Citation Nr: 1800009 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-21 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disability, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma, and if so, whether service connection is warranted. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated at 50 percent disabling, to include the issue of entitlement to a compensable rating prior to April 23, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1966 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Evidence of record suggests that the Veteran has been diagnosed with various types of skin disabilities; therefore, the Board will broadly construe the claim for service connection for dermatitis as a claim for service connection for a skin disability more generally. Clemons v. Shinseki, 23 Vet. App. 1 (2009). While on appeal in January 2015, the RO increased the assigned rating for bilateral hearing loss to 50 percent, effective April 23, 2014, the date on which an audiogram was conducted. However, as this was not a full grant of the benefit sought on appeal, the issue remands before the Board. See Ab v. Brown, 6 Vet. App. 35, 38 (1993). In January 2017, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Additionally, the Board observes that the Veteran's claim for a total disability based on individual unemployability (TDIU) was separately adjudicated, and denied, in a September 2017 rating decision. As the Veteran has not indicated disagreement with that decision, the Board will not take jurisdiction of the TDIU claim at this time. Finally, the issue of entitlement to service connection for a skin 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. An unappealed August 2006 rating decision denied service connection for a skin disability and asthma. 2. Evidence received since the August 2006 rating decision includes a VA examination, additional VA and private medical treatment records, as well as the Veteran's lay statements. 3. The evidence pertaining to the Veteran's skin disability submitted subsequent to the August 2006 rating decision was not previously submitted and relates to an unestablished fact necessary to substantiate the claim, and raises a reasonably possibility of substantiating the claim. 4. The evidence pertaining to the Veteran's asthma submitted subsequent to the August 2006 rating decision was not previously submitted, however, these records do not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 5. For the period prior to April 23, 2014, the Veteran had, at worst, Level II hearing in the right ear and Level I hearing in the left ear. 6. For the period following April 23, 2014, the Veteran had, at worst, Level IX hearing in the right ear and Level VIII hearing in the left ear. CONCLUSION OF LAW 1. The RO's August 2006 rating decision that denied service connection for a skin disability and asthma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for a skin disability has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence sufficient to reopen the claim of service connection for asthma has not been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for a compensable rating prior to April 23, 2014, and a rating in excess of 50 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence The Veteran seeks to reopen his previously denied claims for service connection for a skin disability and asthma. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992 The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An August 2006 rating decision denied the Veteran's claims of entitlement to service connection for a skin disability and asthma on the basis that neither occurred in nor were caused by service. The Veteran did not appeal that decision or submit new and material evidence within one year; accordingly, the August 2006 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. a. Skin Disability In March 2011, the Veteran filed a claim to reopen his previously denied claim for service connection for a skin disability. The Veteran claimed that his skin disability was caused by his exposure to Agent Orange while he was stationed in the Republic of Vietnam. The evidence associated with the claims file at the time of the August 2006 rating decision consisted of the Veteran's service treatment records (STRs). The Veteran's January 1966 enlistment examination and October 1987 separation examination noted normal skin conditions. However, a September 1980 notation in the Veteran's STRs noted that the Veteran presented with a rash over his arms and neck. It was noted that the rash was red and resembled small blisters and that the Veteran had been to the sick unit twice before for this issue. The physician opined possible allergic dermatitis. The pertinent evidence received subsequent to the August 2006 rating decision includes a February 2013 VA examination report. The VA examiner noted that the Veteran reported having a rash twice a year since leaving service in 1987. Also of record are VA and private treatment records reflecting the Veteran presenting with symptoms of a skin disability, and being treated for skin disabilities, as early as a few year after separation from service. Additionally, the Veteran's lay statements from his January 2017 Board hearing are of record. During the hearing, the Veteran indicated that his skin disability has worsened since his retirement from service. The Board finds that new and material evidence has been presented to reopen the claim for a skin disability. The February 2013 VA examination report, specifically the Veteran's reports documented therein, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the Veteran's claim, specifically a nexus between the Veteran's current diagnoses and reports of in-service disabilities. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all of the above reasons, the Veteran's claim for entitlement to service connection for a skin disability is reopened. However, for the reasons discussed in the REMAND portion of this decision, further development is needed to evaluate whether there is sufficient evidence to grant the Veteran's claim. b. Asthma The Veteran also filed a claim, in March 2011, to reopen his previously denied claim for service connection for asthma. The Veteran initially claimed that his asthma was caused by his exposure to Agent Orange while he was stationed in the Republic of Vietnam. The evidence associated with the claims file at the time of the August 2006 rating decision consisted of the Veteran's STRs. While the Veteran's VA and private medical treatment records reflect a current diagnosis of asthma, the STRs contained no evidence of asthma or any other respiratory disorder while in service. There was no pertinent evidence submitted after the August 2006 rating decision. There were VA and private medical records submitted that reflect the Veteran's diagnosis of asthma and that he is currently being treated for asthma. However, the earliest indication of a diagnosis of asthma in the records is June 2002. Also of record are the lay statements of the Veteran. During the January 2017 Board hearing, the Veteran claimed that he was exposed to asbestos while on various aircraft carriers in service. The Board finds that new and material evidence has not been presented with respect to the asthma issue. While this evidence is new as it was not previously submitted to the Board, it is not material. The evidence is not material because it does not relate to unestablished facts necessary to establish the claim, specifically an in-service disease or injury and a nexus. While it is presumed that the Veteran is credible in his statements that he was exposed to asbestos while in service, he is not competent to make the determination that any exposure to asbestos would cause him to develop asthma. Accordingly, for these reasons, the Veteran's claim for entitlement to service connection for asthma is not reopened. II. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). However, the United States Court of Appeals for Veterans Claims has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's service-connected bilateral hearing loss is currently assigned a 50 percent disability rating under the provisions of DC 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. The Board notes that service connection is also in effect for tinnitus and assigned a 10 percent disability rating. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). The Veteran's bilateral hearing loss has been service-connected since August 2006, when the Veteran was provided a noncompensable disability rating. In January 2011, he submitted his claim for an increased rating. As previously discussed, in a January 2015 rating decision, the RO granted an increase to a 50 percent disability rating effective April 23, 2014. The Veteran was examined by a VA audiologist in March 2011. During the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 40 65 65 LEFT 20 30 40 50 55 The average puretone thresholds were 50 decibels in the right ear and 43.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in both the right and left ear. These combined numeric designations warrant 0 percent rating under Table VII. 38 C.F.R. § 4.85. The record contains a private audiology evaluation from March 2012 conducted by UC San Diego Medical Center. However, this evaluation appears to have used the Northwestern University Audiology Test No. 6 (NU-6) rather than the Maryland CNC speech discrimination test. Accordingly, this evaluation does not contain all of the information necessary to apply the Rating Schedule criteria VA uses to measure hearing impairment. See 38 C.F.R. § 4.85(a). The Veteran was examined by a VA audiologist in October 2012. During the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 65 75 LEFT 30 35 40 55 70 The average puretone thresholds were 57.5 decibels in the right ear and 50 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both the right and left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. These combined numeric designations warrant 0 percent rating under Table VII. 38 C.F.R. § 4.85. On the audiological evaluation in April 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 60 75 85 LEFT 40 40 50 65 80 The average puretone thresholds were 66 decibels in the right ear and 58.75 decibels in the left ear. Although the Board cannot find the speech discrimination percentages on the April 23, 2014, audiogram that the RO indicated was received on April 23, 2014, and July 17, 2014, it will accept the percentages that the RO reported in the January 2015 rating decision. The RO reported speech recognition ability of 42 percent in the right ear and of 46 in the left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level IX hearing acuity in the right ear and a Level VIII hearing acuity in the left ear. These combined numeric designations warrant 50 percent rating under Table VII. 38 C.F.R. § 4.85. The Veteran was provided another examination by the VA, through MSLA Medical Corporation, in August 2017, which is the most recent evaluation of record. During the audiological evaluation, the puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 65 80 85 100 LEFT 65 65 75 85 100 The average puretone thresholds were 82.5 decibels in the right ear and 81.25 decibels in the left ear. The audiologist determined that the use of the speech discrimination score is not appropriate for this Veteran. She indicated that speech discrimination could not be tested "as the Veteran could not understand at all through the headphones." Utilizing Table VIa listed in 38 C.F.R. § 4.85, the above audiological findings show Level VII hearing acuity in both the right and left ear. These combined numeric designations warrant a 40 percent rating under Table VII. 38 C.F.R. § 4.85. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss has not approximated the criteria for a compensable rating prior to April 23, 2014, and thereafter a rating in excess of 50 percent. In sum, the Board finds that the preponderance of the evidence is against a compensable rating for the period prior to April 23, 2014, and an increased rating for the period thereafter for bilateral hearing loss. ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for a skin disability is granted. New and material evidence having not been received, reopening the claim of entitlement to service connection for asthma is denied. Entitlement to a compensable rating prior to April 23, 2014, and a rating in excess of 50 percent thereafter for hearing loss is denied. REMAND The Veteran contends that he is entitled to service connection for a skin disability. The Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As noted above, to establish direct service connection, there must be sufficient evidence of a current disability; medical or, in certain cases, lay evidence of an in-service disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In terms of a current diagnosed disability, the Veteran's VA and private medical treatment records reflect the Veteran presenting with symptoms such as rash and hives. The record also reflects current diagnoses and treatment for eczema and allergic dermatitis. Additionally, there is evidence of record of an in-service disease or injury. Specifically, the Veteran's STRs reflect a possible diagnosis of allergic dermatitis, and dermatitis/poison oak. In February 2013, the Veteran was afforded an in-person VA examination to evaluate his skin conditions. The VA examiner acknowledged a current diagnosis of dermatitis, although no rash was seen when actually inspecting the Veteran. As to a relationship between the post service diagnosis of dermatitis and service, the examiner offered a conclusion that does not appear to correspond to the rationale provided. The conclusion was the Veteran's dermatitis was not secondary to a service connected disability, but the rationale discussed the absence of a nexus between current disability and service. This should be clarified. At the same time, an opinion can be obtained as to whether any current disability is linked to any herbicide agent exposure the Veteran may have had in service. 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 related to the claim on appeal. 2. The Veteran's file should be referred to the February 2013 VA examiner or other qualified person for an opinion as to whether any current skin disability is related to any in-service disease or injury, including the skin complaints noted in the service treatment records, or any in-service herbicide agent (Agent Orange) exposure as may have occurred. If it is necessary to examine the Veteran to obtain the opinions, that should be arranged. A complete rationale for all opinions should be provided. If the examiner cannot provide the above requested opinions without resorting to speculation, it should be so stated and a rationale provided for that medical conclusion. 3. Thereafter, readjudicate the issues on appeal based on all the evidence of record, and if any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. The Veteran should be provided a reasonable period to respond before the case is returned to the Board for review. The appellant 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 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs