Citation Nr: 1800239 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-02 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability, to include whether new and material evidence has been presented to reopen a claim of service connection for a low back disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a rating in excess of 10 percent for a skin disability. 4. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the Veteran died in August 2011. The issues on the title page were on appeal at that time. In March 2012, the Veteran's surviving spouse requested to be substituted as the claimant. The agency of original jurisdiction has recognized her as the substituted appellant. See November 2017 brief. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's low back disability is attributable to his active service. 2. From November 29, 2005, the Veteran's skin disability has required systemic therapy for at least six weeks or more, but not constantly during the previous twelve-month period. 3. The Veteran's bilateral hearing loss is manifested by noncompensable hearing impairment in both ears throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. From November 29, 2005, the criteria for a rating of 30 percent for dermatitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2017). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Low Back Claim By an August 1960 rating decision, the Veteran's claim of service connection for a back disability was denied. Thereafter, nothing further regarding the claim was received until the present claim to reopen in November 2006. No new evidence or notice of disagreement was received by VA within one year of the issuance of the August 1960 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for low back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also April 2007 medical opinion. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contended that his low back disability was the result of repeated parachute jumps during service. The Veteran had a present diagnosis of degenerative disc disease of the lumbar spine. See July 2007 VA examination. Furthermore, the Board concedes that the Veteran underwent numerous parachute jumps while in service. See DD 214; see also, February 2009 statement. Therefore, the sole question is whether the Veteran's back disability had a causal relationship to his parachute jumps. The Veteran submitted a letter from a private physician dated April 2007. The Veteran had been a patient of the doctor for 20 years. The physician opined that the Veteran's back problems were service-related. The physician noted that the Veteran had served as a paratrooper in the military and that the Veteran's back condition was definitely a result of chronic stress on the back due to service-related activities. The Veteran received a VA examination for his back in June 2007. The examiner noted the Veteran had been a paratrooper, and that the Veteran was once involved in an accident during a landing, hitting the ground hard when the parachute failed to open. However, this examiner did not provide an opinion as to the Veteran's back disability. An opinion was obtained in March 2009. The examiner opined that the Veteran's back condition was not at least as likely as not incurred in service as due to his parachuting duties. The rationale provided was the Veteran was 72 years of age and that his degenerative disease was widespread. The Board finds that service connection for a low back disability is warranted. This is so because the evidence is at least in equipoise. While the March 2009 opinion opined that the Veteran's back disability was not incurred in service, that opinion merely provided as a rationale the Veteran's age. No further explanation or discussion of the significance of the Veteran's age in relation to the Veteran's back disability was elaborated upon. This opinion is at least as probative as the private opinion the Veteran submitted, which stated that his back disability was "definitely a result of chronic stress" from his parachute jumps during service. With the evidence evenly balanced, the benefit of the doubt is resolved in favor of the Veteran and service connection for a low back disability is warranted. See 38 C.F.R. § 3.102. II. Increased Rating Claims General Legal Criteria for Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Dermatitis Increased Rating The Veteran was rated for his dermatitis under 38 C.F.R. § 4.118, Diagnostic Code 7806. Pursuant to Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. Analysis The Veteran contended his dermatitis warranted an increased rating. VA received the claim for an increase in this condition on November 29, 2006; the present appeal period begins on this date, plus the one-year look-back period prior to the filing of this claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). He received a VA examination for his skin condition in July 2007. The examiner noted that the Veteran treated his skin condition with "Hydrocortisone/Pramoxine 1% Lotion QID, Triamcinolone, 0.1%, BID, Desonide Absorbase, Aveeno Soap BID, and Atarax (by mouth) systemic, as needed for itching." The examiner then highlighted that the treatment would last at least a "couple of months at a time," the examiner also noted that in the past twelve months, the Veteran had been on the aforementioned treatment and was on it at the time of the examination. The Board finds that a 30 percent rating is warranted from November 29, 2005. This is so because the VA examiner noted that the Atarax medication the Veteran had been taking orally was a "systemic" medication and that it was taken for a couple months at a time, which is a duration of more than six weeks as is required for a 30 percent rating. This rating is warranted from November 29, 2005, because this encompasses the one year look-back period from the date VA received the Veteran's claim. That period is warranted because the VA examiner highlighted that at the time of the examination the Veteran had been taking the treatment for the past 12 months, but also that the Veteran's condition was chronic. Therefore, a rating of 30 percent is warranted back to November 29, 2005. A rating of 60 percent is not warranted, however. This is so because the Veteran's systemic therapy was not "constant or near-constant." The VA examiner noted that the treatment was lasted only a couple months at a time. Therefore, a 30 percent rating, but not higher, is warranted from November 29, 2005. Bilateral Hearing Loss Increased Rating The Veteran contended his bilateral hearing loss warranted a higher rating. VA received the claim for an increase in this condition on November 29, 2006; the present appeal period begins on this date, plus the one-year look-back period prior to the filing of this claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran was rated for his bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. Id. There are also exceptional patters of hearing impairment. See 38 C.F.R. § 4.86. Analysis An April 2006 audiologic evaluation is of record. This VA audiologic evaluation showed pure tone thresholds of air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 55 65 LEFT 25 40 55 55 65 Average pure tone thresholds were 53 decibels for the right ear and 54 decibels for the left ear. The examiner noted that speech recognition score in the right ear was 92 percent for the right ear and 88 percent for the left ear. Using these values, the results of the April 2006 examination utilizing Table VI of 38 C.F.R. § 4.85 yields level I hearing in the right ear and level II hearing in the left ear. When combined, level I and level II hearing yields a noncompensable evaluation. The Veteran received a VA examination for his hearing loss in June 2007. This VA audiologic evaluation showed pure tone thresholds of air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 55 60 LEFT 15 35 50 50 60 Average pure tone thresholds were 50 decibels for the right ear and 48 decibels for the left ear. The examiner noted that speech recognition score in the right ear was 80 percent for the right ear and 88 percent for the left ear. Using these values, the results of the April 2006 examination utilizing Table VI of 38 C.F.R. § 4.85 yields level IV hearing in the right ear and level II hearing in the left ear. When combined, level IV and level II hearing yields a noncompensable evaluation. A July 2008 audiologic evaluation is of record. This VA audiologic evaluation showed pure tone thresholds of air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 50 55 60 LEFT 20 40 50 50 55 Average pure tone thresholds were 50 decibels for the right ear and 49 decibels for the left ear. The examiner noted that speech recognition score in the right ear was 76 percent for the right ear and 84 percent for the left ear. Using these values, the results of the April 2006 examination utilizing Table VI of 38 C.F.R. § 4.85 yields level IV hearing in the right ear and level II hearing in the left ear. When combined, level IV and level II hearing yields a noncompensable evaluation. A January 2010 audiologic evaluation is of record. This VA audiologic evaluation showed pure tone thresholds of air conduction, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 60 60 70 LEFT 35 45 55 55 65 Average pure tone thresholds were 59 decibels for the right ear and 55 decibels for the left ear. The examiner noted that speech recognition score in the right ear was 92 percent for the right ear and 80 percent for the left ear. Using these values, the results of the April 2006 examination utilizing Table VI of 38 C.F.R. § 4.85 yields level II hearing in the right ear and level IV hearing in the left ear. When combined, level II and level IV hearing yields a noncompensable evaluation. A buddy statement dated April 2007 has been submitted. The statement related that the Veteran had to exercise extra effort in order to communicate with others, and it was difficult for the Veteran to hear when in a setting where there were many people talking. The Veteran also had trouble watching television and would need to turn the volume to maximum. A buddy statement dated March 2006 also highlighted that the Veteran had trouble hearing. Nonetheless, the rating criteria contemplate the functional effects of decreased hearing and difficulty understanding speech, and these effects are what VA's audiometric tests are designed to measure. Thus, when a Veteran's hearing loss results in an inability to hear or understand speech or hear other sounds in various contexts, such as here, these effects are contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Entitlement to a compensable rating for bilateral hearing loss is not warranted. Each of the audiometric hearing evaluations performed during the appeal period yielded a noncompensable rating under 38 C.F.R. § 4.85. Throughout the appeal period, the Veteran's hearing loss has not warranted a compensable rating at any time. Thus, the preponderance of the evidence is against the claim for a compensable rating, and a compensable rating for bilateral hearing loss is not warranted. ORDER Service connection for a low back disability is granted. From November 29, 2005, a 30 percent rating for dermatitis is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a compensable rating for bilateral hearing loss is denied. REMAND PTSD Claim The Veteran sought service connection for PTSD in November 2006. Establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board notes that the Veteran received a diagnosis of PTSD in his June 2001 VA examination. With regard to the second element, the Veteran had advanced two stressors. The first was an incident in November 1953 where the Veteran was performing a parachute jump with a comrade, wherein his comrade's chute failed to deploy and the Veteran ended up having to rescue the individual. See April 2007 buddy statement. Another stressor incident occurred in 1954 where a plane lost an engine during a parachute jump, and some of the Veteran's comrades were caught in the engines of the plane and died. Id. An attempt was made to verify the stressor that involved the Veteran saving a comrade, but a September 2009 VA memorandum reflected a formal finding of a lack of information required to corroborate that particular stressor. However, the record does not reflect an attempt was made to verify the Veteran's other described stressor. In a February 2007 statement, the Veteran described that in 1954 there was a Divisional review for President Dwight Eisenhower. One of the planes flying in formation had to break that formation, and it struck some of the other troops that had already jumped. On remand, the RO should follow the appropriate procedure to attempt to verify this stressor, including searching multiple 60-day periods. See Gagne v. McDonald, 27 Vet. App. 397, 403 (2015). Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's stressor involving the Divisional review before President Eisenhower in 1954. The Veteran is deceased so the RO should refer to statements already of record. 2. Thereafter, an addendum opinion should be obtained. The examiner should offer an opinion as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the PTSD diagnosed in the June 2007 VA examination is related to or had its onset during the Veteran's military service. 2. Finally, readjudicate the issue remaining on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs