Citation Nr: 18142937 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-10 204 DATE: October 18, 2018 ORDER 1. Entitlement to service connection for a left knee disability, to include left knee patella femoral syndrome, is denied. 2. Entitlement to service connection for a bilateral hearing loss disability is denied. 3. Entitlement to an initial compensable evaluation for seborrheic dermatitis is denied. REMANDED 4. Entitlement to an initial evaluation in excess of 10 percent for traumatic brain injury (TBI) is remanded. 5. Entitlement to an initial compensable evaluation for headaches associated with traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran’s current left knee disability was not incurred in service and is not otherwise related to active duty service. 2. A bilateral hearing loss disability did not have its onset in service, it was not manifested within one year following service discharge, and is not otherwise related to service. 3. The Veteran’s seborrheic dermatitis, at worst, resulted in infections of the skin covering a total body area of less than 5 percent of the entire body or exposed areas, and did not require systemic or topical corticosteroid or other immunosuppressive drugs as treatment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, to include left knee patella femoral syndrome, have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria establishing an initial compensable evaluation for seborrheic dermatitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7806, 7820 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to September 1988. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hearing loss (as an organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee disability, to include left knee patella femoral syndrome. The Veteran contends that service connection for a left knee disability is warranted because it was incurred in service or otherwise a result of service. The Board has carefully reviewed the evidence of record and finds that service connection for a left knee disability is not warranted because the preponderance of the evidence is against a finding that the Veteran has a left knee disability that is related to service, which is explained below. As to evidence of a current disability, the December 2014 VA examiner noted diagnoses of left knee strain and left knee tendonitis. The examiner indicated that the Veteran had intermittent knee pain that was infrequent over the left knee patella ligament and that x-ray imaging of the left knee were negative in the preceding year. The Veteran reported that his knee pain only occurred about three times a year for a few days at a time. Thus, the Veteran meets the first element for service connection. As to evidence of an in-service disease or injury, a review of the Veteran’s service treatment records reflects the Veteran’s complaint of left knee pain in July 1981. Thus, there evidence of left knee pain in service, and thus, the Veteran meets the second element for service connection. As to a nexus between the current disability and service, the Board finds the preponderance of the evidence is against this element. For example, while the Veteran complained of left knee pain in July 1981, the November 1987 Report of Medical examination at service separation shows a normal clinical evaluation for the lower extremities. In the accompanying Report of Medical History, the Veteran indicated that his health was “good,” that he was not taking any medication, and answered “no” when asked if he had or ever had “cramps in your legs;” “broken bones;” “arthritis, rheumatism, or bursitis;” “lameness;” and “trick or locked knee.” Thus, at separation, the Veteran’s left knee was normal and he denied having knee problems at that time, which tends to show that he did not incur a chronic left knee disability in service. Additionally, in the December 2014 VA examination report, the examiner addressed the 1981 in-service complaint. He explained that while the service treatment record indicated the Veteran had a mild sprain in the knee, he (the examiner) had found no residuals of the sprain. The examiner added that the Veteran’s left knee was normal on examination and that the Veteran had infrequent symptoms of left knee mild patella tendonitis, which he concluded is not connected to his service injury and is less than 50 percent likely incurred by active service. The examiner stated that the Veteran’s age and activity level as a mail carrier are more likely causes of his current tendonitis in the left knee. This is evidence against a nexus to service. In a May 2018 appellant’s brief, the Veteran, through his representative, asserted that his left knee disability was incurred coincident with service and that a private medical record from December 2013 shows that the Veteran’s left knee condition likely represents a sequela of an old injury. The Board finds that the Veteran has not offered probative and competent medical evidence establishing a nexus between his left knee disability and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A diagnosis of a knee disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. There are numerous post-service medical records reflecting complaints and treatment for a left knee disability. However, these records do not provide a positive nexus regarding the onset, etiology, or relationship of a left knee disability to military service. In the December 2013 private medical record referenced by the Veteran above, the medical professional stated that there was a well corticated bony focus adjacent to the left tibial tuberosity, which was likely representing sequela of an old injury, however, the examiner did not specify a particular “old injury.” Notably, the private medical records show that there were multiple old injuries that the Veteran had sustained. For example, the Veteran fell off a 10-foot tall ladder in November 1989, experienced a dog bite to the back of his left knee after he fell unconscious from being hit in the face while working as a mail carrier in November 2000, reported gait instability in May 2012, which had worsened while working as a mailman, and sustained an injury in August 2013 after picking up two plastic trays of mail. The examiner also did not explain the basis for his conclusion, which lessens the probative value of this opinion. The Board finds of more probative value the medical opinion of the December 2014 VA examiner. The VA examination report and opinion provides competent and probative evidence that weighs against the Veteran’s claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided a medical opinion supported by well-reasoned rationale. Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his left knee disability, the Board finds that his current left knee disability was not incurred in service and it is not otherwise related to active service. See 38 U.S.C. § 5107(a). Accordingly, service connection for a left knee disability is not warranted. 2. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service exposure to acoustic trauma. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As to evidence of a current disability, the Veteran has a current bilateral hearing loss disability for VA purposes, as documented in an December 2014 VA audiological examination. Accordingly, the first element of service connection is met. As to an in-service disease or injury, the Veteran was exposed to in-service acoustic trauma. The Veteran indicated during the December 2014 VA examination that he was exposed to small artillery, live fire, and loud explosions with only “cheap military ear plugs” and his hands to cover his ears. In a January 2015 notice of disagreement, the Veteran indicated that he went aboard different Navy ships which exposed him to noise including dealing with high explosives, cross training with Naval gunfire, artillery and marking for airstrikes. In a March 2016 substantive appeal (VA Form 9), the Veteran reported that he was a mortar man with the U.S. Marines and was exposed to several live fire exercises, heavy machines, and helicopter operations during active duty service. In light of the above, the Board finds that the Veteran was exposed to hazardous noise during his service, and the second element of service connection is met. However, as to the third element of a nexus to service, the Board finds that the preponderance of the evidence is against a nexus between the post-service hearing loss disability and service. For example, the Veteran’s November 1987 Report of Medical Examination at separation reflects a normal clinical evaluation of “ears – general.” The audiological examination showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 10 10 23 10 10 In the October 1987 Report of Medical History, under part 11, the Veteran checked “yes” when asked if he had or ever had “hearing loss.” The examiner indicated that that under number 11 for hearing loss, the Veteran had a hearing test on January 5, 1987 and “NCD” or not considered disabling. Additionally, in the December 2014 VA examination report, the examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not caused by or a result of an event in military service based on normal hearing thresholds in-service and no significant positive threshold shifts when comparing audiograms from around the time of service entrance and separation. The examiner added that a June 1997 audiogram, conducted nine years post-active duty, showed normal hearing thresholds. She explained that later tests showed the emergence of hearing loss, starting with a November 1999 audiogram, a February 2000 audiogram, and finally a February 2014 audiogram. She explained that the evidence (audiograms) showed that the current hearing loss began significantly after active duty and the last audiogram from active duty showed normal hearing thresholds. This is evidence against a nexus to service. The Veteran has attempted to establish a nexus through his own lay assertions that his bilateral hearing loss is related to his in-service exposure to noise hazards; however, the Veteran is not competent to offer opinions as to the etiology of his current hearing disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hearing loss requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion. The Board has considered objective medical evidence which showed that he did not have a hearing loss disability until over a decade after service. Further, the while the Veteran specifically reported a history of hearing loss in the Report of Medical History that he completed at separation, the examiner at separation indicated that a hearing test performed shortly before separation showed that his hearing loss was not considered disabling. Accordingly, service connection on a direct basis is denied. Given the lack of a bilateral hearing loss disability shown in service and post-service medical records which show that the Veteran’s hearing loss did not develop until around the time of a November 1999 audiogram, over a decade after service, the Board finds that the Veteran’s bilateral hearing loss did not manifest to a degree of 10 percent or greater within one year following his active duty discharge in September 1988. 38 U.S.C. §§ 1131, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, bilateral hearing loss was not shown during service and there is no evidence of any continuity of related symptomatology after service and service connection on a presumptive basis is denied. Id. For all the reasons stated above, the preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability on either a direct basis or a presumptive basis, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Where, as here, the ratings appealed are the initial ratings assigned with grants of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. 3. Entitlement to an initial compensable evaluation for seborrheic dermatitis. The Veteran contends that an initial compensable evaluation is warranted for seborrheic dermatitis. The Veteran’s seborrheic dermatitis is rated under 38 C.F.R. § 4.118, DC 7806. Recently, VA amended the criteria for rating the skin. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994). The Board finds that for a compensable rating is not warranted as the preponderance of the evidence is against a finding that 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 by the Veteran’s seborrheic dermatitis, or; intermittent systemic immunosuppressive drugs were required for a duration of less than six weeks during a 12-month period. In a May 2018 appellant’s brief, through his representative, the Veteran asserted that he had been treated for his skin condition for the preceding 12-months and had tried to contain it through home remedies and medically prescribed medication that had been constant or near constant. The Veteran’s representative noted that it had been reported that the skin condition is on the Veteran’s arm, face, and scalp which caused loss of hair and that the Disability Benefits Questionnaire (DBQ) showed continuous use of medication. The Veteran was provided a VA examination in December 2014. The examiner indicated that the Veteran’s dermatitis affected less than 5 percent of total body area and none of the exposed body area. The examiner specifically noted that despite the Veteran’s insistence, there were no skin lesions on the head, face, or neck including the preauricular just lateral to the temples where the Veteran believed that the skin was lighter, the eyelids, eyebrows, or pernasal areas. He added that there was a 5 cm by 5 cm. area overlying the lower end of his sternum containing a few micropapules but there was no inflammation. The examiner indicated that the Veteran was treated with topical medication of baby oil emollient on the skin of the face and chest which had been constant or near-constant in the preceding 12-months. Further, he checked “no” when asked if the Veteran had any treatments or procedures other than systemic or topical medications in the preceding 12-months for exfoliative dermatitis or papuosquamous disorders and if the Veteran had any debilitating or non-debilitating episodes due to urticarial, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the skin condition and it did not impact his ability to work as determined by the examiner. The preponderance of the evidence is against a finding that the Veteran’s seborrheic dermatitis requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. The Veteran does not contend that he used any topical corticosteroids and the use of baby oil emollient on limited areas of the body does not constitute systemic therapy. Therefore, a compensable disability rating based on use of corticosteroids or immunosuppressant drugs is not applicable. 38 C.F.R. § 4.118, DC 7806. The Board has also considered whether a higher rating was available under other potentially applicable diagnostic codes, however, the evidence did not demonstrate that the Veteran’s service-connected skin disorder was manifested by scars or characteristics of disfigurements. 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804, 7805. The Board finds no other applicable DC. For the above reasons, the Board finds that the preponderance of the evidence is against entitlement to an initial compensable disability rating for seborrheic dermatitis. Thus, the benefit-of-the-doubt doctrine is not for application and the claim for a higher rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 4. Entitlement to an initial evaluation in excess of 10 percent for traumatic brain injury (TBI) is remanded. The Board must remand the Veteran’s increased rating claim for residuals of TBI to afford him a new VA examination. Specifically, the Veteran underwent a VA examination in November 2014, which was conducted by a staff physician with a designation of “medical doctor” or “M.D.” However, VA’s Adjudication Procedures Manual stipulates that an initial TBI examination must be conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon. See M21-1, III.iv.3.D.2.j. In May 2016, VA’s Secretary granted equitable relief that permits VA to provide new initial TBI examinations to impacted claimants. Accordingly, the Board is remanding the issue in order to schedule the Veteran for a new examination. See 38 U.S.C. § 7107(f)(2) (2012). 5. Entitlement to an initial compensable evaluation for headaches associated with traumatic brain injury (TBI) is remanded. A determination with respect to the increased rating claim for TBI may have an impact upon consideration of the issue of the increased rating claim for headaches associated with TBI on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s increased rating claim for headaches associated with TBI is deferred pending adjudication of the Veteran’s increased rating claim for TBI. The matters are REMANDED for the following action: 1. Schedule the Veteran for a TBI examination to ascertain the current symptomatology of his residuals of TBI 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 for the Veteran’s residuals of TBI disability. The examiner is asked to differentiate the symptoms attributable to TBI and those that are related to the Veteran’s service-connected depressive disorder and anxiety. 2. Thereafter, the AOJ should undertake any development deemed necessary with the Veteran’s increased rating claim for headaches, to include a VA examination to determine the current severity of the Veteran’s service-connected headaches if needed, and readjudicate the Veteran’s increased rating claim for headaches on appeal in light of all the evidence of record. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel