Citation Nr: 18151036 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-41 604 DATE: November 16, 2018 ORDER Entitlement to service connection for a thoracolumbar degenerative disc disease (DDD) is granted. A 10 percent evaluation, but no higher, for contact dermatitis of the right thumb is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s DDD was at least as likely as not incurred during military service. 2. The Veteran’s contact dermatitis of the right thumb is more closely approximate to a single, painful scar throughout the appeal period; the evidence of record does not demonstrate that the Veteran has any more than topical therapy throughout the appeal period, and that his skin disability does not cover an area of at least 6 square (sq.) inches (39 sq. cm) or cover at least 5 percent of his total body or exposed body areas. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracolumbar DDD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 10 percent evaluation, but no higher, for contact dermatitis of the right thumb are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7805, 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1964 to August 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As a final initial matter, the Board reflects that, although the Veteran initially filed a notice of disagreement with all of the issues decided in the November 2014 rating decision, in his August 2016 Substantive Appeal, VA Form 9, limited his appeal to the thoracolumbar spine, dermatitis, and bilateral hearing loss issues noted above. Accordingly, the Board finds that the service connection claims for bilateral knee and psychiatric disorders to be final at this time and will no longer be discussed in this decision. See 38 C.F.R. §§ 20.200, 20.202, 20.1103. Service Connection for Thoracolumbar Spine Disorder 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, 1131; 38 C.F.R. § 3.303(a). “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). The evidence of record demonstrates that the Veteran has thoracolumbar DDD; he contends that his arthritis and DDD of the thoracolumbar spine were incurred during active service, as a result of wear and tear caused by his work on the flight line in Vietnam handling baggage coming off passenger jets and developed while he was on active duty. The first two elements of service connection have therefore been met in this case. A March 2014 letter from his private physician, Dr. W.A.Q., indicated that the Veteran had degeneration the lumbosacral intervertebral disc. In a February 2016 letter, Dr. W.A.Q. indicated that the Veteran was diagnosed with degenerative lumbar disc disease in early 1976, opining that the disease had been present for many years before x-ray findings presented themselves. He further opined that it was “documented in the medical literature that back pain and suffering can begin 5 to 10 years before we can document the diagnosis radiographically.” Although the Veteran’s thoracolumbar spine was noted to be diagnosed several years after military service in this case, the Board reflects that Dr. W.A.Q.’s opinion is the only evidence of record related to a nexus in this case; therefore, such evidence is the most probative evidence with respect to whether the Veteran’s thoracolumbar DDD is related to service. Accordingly, the preponderance of the evidence in this case weighs in favor of finding that the Veteran’s thoracolumbar DDD was incurred in or otherwise the result of military service. By resolving reasonable doubt in his favor, the Board finds that service connection for thoracolumbar DDD is warranted in this case based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303. Increased Rating for Contact Dermatitis Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran filed his claim for increased evaluation of his contact dermatitis of the right thumb on March 12, 2014; the Board had considered the pertinent evidence of record respecting that disability since March 12, 2013, in conjunction with this decision. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran’s contact dermatitis of the right thumb has been assigned a noncompensable evaluation under Diagnostic Code 7806. Under Diagnostic Code 7806, dermatitis or eczema is assigned a 10 percent evaluation where there is involvement of 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 evaluation requires involvement of 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. A 60 percent rating is assigned with involvement of 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. The rating criteria for dermatitis also allows for the disability to be rated under the rating criteria for scars found in Diagnostic Codes 7801-7805, depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board reflects that during the pendency of the claim, effective August 13, 2018, Diagnostic Code 7806 was amended. The Board, however, reflects that the amendments the regulation did not change the substance of the criteria for evaluation in this case. See 38 C.F.R. 4.118; 83 Fed. Reg. 32592 (Jul. 13, 2018). On appeal, the Veteran asserts that he has mild sensitivity, discoloration, and pain in the thumb periodically since he incurred the disability while in service. The Veteran asserts that due to those symptoms a compensable evaluation is warranted. The Veteran underwent a VA dermatological examination of his right thumb in September 2014. At the time of the examination, it was noted the Veteran did not have any active dermatitis on his thumb. The examiner noted that the Veteran’s in-service dermatitis was “temporary and resolved as expected” while the Veteran was still on active duty. The Veteran did not report any treatment for the disability, and there was no indication that the discoloration on his thumb covered at least 5 percent of his entire body or exposed body areas. The examiner noted that the Veteran’s skin disability did not impact his ability to work. In October 2014, the Veteran sought private treatment from Dr. M.C., at which time he complained of discoloration of his right thumb; the Veteran reported that the right thumb broke out in lesions during his period of service in the Republic of Vietnam. He reported that such resolved and has not bothered him since. He further reported that the discoloration began soon after the lesion healed and that he had mild sensitivity in the thumb occasionally over the last several years. The Veteran denied any change in appearance in the last 30 years, and Dr. M.C. noted that a single spot near the tip of his right thumb appeared darker. On examination, Dr. M.C. noted a “3 mm brown macule arising within a background of multiple 2-3 mm subtle brown macules affecting the entire palmar surface of the thumb.” Dr. M.C. diagnosed the Veteran with a Unk Beh neoplasm and ordered a biopsy. The biopsy demonstrated lentigo with melanin incontinence, without malignancy or melanocytic lesion identified. Based on the foregoing evidence, the Board finds that a compensable evaluation under Diagnostic Code 7806 is not warranted in this case, as the evidence demonstrates that the Veteran has not had any more than topical treatment for his skin disability at any time during the appeal period; likewise, the total body and exposed body areas affected by the Veteran’s contact dermatitis are both shown to be less than 5 percent throughout the appeal period. Such findings are commensurate to a noncompensable evaluation under Diagnostic Code 7806. Nevertheless, Diagnostic Code 7806 does redirect the rater to consider Diagnostic Codes 7801 through 7804 (Diagnostic Code 7805 also redirects the rater to those Diagnostic Codes as well.). The Board reflects that the Veteran’s contact dermatitis of the right thumb is necessarily not of the head, face and neck, and the above noted areas affected are not at least 6 sq. inches (39 sq. cm) in this case. Thus, Diagnostic Codes 7800, 7801, and 7802 are inapplicable in this case. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7802. Accordingly, throughout the appeal period, the Veteran is shown to have “multiple papules,” although a single lesion was biopsied in October 2014. The Veteran was noted to have pain and mild sensitivity of that single lesion during the appeal period. Consequently, by resolving reasonable doubt in his favor, the Board finds that the Veteran’s contact dermatitis is more closely approximate to a single, painful scar in this case. Such is commensurate to a 10 percent evaluation under Diagnostic Code 7804 in this case, and to that extent the Veteran’s claim for increased evaluation of his contact dermatitis of the right thumb is warranted, although in all other aspects his claim is denied. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Respecting the Veteran’s bilateral hearing loss claim, the Veteran underwent a VA examination in November 2014 in which a hearing loss disability under 38 C.F.R. § 3.385 was shown to exist in his right ear only. The examiner stated that the Veteran’s right ear hearing loss was not related to military service as his audiograms were normal on separation from service. On appeal, the Veteran has asserted that he has bilateral hearing loss that is due to his exposure to jet engine noise while serving with the United States Air Force, while serving as a baggage handler while stationed in Vietnam; he was responsible for unloading and loading cargo from inbound and outbound planes landing at the air base he was stationed at. He stated that this put him near running jet engines for long periods of time, daily, during his deployment. The Board finds that the VA examiner’s opinion in this case is not adequate as the presence of a hearing disability during military service is not necessary for a finding of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Rather, the relevant inquiry is whether the current hearing loss is related to military service, to include in this case the noted noise exposure as a baggage handler therein. Thus, a remand is necessary in order to obtain another VA examination from a different examiner in order to obtain an adequate VA examination and medical opinion in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Las Vegas VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA audiology examination with an appropriate examiner who has not previously participated in this case. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should obtain information regarding the Veteran’s noise exposure during and after military service. Following audiometric testing, the examiner should indicate whether the Veteran has any hearing loss disability under 38 C.F.R. § 3.385, bilaterally. Then, the examiner should opine whether any bilateral hearing loss found at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any noise exposure as a result of being a baggage handler during military service. Specifically, the examiner needs to address whether the Veteran’s hearing loss are related to his noise exposure during military service, regardless of whether such was noted until many years after military service. The examiner must also additionally discuss any noted threshold shifts that occurred during military service, and what, if any, significance those shifts have with respect to the requested medical opinion. The examiner should consider the Veteran’s statements regarding onset of symptomatology and continuity of symptomatology since discharge from service, as well as any other pertinent evidence, as appropriate. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel