Citation Nr: 18144728 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-39 046A DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a depressive disorder is granted. Entitlement to an initial compensable rating for bilateral tinea pedis is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran did not experience a loss of hearing in service and his current levels of hearing loss are not related to his time in service. 2. The onset of the Veteran’s tinnitus after service is not attributable to his exposure to noise while in service. 3. The Veteran’s depressive disorder is aggravated by the chronic pain he experiences from his service-connected bilateral foot conditions. 4. Bilateral tinea pedis affects less than 5 percent of the Veteran's body and none of his exposed areas. CONCLUSIONS OF LAW 1. The criteria for service connection for BHL and tinnitus have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for depressive disorder are met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310(b). 3. The criteria for a compensable evaluation for bilateral tinea pedis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1978 to October 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2013 (service connection for depressive disorder) and May 2012 (all other above listed issues) rating decisions. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. A transcript of the hearing is associated with the claims file. At the May 2017 hearing, the matter of having the Veteran’s claim advanced on the docket due to financial hardship was taken under consideration. Under 38 C.F.R. § 20.900(c), a case may be advanced on the Board’s docket for several reasons, to include as due to serious financial hardship. With respect to financial hardship, the Board does not ordinarily advance a case on the docket unless such hardship is grave in nature at the time the motion is granted, such as if the Veteran is homeless or in the process of foreclosure or eviction proceedings. The Veteran was advised at his hearing that he needed to submit proof of his financial hardship, to include documentation showing his utilities were going to be turned off. No documentation was ever received. The Board acknowledges that there is documentation from August 2014 that the Veteran’s utilities were overdue and pending suspension, however there is no proof of current hardship. Also, the Veteran alleged that he was experiencing hardship because his VA benefits had been decreased. In August 2017, the RO sent the Veteran a rating decision that modified the ratings for bilateral service-connected foot conditions not on appeal from 10 percent for each foot, to a single 50 percent evaluation, effective April 2017. In light of the foregoing, the Board denies the Veteran’s motion. Service Connection In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 1. Entitlement to service connection for (BHL) and tinnitus The Veteran contends that his BHL and tinnitus began in service and were caused by his MOS as a carpenter requiring use of machinery “on the flight line.” Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include BHL and tinnitus (as organic diseases of the nervous system), listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). Impaired hearing will be considered to be a disability for service connection purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. As an initial matter, the Board finds that the Veteran was exposed to hazardous noise in service based on his MOS as a carpenter, which required he used loud machinery, and an undated form in the Veteran’s service treatment records (STRs) indicating he had hazardous noise exposure. On his entrance medical examination, the Veteran had elevated auditory thresholds across all measured Hertz levels in both ears. In the left ear, the auditory threshold at 4000 Hertz was 35 decibels, just shy of qualifying as a disability for VA compensation purposes. The Veteran had several additional audiograms during service, including in June 1979 and June 1980 as part of a hearing conservation program. The later audiograms actually showed improved hearing acuity as compared to the Veteran’s entrance exam across most frequencies. At no point did the Veteran’s hearing levels qualify as a disability for service connection purposes while he was in service. Additionally, there is no reference to tinnitus symptoms in the Veteran’s STRs. At an August 2009 audiology consultation, the Veteran reported experiencing tinnitus symptoms and having difficulty hearing with background noise. He explained that he was exposed to noise as a carpenter in service because he used table saws and other machinery, and he indicated that although he was a carpenter for a period after service, he used hearing protection at that time. In a January 2010 statement to the VA, the Veteran indicated that he worked “on the flight line” as a carpenter, and so was also exposed to the noise of jet engines “on a daily basis. He indicated that he began noticing hearing loss and ringing in his ears in service, and that it continued to the present day. At his October 2010 VA examination, the Veteran reiterated that he worked on the flight line, and further asserted that he was not issued hearing protection in service. He stated that his hearing loss symptoms began “20-30 years ago” and that his tinnitus symptoms began 20 years ago bilaterally, but were more noticeable in the left ear. The Board notes that, based on the October 2010 VA examination, the Veteran does have BHL disability for service connection purposes because the auditory thresholds were measured above 40 in the 3000 and 4000 Hertz ranges. After reviewing the Veteran’s claims file and STRs, the VA examiner opined in December 2011 that it is less likely than not that the Veteran’s BHL and tinnitus are related to his in-service noise exposure because (1) the only hearing loss consistent with noise exposure that existed at discharge was the same that existed at entrance, with no further progression, (2) there was a “vague report of gradual onset of hearing loss and tinnitus” with onset being reported about 20 years before the exam or five years after separating from the military, (3) there is some history of civilian noise exposure, and (4) there was no documentation of treatment for either condition before 2009. The Board finds the examiner’s opinion to be highly probative because it is based on a thorough and accurate review of the claims file and it provides a clear rationale. The Board acknowledges that the Veteran asserts he has experienced ongoing symptomatology since service. However, there is also conflicting evidence in the record related to the Veteran’s asserted history related to his hearing loss and tinnitus. The Veteran asserted several times, including in the October 2010 VA examination and at the May 2017 Board hearing, that he was exposed to jet engine noise on the flight line and that he was not provided hearing protection. However, STR records from June 1979 and June 1980 show that the Veteran was issued ear plugs for hearing protection, and specifically designates that the Veteran was assigned to work in the carpenter shop and not on the flight line. Additionally, the Veteran’s assertions are internally inconsistent with his own report to a medical provider in August 2009 that his noise exposure in service was related to “table saws and other machinery.” In making its determination, the Board must weigh the probative value of all evidence. Unfortunately, based on the foregoing, the preponderance of the evidence weighs against a finding that the Veteran’s BHL and tinnitus are causally related to his noise exposure in service, or that he has had a continuity of symptomatology since service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims of entitlement to service connection for a BHL and tinnitus are not warranted. 2. Entitlement to service connection for a depressive disorder The Veteran asserts that his depressive disorder is secondary to the pain associated with his service-connected bilateral foot disabilities. The Veteran first sought a referral for psychiatric care in February 2011, after having previously refused referral in August 2009. At his August 2012 intake appointment, the Veteran explained that he had had pain in his feet since the military, that it made him walk funny sometimes, and that it seemed to impact his ability to get a job. The Veteran expressed the opinion that he had depression, anxiety, panic attacks, insomnia, and pain disorder. The medical professional who evaluated the Veteran stated a diagnostic impression listing depression NOS, anxiety NOS, and panic disorder on Axis I, “Rule out [personality disorder] NOS” on Axis II, and chronic pain on Axis III. The Veteran was also found to be in remission for substance abuse disorders. Although the Veteran’s psychiatric diagnoses have varied throughout the medical record, he has generally been diagnosed with a depressive disorder and his chronic pain has often been discussed or listed as an Axis III issue. An appointment note from later in August 2012 showed that he had been prescribed gabapentin by his mental health provider to help with pain and anxiety, but that it wasn’t helping. In April 2017, a medical provider explained to the Veteran that he had several “stressors that impinge on his mental symptoms,” including financial hardship and chronic pain. Several VA examinations are of record that conflict as to whether, or to what extent, the Veteran’s psychiatric symptomatology is related to service or to his service-connected bilateral foot disabilities. In a June 2013 VA examination, the examiner opined that it was less likely than not that the Veteran incurred a psychiatric disability in service or that his current psychiatric symptomatology was related to his service-connected bilateral foot disabilities. In relation to the former, the examiner explained that he “found no evidence of a mental disorder incurred during his military service in [the Veteran’s] c-file.” In relation to the latter, the examiner opined that chronic pain can aggravate a psychiatric condition, but that he could not determine whether it did so in this Veteran’s case without resort to mere speculation. Rather, he opined that the Veteran’s disabilities are “more consistent with personality and psychosocial factors, as indicated per records.” In an August 2015 VA examination, the examiner opined that it was at least as likely as not that the Veteran’s depression and other psychiatric disabilities were proximately due to his bilateral foot disabilities because the chronic pain made it difficult for him to adjust to life after the military, and because he isolated himself from others because he thought they stared at his misshapen feet. This examination indicates that the Veteran reported he had been experiencing depression since he was in service but did not feel he could discuss it at the time. The Board notes that this directly conflicts with other evidence of record, including an October 2001 report that, although he was experiencing addiction problems, he was not experiencing any depression or anxiety. Further, in January 2016 the Veteran stated he began experiencing depression in the 1980’s or 1990’s. Finally, in November 2015, an additional opinion was sought to evaluate the existing opinions from June 2013 and August 2015. The November 2015 opinion noted that for the positive nexus opinion in the August 2015 examination, the examiner had not pointed to any objective outside evidence in the STRs or the VA treatment records in making conclusions. The November 2015 examiner also indicated that the rationale in the August 2015 examination was not “sound.” By contrast, it indicated that the June 2013 examination had “relied on previous objective evidence by using the veteran’s VA mental health records and his STRs” and so had reached a more logical conclusion. In weighing all of the medical evidence of record, the Board first finds that the preponderance of the evidence is against a finding that the Veteran incurred his psychiatric condition(s) in service. As noted by the June 2013 examiner, there is no indication in the STRs that the Veteran experienced any psychiatric symptomatology in service. Additionally, as explained above, all evidence except the statement made to the August 2015 examiner suggests that the Veteran did not begin experiencing psychiatric symptomatology until after he was discharged from service. Second, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s psychiatric condition(s) are proximately due to his service-connected bilateral foot disabilities. The Board finds the June 2013 and November 2015 VA examinations to be of the most probative value in that regard because they considered all of the relevant information of record and provided a reasoned rationale. Although the August 2015 examiner indicated she had read the Veteran’s full claims file, much of the assertions contained in the opinion were of a very different character than contained elsewhere in the record, and the rationale used circular logic and was generally unclear. However, the Board finds that the evidence shows the Veteran’s chronic pain from his service-connected bilateral foot disabilities aggravates his depressive disorder. While the June 2013 examiner stated he could not opine whether the Veteran’s pain did so in this case, he did acknowledge that it is medically possible for chronic pain to aggravate a psychiatric condition. Other evidence of record supports a finding that the Veteran’s condition is aggravated by his chronic pain. The Board finds particularly probative in this regard the April 2017 medical record discussed above. The Board finds that the evidence is at least in equipoise that the Veteran’s depressive disorder has been aggravated beyond its natural progression by the pain associated with his service-connected bilateral foot disabilities. Accordingly, service connection is warranted on a secondary basis due to aggravation. The Board has noted that under the current version of 38 C.F.R. § 3.310, the baseline severity of the disorder prior to the grant of service connection must be determined. If the medical evidence is adequately developed, the baseline degree of aggravation should be attainable. See 71 Fed. Reg. 52,744. Rating Disabilities in general Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an initial-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 3. Entitlement to an initial compensable rating for bilateral tinea pedis The Veteran received an initial non-compensable rating for his service-connected bilateral tinea pedis, which is rated under Diagnostic Code (DC) 7813-7806. Diagnostic Code 7806 provides that a noncompensable rating is warranted if less than five percent of the entire body or less than five percent of exposed areas are affected, and; no more than topical therapy was required during the past 12 month period. A 10 percent rating is warranted if at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12 month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12 month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12 month period. The April 2016 VA skin examination reflects that the Veteran’s fungal infection of the feet affects less than 5 percent of his total body area and affects none of his exposed areas. Since “systemic therapy,” which is the type of therapy that creates compensability, is connected to the phrase “corticosteroids or other immunosuppressive drugs” by “such as,” those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Warren v. McDonald, 28 Vet. App. 194 (2016) (citing Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002)). Consequently, the types of systemic treatment that are compensable under DC 7806 are not limited to “corticosteroids or other immunosuppressive drugs”; compensation is available for all systemic therapies given the nature of their use or to topical therapies administered on a large enough scale that they affect the body as a whole. Id. Additionally, the term “systemic” means “pertaining to or affecting the body as a whole,” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1865 (32nd ed. 2012), whereas the term “topical” means “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.” Id. at 1940. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit noted that DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” The Federal Circuit went on to explain 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.” Although 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. As here, where by its nature tinea pedis affects only the feet. The Court has defined tinea pedis as athlete’s foot (Ardison v. Brown, 6 Vet. App. 405 (1994)) and a “skin condition of the feet.” Morris v. Derwinski, 1 Vet. App. 260 (1991). The Veteran’s medical records show that he has been prescribed a number of topical treatments to treat his bilateral tinea pedis during the period on appeal. Given that tinea pedis affects the Veteran’s feet, the preponderance of the evidence is against a finding that any of these treatments, alone or in combination, amount to systemic treatment. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims of entitlement to a compensable rating for tinea pedis is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability The Veteran contends that his low back strain is secondary to his service-connected bilateral foot disabilities. By way of example, an August 2009 entry in the VA medical record reads: “[The Veteran] said that due to the arthritic problems in his feet that he thinks it affects his gait and contributes to chronic low back problems.” The Court has held that “it is a big stretch of the English language to construe the phrase ‘no etiological relationship...’ as encompassing aggravation.” Allen v. Brown, 7 Vet. App. 439, 449 (1995). By the Court’s standard, the VA medical opinions of record do not appear to adequately encompass consideration of aggravation. The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records. 2. Forward the claims file to an appropriate VA clinician for a medical opinion. The entire claims file and a copy of this remand must be made available to the examiner. The clinician is requested to provide an opinion on the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's low back strain has been aggravated (i.e. worsened in degree of severity) by his service-connected foot disabilities? A complete explanation for all conclusions is requested. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel