Citation Nr: 1754428	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-29 600	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for a skin disorder of the stomach and legs, claimed as rash of the stomach and legs.

3.  Entitlement to service connection for disability from shrapnel wound of the face.

4.  Entitlement to an initial rating in excess of 10 percent for residuals of traumatic brain injury (TBI).


REPRESENTATION

Appellant represented by:	Christopher L. Loiacono, Agent



ATTORNEY FOR THE BOARD

A. Barner, Counsel


INTRODUCTION

The Veteran had active duty service in the United States Army from September 2004 to July 2010.  He is in receipt of a Purple Heart medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction is with the RO in Roanoke, Virginia.
 
In October 2016 the Veteran withdrew his request for a Board hearing, and he has not since requested another hearing.  As such, his hearing request is withdrawn.  38 C.F.R. § 20.704 (2017).   

The issues of entitlement to service connection for a skin disorder of the stomach and legs, claimed as rash of the stomach and legs, and for entitlement to an initial rating in excess of 10 percent for residuals of TBI are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  There is no competent evidence of a bilateral hearing loss disability for VA purposes.

2.  There is not a current disability from shrapnel wound to the face.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for a disability from shrapnel wound to the face have not been met.  38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection 

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Some disabilities may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from active duty, to include organic disease of the nervous system such as sensorineural hearing loss.  38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of 38 C.F.R. § 3.303(a) for establishing service connection for certain chronic diseases."). 

When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

Bilateral Hearing Loss

The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability.  This claim turns on whether there is a bilateral hearing loss disability according to VA standards.  

For the 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. 

Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The evidence is clear that there is no current bilateral hearing loss disability as that term is defined in 38 C.F.R. § 3.385.  VA examinations in June 2010 and March 2015 included audiograms that revealed pure tone thresholds and Maryland CNC scores which failed to meet the standard to establish a bilateral hearing loss disability.  

Specifically, the June 2010 audiogram showed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
15
15
LEFT
15
15
10
10
15

Most recently, the March 2015 audiogram showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
10
10
LEFT
5
5
5
15
20

At both examinations, the Maryland CNC testing revealed speech discrimination scores of 100 percent, each, for the right and the left ears.

The Board must deny service connection because there is no evidence of a current bilateral hearing loss disability as that term is defined by VA regulations.  See 38 C.F.R. § 3.385; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.").

As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability, the benefit-of-the-doubt doctrine is not helpful to the Veteran.  38 U.S.C. § 5107(b).  As such, the claim must be denied.


Shrapnel wound of the Face

The Veteran claims entitlement to service connection for disability from shrapnel wound of the face.  

May 2008 service treatment records show that the Veteran was treated following a body bomb event, in which in pertinent part he suffered a blow to the left orbit, but no loss of consciousness.  There was bruising under the left orbit and a possible fragmentation injury.  Shrapnel wound of the face was assessed.  Another note indicated that there were small, non-bleeding wounds to the left cheek, which were clean, dry, and without evidence of infection.  No fractures were evident on imaging.

In a June 2010 examination for the VA, the Veteran reported that he had been diagnosed as having shrapnel injury to the face in 2008, occurring from an improvised explosive device.  He reported that he did not experience related pain, and had never had a related bone condition.  The Veteran reported that his in-service facial injury did not require hospitalization or surgery, but was treated with antibiotics.  He denied experiencing any overall functional impairment from this condition.  Facial X-ray was within normal limits.  The examiner indicated that the diagnosis was status-post facial injury, with a normal X-ray and no visible scar.

In a March 2015 VA examination for the skin, the examiner indicated that the only retained shrapnel was in the Veteran's left lateral forearm.  The examiner indicated that there was no scarring of the head, face or neck.  The examiner indicated that for the claimed condition of shrapnel into the face, no pathology could be found on examination to support a diagnosis.  The Veteran denied any shrapnel in his face, and there was no visible shrapnel or scars noted on the face.  

The Board must deny service connection because there is no evidence of a current disability of shrapnel wound into the face.  Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.").

As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for disability from shrapnel wound of the face, the benefit-of-the-doubt doctrine is not helpful to the Veteran.  38 U.S.C. § 5107(b).  As such, the claim must be denied.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for disability from shrapnel wound of the face is denied.


REMAND

Skin Rash of stomach and bilateral legs

The Veteran contends that he is entitled to service connection for a skin rash of his stomach and legs.  Service treatment records show that he was seen in 2008 for a skin rash to his stomach and extremities, which included pruritus and multiple erythematous papules 

He was afforded a March 2015 VA examination for his skin, in which he described a 2008 incident during service in which he was exposed to fumes from a homemade explosive, and developed a rash from his neck to just above his knees.  He reported that he was diagnosed as having contact dermatitis, and treated with Calamine lotion, Benadryl, Cortisone cream and a steroid injection, which cleared the rash.  The Veteran reported that he currently experienced an itchy, blotchy rash every time that he showered, which resolved on drying off.  He also reported experiencing an itchy rash on his knees and upper arms, consisting of raised blotches, a couple of times monthly.  The Veteran did not have any benign or malignant skin neoplasms, or systemic manifestations due to any skin diseases.  The Veteran had been treated with antihistamines for his skin condition, specifically Benadryl, for less than 6 weeks in the previous year.  He had not had any treatments or procedures other than systemic or topical medications in the previous year for exfoliative dermatitis or papulosquamous disorders.  The Veteran did not have urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis.  There was not a visible rash on the Veteran's stomach or legs.  For the claimed condition of skin rash to the stomach and legs, the examiner found that there was no pathology evident on examination to support a diagnosis.  The Veteran's skin was clear, and no rash was noted at that time.  

The Board notes that the asserted disability is of the nature that is subject to periodic flare-ups and periods of waxing and waning.  As such, an effort should be made, to the extent possible, to schedule the Veteran for examination during an active period of his asserted disability so as to determine the nature and etiology of any skin disorder.  See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (when a claimant's medical history indicates that a Veteran's condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence); Voerth v. West, 13 Vet. App. (1999) (feasibility of scheduling an examination during an exacerbation is a factor in determining whether VA has a duty to provide such an examination).

As such, the Board finds that the Veteran should be provided with another VA examination to determine the likely nature and etiology of his claimed skin disorder of the stomach and legs, to the extent possible, during an active phase of the condition.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).


Entitlement to an initial rating in excess of 10 percent for residuals of TBI

The report of March 2015 VA examination which addressed the Veteran's TBI residuals indicates that it was conducted by a VA nurse-practitioner.  Memory deficits were mild, and there were subjective symptoms of mild headaches and mild anxiety.  No neuropsychological testing, diagnostic imaging, laboratory testing, or other diagnostic procedures were performed.

Notably, the record includes a July 2016, VA notification letter indicating that VA had conducted a special review of TBI examinations completed between 2007 and 2015 in support of disability compensation claims for TBI.  This review revealed a number of initial TBI examinations that were not conducted by a neurologist, psychiatrist, physiatrist, or neurosurgeon.  The Veteran was informed that he was receiving the letter because his initial TBI examination was not performed by one of these specialists, and the Veteran was offered the option to undergo a new TBI examination by an appropriate specialist.  The letter further informed the Veteran that he was entitled to equitable relief in the form of a new VA examination with a qualified medical professional.  The Veteran has not responded to that letter.

This appeal includes a TBI issue that is covered by the Secretary's grant of equitable relief, and there is an indication that the Veteran's symptoms have worsened since the most recent March 2015 VA examination.  See July 2016, Correspondence (discussing symptoms such as changes in interactions with others and stuttering).  Accordingly, the Board is remanding the issue to the AOJ in order to schedule the Veteran for a new TBI examination.  See 38 U.S.C. § 7107 (f)(2) (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate.)

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination, to the extent possible during a flare-up, to determine the nature and etiology of his asserted skin disorder, claimed as rash of the stomach and legs. 

The examiner must be provided access to the electronic claims folder (ECF) and should review the ECF and indicate such review in his or her report.  All tests and studies deemed necessary by the examiner must be conducted. 

Following examination, the examiner must opine with respect to the nature and etiology of any current skin disorder of the stomach and legs.  Specifically, the examiner should provide a diagnosis if possible, and indicate whether it is at least as likely as not that it had its onset during, or is etiologically related to, the Veteran's service.

The examiner must consider the full record, to include the Veteran's lay statements regarding onset and continuity of symptomatology, to include consideration that skin symptoms may wax and wane over time. 

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.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a rationale for each opinion given.

2.  Schedule the Veteran for a TBI examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon), as well as any other actions felt appropriate by the AOJ in conjunction with the Secretary's grant of equitable relief.

3.  After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated.

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. §§ 5109B, 7112 (2012).





______________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs