this claim for bilateral hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Service treatment records (STRs) from the Veteran's second period of service are not available. In December 2009, he was notified by VA of this unfortunate circumstance. The Veteran was not at fault for the loss of the missing records, and VA is under heightened obligation to assist the Veteran in the development of his claim. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). STRs from the Veteran's first period of military service show normal hearing at frequencies through 4000 Hertz. However, earlier STRs, including also at an October 1992 National Guard enlistment examination, so shortly after his military service, show that at 6000 Hertz his hearing in decibels was 30 on the right and 35 on the left. A VA audiological examination in November 2009 examination revealed pure tone thresholds in the Veteran's right ear at the frequencies of 500, 1000, 2000, 3000, and 4000, Hertz with pure tone thresholds of 5, 5, 15, 50, and 55 decibels; and in his left ear at the same Hertz frequencies, the pure tone thresholds were 5, 10, 15, 40, and 40 decibels. It was reported that the Veteran's bilateral sensorineural hearing loss was normal to moderate degree. The examiner reported that the claims folder had been reviewed, and that the Veteran had reported a history of noise exposure during service. It was stated that STRs showed that hearing examinations were all normal, and there was no threshold shift. Therefore, the absence of hearing loss prior to or during service was noted, and the hearing loss is not caused by noise exposure in the military, and is at least as likely not caused by the Veteran's history of occupational noise exposure. The examiner reported that the opinion was based on patient case history, c-file review, and configuration of audiogram. Findings from the November 2009 audiological examination show currently bilateral hearing impairment for VA purposes under 38 C.F.R. § 3.385. However, it is noted that the examiner reported normal hearing during the Veteran's military service, yet there were elevated readings at higher hearing levels and there is no accounting for or explanation concerning those elevated readings at higher levels, namely at 6000 Hertz, shown during and shortly after the Veteran's military service. Those elevated readings and their relationship, if any, to the Veteran's current bilateral hearing loss has not been considered. According to the holding in Hensley, higher threshold levels indicate some degree of hearing loss, and it is not necessary the Veteran have had this degree of hearing loss while in service, or even within the one-year presumptive grace period following his discharge from service for the initial manifestation of sensorineural hearing loss, in particular, to the minimally required degree of at least 10-percent disabling as an organic disease of the nervous system to warrant presuming it was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The relationship between those higher elevated readings during service and after service, and the Veteran's current bilateral hearing loss remains unresolved from a medical standpoint, so further clinical information is required. A Skin Disorder A VA compensation examination is needed to reassess the severity of the Veteran's skin disorder manifested by boils, abscesses, and furuncles as it appears he has never had a compensation examination to assess the severity of his skin disorder. He has not had a VA compensation examination for his skin. The Veteran maintains that his skin problems have worsened. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the U.S. Court of Appeals for Veterans Claims (Court/CAVC) determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating) and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. In response to his NOD, provide the Veteran an SOC concerning entitlement to service connection for tinnitus. Advise him that, upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should the claim be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302, etc. (2012). 2. The Veteran may have had Army National Guard service after September 1992, so if available, obtain those STR records from the appropriate service department. 3. Arrange for the Veteran's claims file to be forwarded to the VA examiner who previously provided an examination and opinion in November 2009. The examiner should be asked to review the record and prepare a supplemental report indicating the extent to which, if any, additional evidence impacts on her prior opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss can be attributed to his period of active military service or is shown within one year after his active military service. In so doing, the examiner should discuss the significance, if any, of in-service and shortly after service audiograms that show elevated hearing leves at 6000 Hertz, bilaterally. This term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as diagnosis or etiology is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should review the complete history from the Veteran regarding his claimed bilateral hearing loss disability and should remain mindful that, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied exclusively on the absence of evidence in the Veteran's STRs to provide a negative opinion. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected skin disability manifested by boils, abscesses, and furuncles. The claims folder should be reviewed by the examiner, and the examination report should note that review. Specifically, the VA examiner should address the following: a) Identify all pathology related to the Veteran's service-connected skin disability. Conduct all necessary tests and elicit clinical findings in response to the applicable diagnostic criteria. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805, 7806, 7820. b) Specify the location and extent of the skin disability in terms of a percentage of the body and a percentage of exposed areas, and the frequency that systemic therapy, such as corticosteroids or immunosuppressive drugs, have been required during the past 12-month period, if any. c) State whether that skin disability is manifested by exfoliation, exudation, or itching involving an exposed surface or extensive area; constant exudation or constant, extensive lesions, or marked disfigurement; systemic or nervous manifestations and ulceration, extensive exfoliation, or extensive crusting; or whether it is exceptionally repugnant. d) Specifically note whether the Veteran's skin disability involves disfigurement of the head, face, or neck, and describe the nature and extent of any disfigurement. Also, take into account any flare-ups the Veteran may have experienced during the year. e) State whether the Veteran's skin disability is productive of scarring and specify the size of any scar and whether it causes limitation of motion, or is painful, unstable, or superficial. f) Discuss whether the Veteran's skin disability is productive of any additional functional impairment. g) State what impact, if any, the Veteran's skin disability has on his activities of daily living, including his ability to obtain and maintain employment. 38 C.F.R. § 4.10. 5. Then readjudicate the claims of service connection for bilateral hearing loss and an initial (compensable) rating for a skin disorder. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).