Citation Nr: 1335315 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-03 837 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for shingles. 2. Entitlement to an increased disability rating for bilateral hearing loss, in excess of 20 percent prior to January 5, 2012, and in excess of 50 percent since January 5, 2012. 3. Entitlement to an increased disability rating for tinea versicolor of the trunk, tinea pedis, and tinea cruris, in excess of 10 percent. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from December 1947 to December 1951, and from September 1960 to September 1964. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the RO in New Orleans, Louisiana. In September 2013, the Veteran presented testimony at a Board hearing, which was chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. In September 2013, after the most recent supplemental statement of the case, the Veteran submitted additional medical evidence accompanied by a waiver of his right to have that evidence considered initially by the RO. At his hearing, the Veteran's asserted that his service-connected hearing loss and tinea versicolor of the trunk, tinea pedis, and tinea cruris have rendered him unemployable. In certain circumstances, the issue of a total disability rating based on individual unemployability (TDIU) is a component of increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). This case differs, however, because a formal claim for TDIU was considered and denied by the RO during the pendency of the claims now on appeal to the Board. TDIU was denied in a March 2012 rating decision, and the Veteran did not disagree with that determination. Nothing in Rice suggests that the finality of that decision can be overcome by subsequent allegations that the Veteran is entitled to a total rating (that is - by a subsequent informal TDIU claim). VA can bifurcate adjudication of the TDIU and increased rating claims, as long as the claimant has reasonable notice that this is being done. Here, the Veteran received independent adjudication of the TDIU issue from the RO, with a notice letter that informed him he had to appeal if he disagreed with the denial. The TDIU issue was not included in a supplemental statement of the case issued in 2013. Such actions explicitly and implicitly informed the Veteran that VA considers adjudication of the TDIU claim and the increased rating claims on appeal to be separate and distinct issues. Therefore, in the factual and legal circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim. The Veteran is free to file a TDIU claim with the RO in the future; the Board is merely declining to take appellate jurisdiction at this time. Although the Veteran disagreed with additional issues that were adjudicated in the January 2008 rating decision, on the VA Form 9, he specified that he had read the statement of the case and was only perfecting appeals as to certain issues. Those included the denial of service connection for shingles, and the ratings assigned for his service-connected bilateral hearing loss, tinnitus, and skin conditions. As no additional appeals were perfected, the Board lacks jurisdiction over any other matter decided in the January 2008 rating decision. 38 C.F.R. §§ 20.200, 20.202 (2013). Although the Veteran perfected an appeal of the disability rating assigned for tinnitus, the Veteran, through his representative, withdrew that appeal in writing in January 2013. Therefore, the Board no longer has jurisdiction over that issue. 38 C.F.R. § 20.204 (2013). The Board acknowledges that the Veteran's private physician in December 2008 asserted that symptoms of emotional distress and depression are associated with the Veteran's shingles, a disability for which service connection is granted herein. The issue of entitlement to service connection for a psychiatric/mental disability as secondary to a service-connected disability has not been adjudicated by the RO and is not currently on appeal. Therefore, the Board does not have jurisdiction over it. However, such an issue has been raised by the record. It is therefore referred to the RO for appropriate action. See 38 C.F.R. §19.9(b)(2013). In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased disability rating for tinea versicolor of the trunk, tinea pedis, and tinea cruris, in excess of 10 percent, is addressed in the REMAND below and is therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The evidence regarding a current diagnosis of shingles is in relative equipoise with the evidence against such diagnosis. 3. The current disability of shingles is related to a chicken pox infection in service. 4. Prior to January 5, 2012, the Veteran's bilateral hearing loss disability was manifested by combinations of audiometric readings and speech recognition scores that support no higher than a 20 percent rating. 5. Since January 5, 2012, the Veteran's bilateral hearing loss disability is manifested by combinations of audiometric readings and speech recognition scores that support no higher than a 50 percent rating. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, shingles was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Prior to January 5, 2012, the criteria for a disability rating higher than 20 percent for bilateral hearing loss were not met for any portion of that period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013). 3. Since January 5, 2012, the criteria for a disability rating higher than 50 percent for bilateral hearing loss were not met for any portion of that period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges that the Veteran's original claims file was damaged by flooding at the New Orleans RO in 2005. While the claims file has been reconstructed to some extent, the type and number of records that may have been destroyed or are otherwise missing is not known. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that when all or part of a veteran's service records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board finds that this holding is applicable to the Veteran's case. Service Connection for Shingles The Veteran asserts that he has been diagnosed with herpes zoster (synonymous with shingles, see Dorland's Illustrated Medical Dictionary 1729 (31st ed. 2007)), and that such diagnosis is related to an in-service episode of varicella (synonymous with chicken pox. Dorland's at 2053). There is no dispute regarding the incurrence of chicken pox in service. Service treatment records show that the Veteran was hospitalized at the San Diego Naval Hospital in March 1964 complaining of fever, chills, headaches, and a rash. The diagnosis was varicella. There also appears to be no essential dispute as to the etiologic relationship between the in-service chicken pox and remote onset of shingles. The dispute in this case appears to center on whether the Veteran actually has shingles as opposed to some other diagnosis, such as herpes genitalis or herpes simplex. There are conflicting opinions on this point. There was reportedly no sign of shingles when the Veteran was examined in May 2005 and March 2007. A VA nurse practitioner noted in a January 2006 treatment summary that the Veteran was confused as to whether he had genital herpes or shingles, and that in her opinion, he had herpes genitalis, not shingles. VA outpatient records in January 2008 reveal that the Veteran was supposed to be given the shingles vaccine; however, the clinic was out of it at the time. The Veteran indicated in the VA Form 9 that he never actually received the vaccine. However, a May 2013 VA primary care note includes a notation that the shingles vaccine was administered at Oschner Medical Center. The Veteran submitted a private opinion in December 2008. The physician noted that the virus that causes chickenpox often goes into a dormant or latent state with intermittent episodes of reactivation. The infection with the chickenpox virus is life long, thus the virus is never totally eradicated from the body. One manifestation of reactivation of the chickenpox virus or herpes zoster virus is shingles. This condition is characterized by prodromal pain or discomfort at a body site, followed by a maculo-papular eruption that develops into vesicles and later pustules. The pustules will finally crust and the area will heal. There will be intense pain at the site of viral reactivation. Aging is thought to predispose an individual to reactivation of the herpes zoster virus, resulting in shingles. Shingles can occur on any part of the body, including the genital region. The private physician opined that the episodes of shingles that the Veteran experiences now, are a direct result of developing chickenpox in 1964. A VA examiner in December 2009 appears to have acknowledged a history of shingles outbreaks since 1999, which come and go periodically, and which are manifested by pain and pruritus of blisters on the skin. The examiner also acknowledged that the Veteran had been treated for shingles in the prior 12 months with a topical corticosteroid. However, at the time of the examination, there were no active lesions. The examiner concluded that, as there were no active lesions, a diagnosis of shingles could not be made at that time. The examiner also opined that herpes simplex was a more likely diagnosis. Similar to the December 2009 examination, at the time of a January 2012 VA examination, there was no evidence of shingles present, although the specific purpose of the examination was to provide an opinion regarding how the Veteran's service-connected skin diseases impact employability. The examiner was not specifically asked to opine as the presence of shingles, which was not a service-connected disability. A May 2013 VA primary care note includes a notation of a prior medical history of shingles. The Board acknowledges that there remains some diagnostic doubt regarding the Veteran's various skin diagnoses, and whether shingles is among them. This stems to a great degree by the fact that the condition is intermittent and has not been observed in the active phase during evaluation. Additional development could certainly be conducted to obtain yet another opinion as to the specific infection or infections that are present in this case; however, the Board finds that this is not necessary. There is a competent medical opinion of record that finds specifically that the Veteran has shingles, that his symptoms and their remote onset are consistent with shingles, and that shingles is related to a chicken pox infection in service. The Board finds that the private opinion is well explained in terms of the record and in terms of accepted medical principles. It is also consistent with the apparent severity of the infection in service, requiring hospitalization, and with the concurrent development of significant hearing loss, which the private physician has also linked to the episode of chicken pox. The Board finds that the evidence in favor of a current diagnosis of shingles has reached relative equipoise with the evidence against the claim. As a diagnosis of shingles has been provided in conclusive terms by the Veteran's private physician, the Board finds that, notwithstanding the lack of a diagnosis confirmed by direct examination, all remaining diagnostic doubt must be resolved in favor of the claim. The criteria for service connection for shingles are met. Ratings for Hearing Loss Service connection for bilateral hearing loss was granted in a May 1965 rating decision, with a 20 percent rating assigned, effective September 26, 1964. The current appeal arises from a claim received in April 2005. The report of VA examination in January 2012 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 80 85 80 74 LEFT 40 80 80 80 70 Speech recognition ability was 48 percent in the right ear and 64 percent in the left ear. Applying these values to Table VI results in level IX in the right ear and level VII in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 50 percent rating. See 38 C.F.R. § 4.85. A private audiogram in January 2012 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 70 - 75 65 LEFT 40 70 - 75 62 Speech recognition scores were not certified by the examiner to have been conducted in accordance with Maryland CNC as specified under 38 C.F.R. § 4.85. Therefore, the Board has applied the score under Table VIA, which produces level V hearing in the right ear and level IV hearing in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 10 percent rating. A private audiogram in July 2008 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 75 - 80 68 LEFT 45 80 - 85 70 Speech recognition scores were not certified by the examiner to have been conducted in accordance with Maryland CNC as specified under 38 C.F.R. § 4.85. Therefore, the Board has applied the score under Table VIA, which results in level V in the right ear and level VI in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 20 percent rating. The report of VA examination in April 2007 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 75 80 80 71 LEFT 45 80 80 80 71 Speech recognition ability was 56 percent in the right ear and 76 percent in the left ear. Applying these values to Table VI results in level VIII in the right ear and level IV in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 20 percent rating. The report of VA examination in June 2005 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 80 80 80 71 LEFT 40 80 75 80 69 Speech recognition ability was 80 percent in the right ear and 72 percent in the left ear. Applying these values to Table VI results in level IV in the right ear and level VI in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 20 percent rating. A private audiogram in May 2004 reveals pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 70 75 80 66 LEFT 40 75 75 85 69 Speech recognition scores were not certified by the examiner to have been conducted in accordance with Maryland CNC as specified under 38 C.F.R. § 4.85. Therefore, the Board has applied the score under Table VIA, which results in level V in the right ear and level V in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 20 percent rating. The Board notes that, as each of the audiometric assessments contains at least one reading that is below 55 decibels, and as in no case is the reading at 1000 Hertz 30 decibels or less, the provisions for exceptional patterns of hearing impairment are not applicable. In sum, the audiometry and speech recognition results are consistent with the disability ratings currently assigned. The evidence does not support any higher rating under the rating schedule, either before or after January 5, 2012. The Board has also considered whether an additional staged rating is supported; however, there is no portion of any period on appeal during which a higher rating is warranted. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Although disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Veterans Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Board notes that the Veterans Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra- schedular rating is warranted. Specifically, the Veterans Court noted that, "[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The Secretary's policy (requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities) facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak, 21 Vet. App. at 455. In May 2005 correspondence, the Veteran reported that his hearing had gotten worse and that he was unable to hear normal conversations perfectly. The report of an April 2007 VA examination reveals complaint of difficulty hearing in both ears. The report of VA examination in January 2012 reveals that the Veteran reported difficulty understanding conversation with others and television. The examiner opined that it can be expected that the Veteran's hearing loss may result in some difficulty understanding speech in difficult listening situations, like in the presence of background noise, when he cannot see speakers' faces, or over the phone. However, with amplification and with reasonable accommodations as specified in the Americans with Disabilities Act, his hearing loss should not significantly affect his vocational potential or limit participation in most work activities. In January 2012 written correspondence, the Veteran reported problems watching television when trying to find the appropriate volume as to not have it too loud for his wife, but loud enough for him to hear. The Board finds that the functional effects of the Veteran's hearing loss disability are adequately addressed by the examination reports and by the Veteran's reports, and that these are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). 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. Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so 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"). Thun v. Peake, 22 Vet. App 111, 115-16 (2008). In this case, the Veteran's symptoms consist of decreased auditory acuity, or ability to hear, and difficulty understanding speech, as described in the Veteran and by the examination reports. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's hearing loss. In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran has not identified any deficiency in the notice and assistance provided under the Veterans Claims Assistance Act of 2000 (VCAA). As the claim of entitlement to service connection for shingles is granted, the claim is substantiated, and there are no further VCAA duties. The Veteran was provided a VCAA notice letter in February 2007, which contained the required information regarding the rating for hearing loss. He was also provided adequate VA examinations, and he has not contended otherwise. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2011). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the Veteran verified that all pertinent records had been submitted. The Veteran's symptomatology was discussed in detail, and testimony concerning his level of impairment was elicited. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. ORDER Service connection for shingles is granted. Prior to January 5, 2012, a disability rating for bilateral hearing loss in excess of 20 percent is denied. Since January 5, 2012, a disability rating for bilateral hearing loss in excess of 50 percent is denied. REMAND There is a significant overlap of symptomatology between the service-connected tinea versicolor of the trunk, tinea pedis, and tinea cruris and the newly service-connected shingles. Each of these conditions can result in symptoms such as skin lesions, rash, itching, and pain. These conditions will likely be rated together, at least in part. The Veteran's complaints include skin involvement of his forehead and neck. A March 2007 examination report reveals findings of hyperpigmented macules on the forehead. A notation in the claims file from the RO indicates that such involvement should not be rated as the Veteran is not service-connected for this condition. However, it is the Veteran's clear assertion that this symptomatology is associated with his service-connected disabilities. As this determination will likely affect the applicability of diagnostic codes governing disfigurement of the head, face, or neck, and thus the rating assigned, the Board finds that an examination and opinion are necessary to determine the manifestations and severity of the Veteran's skin involvement. Accordingly, the issue of entitlement to an increased disability rating for tinea versicolor of the trunk, tinea pedis, and tinea cruris, 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) (2013). Expedited handling is requested.) 1. Schedule an appropriate VA examination to determine the current manifestations and severity of service-connected tinea versicolor of the trunk, tinea pedis, and tinea cruris. The relevant documents in the claims file should be made available to the VA examiner. The examination report should include all current complaints and all findings pertinent to the rating schedule for skin disabilities. The examiner is specifically asked to address whether the service-connected disabilities include involvement of the head, face, or neck, and if so, the extent and manifestations of such involvement, to include overall coverage area and the 8 characteristics of disfigurement. 2. Readjudicate entitlement to an increased disability rating for tinea versicolor of the trunk, tinea pedis, and tinea cruris. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded issues must be afforded expeditious treatment. The law requires that all issues 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs