Citation Nr: 1756658	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-20 777	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a skin disability to include basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis.  

2.  Entitlement to service connection for skin rashes, to include seborrheic keratosis and follicular dermatitis, as due to herbicide exposure.  

3.  Entitlement to an initial compensable rating for service-connected bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, S.J., and L.P.

ATTORNEY FOR THE BOARD

C.  Biggins, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1965 to August 1967.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO).

In August 2011, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board.  A transcript of the hearing is of record.  A May 2016 letter informed the Veteran that the VLJ who had held the hearing had left the Board and provided the Veteran the opportunity to have another hearing before a different VLJ.  The Veteran responded in June 2016 indicating that he wished to appear at another Board hearing.  Thus, the Veteran was provided with a September 2016 videoconference hearing before the undersigned VLJ.  A transcript of the hearing is of record.  

This appeal was previously before the Board in January 2017.  The appeal was remanded for additional development.  As discussed below, the requested development as to the Veteran's claim for entitlement to service connection for a skin disability and increased rating for his service-connected bilateral hearing loss was substantially complied with and thus, those claims are ready for appellate review.  Specifically, the Board remand requested that the RO contact the Veteran to obtain the names and address of all of his private treatment providers.  In response the Veteran was provided with a February 2017 letter requesting that he provide the names and addresses of all of his treatment providers and a VA Form 21-4142a General Release for Medical Provider Information was enclosed with the letter.  The Veteran did not provide the names of any additional treatment providers.  As such, the Board finds this remand instruction was complied with.  However, the development as to the Veteran's claim for entitlement to service connection for a skin rash has not been substantially complied with and thus that claim is not ready for appellate review.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The issue of entitlement to service connection for a skin rash disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for a skin disability has been met.

2.  For the period on appeal, the Veteran's bilateral hearing loss disability was manifested by no worse than Level II hearing impairment bilaterally.


CONCLUSIONS OF LAW

1.  Service connection for a skin disability, to include basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis, is warranted.  38 U.S.C. § § 1110, 1131, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

2.  The criteria for the assignment of a compensable disability rating for a service-connected bilateral hearing loss disability are not met.  38 U.S.C. § § 1155, 5107 (West 2014); 38 C.F.R. § § 3.102, 4.85, 4.86, Diagnostic Code (Code) 6100 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Skin Disability 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

The Veteran contends that his current skin disabilities to include basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis are etiologically related to his active service to include herbicide exposure.  The question for the Board is whether the Veteran's current basal cell carcinoma, squamous cell carcinoma, lentigo and actinic keratosis are etiologically related to his active service.  

The Board finds that competent, credible, and probative evidence establishes that Veteran's current basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis are etiologically related to the Veteran's active service.

The Veteran's claim for entitlement to service connection for a skin disability was most recently before the Board in January 2017 at which time it was remanded in order to obtain an addendum opinion. 

In response to the January 2017 Board remand an April 2017 VA examination and opinion was obtained.  The examiner noted diagnoses of tumors and neoplasms of the skin including malignant melanoma and basal cell carcinoma diagnosed in 2004.  The examiner also noted actinic keratosis diagnosed in approximately 1970.  The examiner concluded the Veteran's lentigo, actinic keratosis, basal cell carcinoma, and squamous cell carcinoma are related to the Veteran's total sun exposure during his lifetime.  The examiner noted the Veteran's sun exposure during his active service in Vietnam added to his life time exposure to the sun.  The examiner indicated the Veteran's skin problems are not related to a specific incident during the Veteran's active service but are instead related to his cumulative sun exposure.  

The Board finds the Veteran's basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis, are etiologically related to the Veteran's active service.  The Veteran has current basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis.  See June 2012 private treatment record, April 2017 VA examination, and July 2017 private treatment record.  The April 2017 VA examiner found that the Veteran's sun exposure during his active service contributed to his current basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis.  As the Veteran's active service need only be a contributing cause to a current disability to warrant service connection, the Board finds the Veteran's active service contributed to his current basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis.  As such, service connection for a skin disability to include basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis is warranted.  

II.  Bilateral Hearing Loss

Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability.  They are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate codes identify the various disabilities and the criteria for specific ratings. 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.3.  The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14. 

Where service-connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, the Board will assign staged ratings for separate periods of time.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's bilateral hearing loss has been evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100.  This code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Ratings for bilateral defective hearing range from 0 percent to 100 percent.  The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85.

The rating criteria include an alternate method of rating exceptional patterns of hearing; when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86. 

Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation, I through XI, for hearing impairment based only on the puretone threshold average.  38 C.F.R. § 4.85 (c).  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86.

The Veteran is seeking an initial compensable evaluation for his service-connected bilateral hearing loss.      

During the course of the appeal the Veteran has been provided with treatment for his bilateral hearing loss and several audiological evaluations.  The Veteran's claims file contains VA audiological examinations and a private audiological examination as part of his treatment for bilateral hearing loss and hearing aid use.  See March 2009 VA treatment record, August 2009 private treatment record, and January 2015 VA treatment record.  As these examinations did not include speech recognition scores using the Maryland CNC test as required by 38 C.F.R. § 4.85 these audiological examinations are not adequate for rating purposes and therefore will not be considered by the Board.  

During the course of the appeal the Veteran was provided with several VA examinations.  The Veteran was provided with an initial June 2009 VA examination.  On the authorized VA audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
35
75
85
LEFT
10
5
35
65
70

The average of the pure-tone thresholds of the right ear was 50 decibels; the average of the left was 44 decibels.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear.  38 C.F.R. § 4.85, Table VI provides for the assignment of Roman numeral I in the right ear and I in the left ear.  Table VII of 38 C.F.R. § 4.85 provides for the assignment of a noncompensable evaluation for this numeric score.  

The Veteran was provided with a December 2013 VA examination.  The examiner concluded the Veteran's hearing loss disability did not impact the ordinary conditions of his daily life to include working.  On the authorized VA audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
40
80
95
LEFT
5
5
45
60
70

The average of the pure-tone thresholds of the right ear was 55 decibels; the average of the left was 45 decibels.  Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  38 C.F.R. § 4.85, Table VI provides for the assignment of Roman numeral I in the right ear and I in the left ear.  Table VII of 38 C.F.R. § 4.85 provides for the assignment of a noncompensable evaluation for this numeric score.  

Most recently, and in response to the Board's January 2017 remand, the Veteran was provided with a May 2017 VA examination.  On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
45
85
95
LEFT
5
10
50
65
70

The average of the pure-tone thresholds of the right ear was 59 decibels; the average of the left was 49 decibels.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 in the left ear.  38 C.F.R. § 4.85, Table VI provides for the assignment of Roman numeral II in the right ear and II in the left ear.  Table VII of 38 C.F.R. § 4.85 provides for the assignment of a noncompensable evaluation for this numeric score.  

In addition the Veteran has provided lay statements regarding the current symptomatology of his bilateral hearing loss.  The Veteran testified at his August 2011 hearing that his audiogram results for his June 2009 VA examination were inaccurate because he could not actually hear what words the examiner said but was instead guessing what the words were.  The Veteran reported he is retired but works on his farm and that his hearing does not cause any functional impact during those tasks because he works alone.  The Veteran did note that he could not hear the warning noises from the farm equipment but that the equipment would auto shut off if there was an issue.  The Veteran indicated that he could hear high pitched noises such as a fire alarm but that he had to turn up the TV volume in order to hear.  The Veteran also reported difficulty hearing his grandkids and an inability to hear people honk at him while driving.  The Veteran was provided with a September 2016 Board hearing at which time he testified that he could not hear in crowds unless someone was talking directly to him and that he had difficulty hearing his wife and grandchildren.  The Veteran reported that he could work without his hearing aid but that he could not work in a crowd of people because it was too difficult to hear.  

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  The June 2009 examiner noted the functional impact of the Veteran's hearing loss was that the Veteran had difficulties hearing and understanding speech.  The May 2017 examiner noted the Veteran's hearing loss caused the functional impact of having difficulty understanding his wife if other noise is present.  The Board finds these findings are sufficient to comply with the applicable VA policies.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Board finds that the functional effects of the Veteran's bilateral hearing loss disability are adequately addressed by the record.

The Board finds that for the period on appeal, the Veteran's service-connected bilateral hearing loss disability did not meet the criteria for a compensable disability rating.  The Veteran has not submitted any evidence that would show entitlement to a higher disability rating for this period. 

All of the audiological examinations adequate for prating purposes performed throughout the period of consideration, using 38 C.F.R. § 4.85, Table VII, yield the assignment of a noncompensable evaluation.  Specifically, the Veteran's May 2017 audiological examination shows the Veteran's hearing loss at its most severe.  However, it is still rated as noncompensable under Table VII of 38 C.F.R. § 4.85.

Lay persons are competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing).  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  To this extent, the Board finds that the Veteran is competent to report that he has current hearing loss; however, the Board finds that the objective audiometric testing is more probative than the lay statements as to the extent of the Veteran's hearing loss in puretone thresholds in decibels.

The Board acknowledges the Veteran's testimony at his August 2011 Board hearing questioning the adequacy of his June 2009 VA audiological examination.  However, even if the Board were to disregard the June 2009 VA examination the remainder of the evidence in the Veteran's claims file does not warrant an initial compensable rating.  

The audiometric examination results, as compared to the rating criteria, do not warrant a compensable disability rating for service-connected bilateral hearing loss.  Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's increased rating claim.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, the benefit of the doubt doctrine need not be applied. 

ORDER

Entitlement to service connection for a skin disability to include basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis is granted.  

Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied.  


REMAND

The Veteran's claim for service connection for a skin disability was most recently before the Board in January 2017 at which time it was remanded in order to obtain a VA opinion as to whether the Veteran's current conditions of basal cell carcinoma, squamous cell carcinoma, lentigo and actinic keratosis, incidental warty dyskeratoma, and dermatitis are etiologically related to his active service to include herbicide exposure.  

In response to the January 2017 Board remand an April 2017 VA examination and September 2017 addendum opinion were obtained.  As noted above the April 2017 VA examiner found the Veteran's basal cell carcinoma, squamous cell carcinoma, lentigo, and actinic keratosis related to his lifetime sun exposure and as such the Board granted service connection.  

As to the Veteran's other skin conditions the April 2017 VA examiner noted that warty dyskeratoma is "a rare but benign growth related to the very common seborrheic keratosis but interesting only because of the unusual picture under the microscope."  The examiner also noted that serious herbicide exposure would show damage to the Veteran's liver or blood but that the Veteran's skin was clear.  

The Board finds the April 2017 VA examiner's opinion as to the Veteran's warty dyskeratoma to be inadequate.  The examiner noted the Veteran's warty dyskeratoma was a growth from seborrheic keratosis but failed to provide a rationale as to whether the Veteran's seborrheic keratosis was etiologically related to his active service.  Moreover, the examiner seemingly based her opinion that the Veteran was not exposed to serious levels of herbicide on the fact that the Veteran's skin was clear which is contradicted by the April 2017 examination in which the examiner noted the Veteran frequently presents with lesions as a result of his actinic keratosis. 

In addition a September 2017 addendum VA opinion was obtained.  The examiner noted that the Veteran's diagnosis of follicular dermatitis was separate from his service-connected eczema.  The opinion provider concluded that there was no documentation to support that the follicular dermatitis developed during the Veteran's active service and that his dermatitis had a clear and specific etiology and therefore could not be attributed to herbicide exposure. 

The Board also finds the September 2017 addendum opinion to be inadequate.  The opinion provider failed to provide an adequate rationale for her conclusion.  The opinion provider indicated that the Veteran's dermatitis had a clear and specific etiology and therefore could not be etiologically related to herbicide exposure but failed to indicate what that etiology was.  As such, an addendum opinion must be obtained on remand.  

In addition, it appears the Veteran continues to receive VA treatment.  As such any and all outstanding VA treatment records must be obtained on remand.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records.

2.  After completion of the foregoing, contact the VA examiner who examined the Veteran in April 2017 in connection with his claim for service-connection for skin rashes or the September 2017 addendum opinion provider and request an addendum opinion.  The claims file should be made available to and reviewed by the examiner and all appropriate tests should be conducted.

Based on the examination and review of the record, the examiner should address whether it is at least as likely as not (50 percent or higher degree of probability) that any of the Veteran's diagnosed skin rash disabilities (other than of the feet) to include seborrheic keratosis and follicular dermatitis are etiologically related to his active service, to include herbicide exposure.   

If the April 2017 VA examiner or September 2017 addendum opinion provider are unavailable, another qualified examiner should be requested to provide the same opinions.  If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled.  All indicated tests and studies should be undertaken.  

The examiner should provide a thorough rationale for the opinions expressed. 

3.  After completing the above and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefits sought on appeal are not granted, he and his representative should be provided with a supplemental statement of the case.  Allow the appropriate time for response then return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter 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 (West 2014).



______________________________________________
M.E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs