Citation Nr: 1616245 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 09-27 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 30 percent for dyshidrotic eczema of the hands. 3. Entitlement to a compensable evaluation for bilateral hearing loss. 4. Entitlement to service connection for a bilateral ankle condition, including as secondary to cardiovascular disease. 5. Entitlement to service connection for a bilateral hip condition also claimed as a bilateral leg condition, including as secondary to cardiovascular disease. 6. Entitlement to service connection for a bilateral foot condition, including as secondary to cardiovascular disease. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran, his spouse, and R.B. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1967 to May 1970, including in Vietnam, and was awarded the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied increased ratings for dermatological condition of the hands and left ear hearing loss; and granted service connection for PTSD, assigning an initial 30 percent rating. Also on appeal, a November 2008 rating decision of the RO in Columbia, South Carolina denied the claims for service connection for conditions of the bilateral lower extremities. After a July 2013 rating decision granted service connection for right ear hearing loss, the issue on appeal was modified to that of entitlement to a compensable rating for bilateral hearing loss. The Board has modified the issues some, as needed. A designated representative in April 2015 (just prior to appointment of the current representative) appears to contend that the Veteran has atherosclerotic heart disease related to Agent Orange exposure which then caused vascular problems in the lower extremities. This statement raises the theory of service connection for bilateral lower extremity disability secondary to atherosclerotic heart disease, and moreover, indirectly appears to raise a claim of service connection for atherosclerotic heart disease, which must be adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ). See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). The Board further takes appellate jurisdiction of a claim for TDIU, based on assertions of inability to work as due to service-connected disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); VAOPGCPREC 6-96 (Aug. 16, 1996). Also for the record, the Veteran previously had a Travel Board hearing scheduled in this case, but cancelled the proceeding in advance of the scheduled hearing date. See 38 C.F.R. § 20.704(e). A July 2010 hearing was held at the RO before a Decision Review Officer (DRO). The issue of entitlement to service connection for atherosclerotic heart disease appears to have been raised by the record. The Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of service connection for several conditions of bilateral lower extremities, as well as TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Since March 6, 2014, the Veteran's PTSD involved occupational and social impairment with reduced reliability and productivity. Prior to then, the Veteran demonstrated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's dermatological condition of the hands does not involve more than 40 percent of the entire body or exposed areas affected, or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required over a 12-month period 3. There is hearing loss Level II in both ears. CONCLUSIONS OF LAW 1. The criteria are met to establish a 50 percent evaluation for PTSD from March 6, 2014, with 30 percent to remain in effect prior to then. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code 9411 (2015). 2. The criteria are not met for an evaluation in excess of 30 percent for dyshidrotic eczema of the hands. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.118, Diagnostic Code 7806 (2015). 3. The criteria are not met for a compensable evaluation for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. On claims for increased evaluation for hearing loss and a dermatological condition, the Veteran received timely and thorough VCAA-compliant notice on how to substantiate these issues. For increased evaluation of PTSD, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of Notice of Disagreement (NOD) with the assigned initial disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice as to this "downstream element." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). No detriment involving VCAA notice has been alleged by the Veteran, and so the notice provided on the original claim for service connection is sufficient. VA's duty to assist has been properly fulfilled. The AOJ has obtained relevant VA Medical Center (VAMC) outpatient records, and arranged for VA Compensation and Pension examinations. There is no indication of private treatment records to acquire. The Veteran has provided lay witness statements from himself and others. He testified at a DRO hearing A Travel Board hearing was later cancelled by the Veteran. There is no indication of further development to complete. The Board has a sufficient basis upon which to issue a decision upon the claims. Increased Evaluation for PTSD Disability evaluations are determined by application of the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The rating schedule has Diagnostic Codes for rating each disability. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation applies if disability more closely approximates that level. 38 C.F.R. § 4.7. The Veteran's claim is for a higher initial rating than 30 percent for PTSD since the November 8, 2006 award of service connection for that condition. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The VA rating schedule evaluates PTSD under Diagnostic Code 9411. The rating criteria for Diagnostic Code 9411 is provided under a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that rating formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In applying the rating criteria, the symptoms listed in each category are not required for that evaluation, but are examples. Consideration must be given to factors outside the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). That still does not make the listed symptoms nondeterminative. A claimant filing for increase must demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Looking at relevant evidence, the Veteran's March 2007 lay statement indicates that as a result of recollection of events from service he was "jumpy," had nightmares and anger, and was upset and did not trust anybody. Then on March 2007 VA examination by a psychologist, it was indicated the Veteran had no prior history of psychiatric hospitalization or treatment and had never attempted suicide. He denied a history of drug problems, or recent history of problems with alcohol. He had been admitted to a VAMC outpatient program for treatment of PTSD, though clinical diagnosis through that program gave a "rule out diagnosis of PTSD." He was not on any psychotropic medications. As to other history, the Veteran had been gainfully employed until recently. He had a good relationship with his wife of nearly 30 years, and a distant relationship with a son from previous marriage. Mental status examination indicated the Veteran was well-oriented, appropriately dressed with good grooming and hygiene. Speech was normal in rate, volume, and tone. Thought process was linear, coherent and goal-directed and demonstrated no gross evidence of thought disorder. He denied suicidal or homicidal ideation. He denied auditory hallucinations, though indicated he did see "spirits" and had for many years. He indicated that they looked like "old people" and did not communicate with him. There was no paranoia or sign of delusions. There was no observable evidence of psychosis or mania. Mood was "ok," affect was variable and congruent to content of speech. He was pleasant and cooperative with a benign attitude toward the interviewer. The Veteran endorsed intrusive recollections, and nightmares, about 4 nights a week. He did not try to avoid thoughts or feelings associated with Vietnam, although he stated that he did at times find himself avoiding talking about his experiences. He did report avoiding some activities, places and people that were reminders. He further denied anhedonia, stating that he still had recreational pastimes. He reported that in more recent years, he had felt increasingly like he "does not fit in." He endorsed insomnia and angry outbursts. He also endorsed hypervigilance and hyperstartle, although he had been working on trying not to be "on guard" so much. He reported ongoing feelings of sadness and guilt. He denied feelings of helplessness, hopelessness or worthlessness. On psychometric testing, his scope on the Mississippi Scale for Combat-Related PTSD was consistent with a diagnosis of PTSD in the mild range. The diagnosis was PTSD, chronic, mild; and depression, not otherwise specified (NOS). A Global Assessment of Functioning (GAF) score (a clinical tool used in the prior edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM-IV) was assigned of 65, chosen to reflect the mild nature of the Veteran's PTSD symptoms and their impact on his mental and interpersonal functioning. According to the examiner, in summary, the Veteran met the criteria for PTSD more likely than not related to his combat experiences in Vietnam. His symptoms appeared to be in the mild range. Despite having these symptoms for a number of years before seeking help the Veteran had functioned satisfactorily in his work and marriage. He had demonstrated job stability through the years and had not had performance problems. His PTSD symptoms likely caused mild difficulties, if any, on the job in terms of interacting with others. To this point, he had demonstrated good impulse control. His PTSD symptoms were also likely to cause mild distress and dysfunction in his marriage, particularly in the area of anger management. His symptoms likely caused mild to moderate distress in terms of his experiences of sadness, anger, irritability and insomnia. Lay witness statements from friends and family attest to personality differences and symptoms of nightmares and anger outwardly demonstrated by the Veteran since his return home from service. There is a history of VAMC outpatient evaluation. A January 2007 consult showed the Veteran to have euthymic mood, appropriate affect and judgment, moderate insight, and good cognitive function. He was also benefiting from weekly group therapy. Records from around that same time showed absence of psychiatric treatment, enduring marriage, and good stable work record. There were occasional nightmares and some difficulty sleeping, but no evidence of major mood disturbance, or indication of anger or violent behavior. During the July 2010 DRO hearing the Veteran testified about having nightmares and periods of anxiety, two to three times a week. A November 2011 re-examination indicated at the outset, a diagnosis of PTSD. It was further stated the Veteran appeared to be suffering from mild symptoms of PTSD, mainly with nightmares, intrusive thoughts, hypervigilance, hyperarousal, sleep disruption, and irritability. A GAF was given of 70 because of the low number, frequency, and intensity of slight symptoms associated with minimal reduction of social, vocational, and mental functioning. This score was intended to reflect his high level of functioning and expected reaction to stressors. It was estimated the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. As to relevant history, the Veteran had retired from his job approximately two years ago, due to having less energy and being less physically able to perform the job now that he had gotten older. The Veteran had been prescribed hydroxyzine, and reported being satisfied both with his medication and individual therapy reporting that he felt things were working well for him. There had been no significant legal or behavioral issues or changes since the last VA exam of March 2007. Symptoms of PTSD were listed as anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner commented that the Veteran appeared to be having fairly mild symptoms of PTSD at that time. He presented with reexperiencing in the form of nightmares and intrusive thoughts, as well as sleep disruption, slightly increased irritability and some avoidance of talking about his experiences outside of the therapeutic context. It was indicated, however, that since the last exam in March 2007, the Veteran actually reported improved symptomatology with both his present mental care providers, as well as the VA examiner, resulting in an overall psychosocial functioning increase, including as reflected in the GAF score. VAMC outpatient psychiatric consult of August 2012 indicated the Veteran's sleep was improved with medication which he took as needed. He still had occasional nightmares and increasing thoughts of Vietnam. There was no evidence of psychosis, major mood disturbance, suicidal or homicidal ideation or intent, or anger or violent behavior. He was alert, oriented, cooperative, pleasant and appropriate. He was in no acute distress. Mood was euthymic. Affect showed full range, well modulated. He was future oriented. The assigned GAF was 70. Besides the above report and its contents, there are other outpatient consults from around this time indicating substantially similar results. On more recent April 2014 psychiatric evaluation, the Veteran stated he felt he had been doing "ok" since the last appointment, with fairly stable mood and manageable anxiety levels. He did continue to report occasional nightmares, perhaps less frequent than before, and some recurring intrusive thoughts. Sleep was improved with hydroxyzine. There were no abnormalities of thought process, speech, cognition, or perception. March 2014 re-examination indicated, in the examiner's view, there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran had a good relationship with his wife, but refrained from expressing emotion for he was afraid to lose her. He had been retired since 2009, and had had no educational coursework since the last examination. He had had no inpatient psychiatric inpatient admissions. He had undergone individual and group outpatient treatment through VA clinics. According to the examiner, he assessed for the level of the Veteran's PTSD symptoms, and the Veteran reported to the examiner recurrent and distressing dreams on a daily basis related to Vietnam, in contrast to telling his regular VA treatment provider that he had occasional nightmares. The Veteran also reported to the examiner having intense or prolonged psychological distress at reminders of service, marked physiological reaction to unexpected sounds, and being avoidant of reminders of service. He also described a persistent negative emotional state of guilt related to service, and endorsed an unwillingness to experience loving feelings for others in order to not lose them afterwards. The Veteran described angry outbursts, typically expressed as physical aggression towards objects, having reported destroying property in his home ten times a week, and, getting into arguments with other people while shopping. As noted by the VA examiner, however, these reports were in complete contrast to what the regular VA treatment provider found -- "no evidence of anger or violent behavior." The Veteran further described a persistent sleep disturbance. His wife would not sleep with him because he had flashbacks at night. He also awakened and patrolled the house. Further indicated, when asked about mood symptoms by the examiner, the Veteran reported that he had been depressed "six days a week for the last five years." He also endorsed passive suicidal ideation. His statements were in contrast to the information he had provided to his regular psychiatrist, where he had denied suicidal ideation, anger problems, and major mood issues. When asked about psychotic symptoms, the Veteran denied paranoid delusions and auditory hallucinations. He described brief, fleeting images of people in his periphery that caused no distress. In the absence of any indication of a loss of the ability to recognize everyday reality, these perceptual experiences would not be considered psychotic. When asked to describe his daily routine, the Veteran indicated that his wife slept on another floor in the home. The Veteran related that he owned 100 knives. Then in response to questioning as to daily activities, he often spent time taking care of his mother, and other times would go out with his spouse for brief trips. He kept in contact with the other members of the unit in which he had served in Vietnam. He reported that he had not had behavior legal issues the last several years, except for episodes of road rage. He denied any excessive use of alcohol, and denied using illicit substances. The Veteran was found to have symptoms of anxiety, suspiciousness, chronic sleep impairment, and inability to establish and maintain effective relationships. During the interview, the Veteran was alert and well-oriented. He spoke in an organized, logical, and coherent manner. Some of his responses were briefly discursive. He displayed a full range of affect, including the use of humor at appropriate moments. There was no evidence of psychosis, such as voiced delusions, paranoia, or the appearance of internal stimulation. The VA examiner summarized that the Veteran continued to experience PTSD symptoms related to service, although it was impossible without resort to mere speculation to assess the severity of his symptoms (and the effect of the resulting impairment on the Veteran's ability to maintain employment) because he described more severe and more frequent symptoms to the VA examiner than he had presented to his VA mental health providers. For example, he reported frequent nightmares, many episodes of physical aggression toward objects, and occasional passive suicidal ideation, but progress notes consistently noted infrequent nightmares and an absence of angry behavior or suicidal ideation. According to the VA examiner, it was possible that the Veteran had under-reported his symptoms to his regular treatment psychiatrist but gave an accurate report during the current exam. It was also possible that he over-reported his symptoms during this interview, a possibility that was supported by the Veteran's repeated assertion during the interview that he should receive 100 percent service connection for PTSD because of all that he had gone through, as well as several comments that his current VA psychiatrist also thought he should receive 100 percent compensation (although there were no statements from the psychiatrist on this point to be found in progress notes.) Having reviewed the above, a partial grant of the claim is being awarded, granting the higher rating of 50 percent for PTSD effective March 6, 2014. A 30 percent rating will remain in effect prior to then. Based on the evidence prior to March 6, 2014, which time period is first considered, the Board finds that a 30 percent evaluation still best approximates the level of mental health disability shown. The VA rating schedule defines a 30 percent rating under Diagnostic Code 9411 generally as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The symptoms present are basically consistent with that definition. The Board sees that the Veteran retains a good interpersonal relationship with his spouse and a close friend, and during this time fortunately was able to work with minimal disruption from PTSD symptoms. Consistently his mood was euthymic, outlook was good, and symptoms were more limited in scope, primarily these being periods of anger and sleep disturbances with periodic reported nightmares. Mental health providers' and psychometric testing showed PTSD estimated in the mild range. While an examiner's assessment of severity of a mental health condition in the moment does not by itself determine a claim, under 38 C.F.R. § 4.126(a), here the providers' observations of a mild level PTSD are in agreement. Otherwise, speech, thought process, and cognitive function were good. The Veteran at the DRO hearing did report having had periods of anxiety symptoms, two to three times a week - but it is not clear these were characteristic anxiety attacks, and no evaluating mental health treatment provider has independently noted anxiety attacks. Also, while a 2011 VA examiner noted "disturbances of motivation and mood," which technically falls under the 50 percent rating criteria, the overwhelming findings in the examination report both by statement and implication is that actual mood disturbance was more limited, particularly given the examiner's repeated finding of "mild" PTSD, the lack of observation of significant depression or anxiety, and the finding that the Veteran's symptoms had actually improved since the last examination. It can be concluded that the Veteran did not have any of the characteristic symptoms of a 50 percent evaluation under Diagnostic Code 9411: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Nor were there other symptoms present of such frequency, duration, or severity that were not listed in the rating criteria suggestive of a higher evaluation. Accordingly, a 30 percent rating prior to March 6, 2014 is warranted under the VA rating schedule. For the time period since the March 6, 2014, VA re-examination, a 50 percent rating is granted. There is reported worsening of symptoms, across the spectrum, with anxiety, difficulty maintaining effective social relationships, and sleep disturbances. As the examination report directly states, there are contradictory reports as to the severity of the symptoms, particularly between what the Veteran reported to the examiner, and what his ongoing VA treatment and counseling records show as being significantly milder in severity. For instance, the VA examiner noted there was a disparity in reported quality of social relationships; the Veteran had never reported bitter arguments with others when out in public, or aggression towards objects, or even passive suicidal ideation during treatment. Considering this contradictory evidence, the Board on the whole accepts the proposition that PTSD got worse to a degree, mindful of the long-term extent of the condition, and therefore, while the majority of the treatment notes do not indicate the criteria for a higher rating, giving the Veteran the benefit of the doubt, the Board will increase the evaluation to 50 percent disabling as of March 6, 2014. See 38 C.F.R. § 4.3. The basis for a higher rating of 70 percent is not shown on the current evidence. Again, the Veteran remains capable of full cognition, appropriate speech and logical thoughts, and appropriate behavior. The examiner also noted some inconsistencies in medical history; the Veteran's representative noted the Veteran has previously testified he was reluctant to disclose his full symptomatology to VA outpatient providers, and while this may have been the case, does not explain still why different accounts would be provided between treatment providers, and the 2014 VA examiner. Meanwhile, besides what was reported at the 2014 exam his overall demeanor and pattern of behavior, chronicled through continued VA outpatient treatment and social history, does not suggest frequent impulsive episodes of anger, and likewise, elsewhere he has been found repeatedly not to have any form of suicidal ideation. In addition, while the VA examiner technically noted "inability" to form interpersonal relationships at the 2014 examination, this finding is inconsistent with the findings in the rest of the examination. Particularly given the examiner's perspective having questioned at times the accuracy of what the Veteran reported. This is not to mention that VA outpatient records from the same time period do not begin to note or support the same. Essentially, the denoted symptoms under Diagnostic Code 9411 for a 70 percent rating are not present: suicidal ideation, obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Nor are there substantially similar symptoms or individual listed symptoms from the list, such as possible suicidal ideation, that are of such duration, severity and frequency that they equate to occupational and social impairment with deficiencies in most areas such as school, work, family relations, judgment, thinking or mood. Accordingly, a 50 percent evaluation is assigned as of March 6, 2014 Increased Evaluation for Dermatological Condition of the Hands Dyshidrotic eczema of the hands is rated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806, for unspecified dermatological condition rated on the basis of dermatitis or eczema. Under Diagnostic Code 7806 for dermatitis or eczema, looking just at the relevant parts, a 30 percent rating is assigned where 20 to 40 percent of the entire body or exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Where more than 40 percent of the entire body or exposed areas are affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period, a 60 percent rating is warranted. As properly indicated by the RO, the Veteran's 30 percent evaluation has been in effect for more than 20 years, and so is a protected rating under 38 C.F.R. § 3.951(b). The question remains for purpose of this appeal whether a higher than 30 percent rating is warranted. VA examination of October 2006 indicates the course of the Veteran's skin condition was one of waxing and waning. The Veteran noted the rash of the hand "comes and goes." There was no treatment at that time, or during the prior 12-month period. There was 0 percent of exposed areas affected, and 0 percent of the entire body affected. There was no scarring. The condition was not acne or chloracne. There were no diagnostic or clinical tests. No rashes were visible on examination, and the diagnosis was of normal skin exam. Next examination, in October 2011, the diagnosis at the outset was dyshidrotic eczema. It was indicated that there were no scarring from the dermatological condition, no benign or malignant skin neoplasms, and no systemic manifestations due to any skin disease (such as fever, weight loss or hypoproteinemia associated with erythroderma). The Veteran has utilized for treatment a course of topical corticosteroids, 6 weeks or more over the prior 12 months, but not constantly or near constantly. There have not been debilitating episodes in the previous 12 month due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran's eczema covered less than 5 percent of total body area, and between 5 and 20 percent of exposed area. Essentially, there was scaliness of the palmar aspects of hands. However, there was no impact upon ability to work. March 2014 re-examination for dyshidrotic eczema indicated over the years the Veteran had used creams for treatment, medication name unknown. The symptoms now were itching and small blisters on the palm and fingers which came and went. He complained of decreased sensation in the hands, but this was not due to the eczema, but peripheral vascular disease and/or carpel tunnel syndrome. The skin condition had not caused scarring or disfigurement, skin neoplasms, or systemic manifestation. He had not used oral or topical medications in the previous 12 months for any skin condition. There were no external symptoms of a skin condition, and so no estimated or observed percentage of body exposure. Hands were cool to touch due to peripheral vascular disease, otherwise no blisters, erythema, pustules, papules, or signs of rash on the bilateral hands. The examiner summarized that there was no evidence of dyshidrotic eczema of bilateral hands on the examination. Based on the evidence, a 60 percent rating is not warranted for the Veteran's dyshidrotic eczema of the hands. This dermatological condition waxes and wanes. VA's duty is to ideally examine the condition in active phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The 2011 VA examination meets this requirement, because the condition did clearly show up. On this exam, the skin rash covered less than 5 percent of total body area, and between 5 and 20 percent of exposed area. Clearly present, it still was not more than 40 percent of entire body or exposed areas. Likewise, the Veteran used topical corticosteroids, 6 weeks or more over the prior 12 months, but not at a "near-constant or constant" level. See generally, Johnson v. McDonald, No. 14-2778 (Vet. App. Mar. 1, 2016) (topical application of corticosteroids qualifies as systemic therapy). This more limited usage of topical corticosteroids is reinforced by the fact that on 2014 examination the Veteran apparently did not use such treatment at all. The Board readily acknowledges that the condition, however intermittent, produces observable symptoms requiring treatment. The applicable criteria for the maximum 60 percent rating under Diagnostic Code 7806 still are not met, and so the claim for increase greater than 30 percent must be denied. Compensable Evaluation for Hearing Loss Hearing loss is evaluated by mechanical application of the rating schedule to measured hearing acuity. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations range from 0 percent to 100 percent based on hearing thresholds on puretone audiometry at 1,000, 2,000, 3,000 and 4,000 Hertz, and this combined with results of controlled speech discrimination tests. Essentially there are 11 distinct levels of hearing loss, from Level I for near normal, through Level XI for profound deafness. The Level designation is determined by combining puretone audiometry results with controlled speech discrimination scores based on a rating table, found at Table VI. Then the Level designation for each ear is combined under Table VII, and this provides the percentage rating for hearing loss. There have been several VA audiological examinations. On examination in October 2006 with audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 5 35 75 LEFT 15 20 70 90 The average of the pure-tone thresholds of the right ear was 31 decibels; the average of the left was 49 decibels. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear. October 2008 re-examination indicated pure tone thresholds of: HERTZ 1000 2000 3000 4000 RIGHT 15 5 10 35 LEFT 5 5 10 60 The average of the pure-tone thresholds of the right ear was 30 decibels; the average of the left was 38 decibels. Speech audiometry revealed speech recognition ability f 88 percent in the right ear and of 72 percent in the left ear. According to the examiner, the veteran experienced difficulty in understanding the spoken voice when in a noisy environment. November 2011 re-examination indicated pure tone thresholds of: HERTZ 1000 2000 3000 4000 RIGHT 20 25 50 85 LEFT 30 30 65 85 The average of the pure-tone thresholds of the right ear was 45 decibels; the average of the left was 52 decibels. Speech audiometry revealed speech recognition ability of 84 percent in both ears. There was impact on ordinary conditions of daily life including ability to work, in that the Veteran reported he must turn up the television and radio, and in general had a difficult time understanding speech. March 2014 re-examination indicated pure tone thresholds of: HERTZ 1000 2000 3000 4000 RIGHT 15 20 55 80 LEFT 20 20 70 95 The average of the pure-tone thresholds of the right ear was 43 decibels; the average of the left was 51 decibels. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 88 percent in the left. There was impact on ordinary conditions of daily life including ability to work, in that the Veteran reported he had to frequently turn up volume on the television, and he retired early from his security guard job position in part because he could not hear relatively quiet levels of noise anymore. The Board finds that a compensable rating for bilateral hearing loss is not supported based on the evidence, applying the audiometric findings in view of rating criteria. The Board focuses on the audiometric findings most pronounced in severity, those of the November 2011 VA examination. Here, the Veteran had an average of the pure-tone thresholds of the right ear of 45 decibels, average for the left ear was 52 decibels, and speech audiometry revealed speech recognition ability of 84 percent in both ears. These findings correspond to Level II hearing loss in both right and left ears, under Table VI. (There also is not an exceptional pattern of hearing impairment present as defined in 38 C.F.R. § 4.86 such that the Table VIa applies, in which case the Level designations would be calculated based entirely of puretone threshold averages and not accounting for speech discrimination scores.) Taken together when combining the two Level II designations under Table VII, a noncompensable (0 percent) rating still applies. The Board recognizes the Veteran's complaints of loss of hearing in daily situations involves genuine functional limitation, but VA disability rating of hearing loss must follow the numerical standards in the rating schedule. See Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007) (determining that the procedure of audiometric testing in a sound-controlled room, contrary to the claimant's assertions, was sufficient for rating purposes). Measured hearing acuity shows significant retained capacity, and a compensable rating must be denied. ORDER A 50 percent evaluation for PTSD, effective March 6, 2014, is granted, subject to applicable on VA compensation. A rating higher than 30 percent for PTSD, for the period prior to March 6, 2014 is denied. An evaluation in excess of 30 percent for dyshidrotic eczema of the hands is denied. A compensable evaluation for bilateral hearing loss is denied. REMAND The Veteran competently describes severe joint stress throughout the bilateral lower extremities when he had to complete a jump from more than 20 feet high from a helicopter while in Vietnam. The event is accepted to have occurred based on having been sustained in combat service. 38 U.S.C.A. § 1154(b). Further, several witnesses confirm the event. The Veteran's injury has not yet been linked to present day joint conditions of the lower extremities (including ankle, hip and foot) and VA Compensation and Pension examination is needed on this subject. Before examination occurs, however, the referred claim for entitlement to service connection for atherosclerotic heart disease including due to Agent Orange exposure, should be adjudicated in the first instance by the AOJ. Much of the current bilateral lower extremity disabilities involve vascular complications claimed as secondary to atherosclerotic heart disease. Adjudicating the heart disease claim first expedites resolving in full the lower extremity claims. While this case is on remand, the Veteran should be prompted to identify any further relevant records of private treatment since service. The TDIU is inextricably intertwined with claims on appeal for service connection for lower extremity disability, as its disposition is impacted by outcome of that matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). VA general examination should be conducted in the meantime to ascertain capacity for gainful employment, this as due to service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient treatment records and associate these with the Veterans Benefits Management System (VBMS) electronic case file. 2. Contact the Veteran and request medical authorization for any additional treatment records for conditions of the bilateral lower extremities (the claimed disorders of ankles, hip, feet and legs), including as relevant records from Drs. Leguizamon and Kuba. Then obtain additional records based on the information provided. If treatment records are not immediately available, then take additional steps in furtherance of records development as directed in 38 C.F.R. § 3.159(e). 3. The AOJ should then adjudicate in the first instance the claim for entitlement to service connection for atherosclerotic heart disease, taking all necessary evidentiary development in the process. 4. Then schedule the Veteran for a VA examination of the bilateral hip, legs, ankles, and feet. The VBMS claims folder must be provided to and reviewed by the examiner in conjunction with the examination and such review should be noted in the examination report. All indicated tests and studies should be performed. The examiner should provide a diagnosis of all current disabilities of the bilateral lower extremities that the Veteran presently has, with regard to claimed disorders of ankles, hip, feet and legs. Then for all diagnosed conditions, the examiner should opine whether the diagnosed condition at least as likely as not (50 percent or greater probability) was incurred in service when the Veteran completed a more than 20 foot jump from a helicopter in Vietnam, or is otherwise causally related to service. The examiner should also opine whether any of the diagnosed conditions of the bilateral lower extremities were caused or chronically aggravated by heart disease. A complete rationale should be provided for the opinions offered. 5. Schedule the Veteran for a general medical examination for purpose of his TDIU claim. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination and such review should be noted in the examination report. The examiner is then requested to provide an opinion as to whether the Veteran is capable of securing and maintaining substantially gainful employment due to the severity of his service-connected disabilities. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition(s). The requested opinion must also take into consideration the relevant employment history and educational history of the Veteran. A complete rationale should be provided for the opinions offered. 6. Review the claims file. If any of the directives of this remand have not been implemented, take corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 7. Readjudicate the claims on appeal based upon all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond before the file is returned to the Board. 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). These claims 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 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs