Citation Nr: 18152489 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-17 203 DATE: November 23, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a bowel disorder, with symptoms of pain, cramping, and recurring diarrhea, is denied. A disability rating higher than 10 percent for a thoracolumbar strain is denied. A 10 percent disability rating, but no higher, for tinea pedis is granted. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus that can be service-connected. 3. The preponderance of the evidence is against finding that the Veteran currently has a bowel disorder with symptoms such as pain, cramping, and recurring diarrhea. 4. During the pendency of this appeal, the Veteran’s service-connected thoracolumbar strain has, at worst, been manifested by normal range of motion, with or without pain. 5. During the pendency of this appeal, residuals of the Veteran’s tinea pedis have included deep cracks and deep fissures of the skin on his feet. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a bowel disorder, with symptoms consisting of pain, cramping, and recurring diarrhea, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for an increased rating higher than 10 percent for a thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1 - 4.14, 4.71a, Diagnostic Code (DC) 5237. 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for the assignment of a 10 percent disability rating, but no higher, for tinea pedis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1 - 4.14, 4.118, Diagnostic Codes (DC) 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Marine Corps. for 20 years, from February 1993 to February 2013. To ensure the record is complete, the Board notes that the claims file contains several conflicting documents related to the Veteran’s option of electing to have a hearing before a member of the Board to present testimony in support of his claims. In September 2018, the Board sought clarification from the Veteran’s representative as to whether the Veteran wanted a BVA hearing. Recently, the representative notified the Board that the Veteran did not. Therefore, the appeal is ripe for adjudication. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss (considered by VA to be an organic disease of the nervous system), will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss. He reports that he has difficulty distinguishing voices in a crowded room and difficulty hearing people when there is background noise. The Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, he is competent to report that he currently has problems with his hearing; and that he had some problems with his hearing in service. In this regard, a service medical record dated in October 2012 reflects that the Veteran reported a history of, among other things, hearing loss. When audiological clinicians measure sound intensity, they do so in dB HL (decibels Hearing Level). In a clinical audiogram test, pure tones between 250 and 8000 HZ (Hertz) are presented at varying levels to determine a patient’s pure tone detection thresholds in the left and right ears. Thresholds between -10 and +20 are considered in the normal range, while thresholds above 20 decibels are considered diagnostic for mild, moderate, severe or profound hearing loss. See auditoryneuroscience.com/acoustics/clinical-audiograms. For VA proposes, in order for service connection to be granted for hearing loss, the evidence must show that a veteran has a pure tone auditory threshold of 40 decibels or greater in one of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or has three pure tone auditory thresholds for frequencies 500, 1000, 2000, 3000, and 4000 Hertz above 26 decibels each; or that a veteran’s Maryland CNC Test speech recognition scores are less than 94 percent. The Veteran’s hearing was tested in June 2013, four months after he separated from service. According to the June 2013 audiological examination report, the Veteran’s audiogram scores were within normal limits, i.e. the thresholds for the right ear ranged from -5 to +15; and his left ear thresholds ranged from -5 to +10. None of the Veteran’s hearing thresholds for frequencies 500, 1000, 2000, 3000, or 4000 were outside the -10 to +20 normal range. The Veteran’s speech recognition scores were reported as 100% for each ear. Thus, the Veteran was diagnosed with normal hearing for the left and right ears. Since the Veteran had no ratable hearing loss, service connection cannot be granted for a bilateral hearing loss disability. 2. Service connection for tinnitus and a bowel condition. a. Tinnitus In January 2013, a month prior to his separation from service, the Veteran submitted several claims for compensation, including a claim for tinnitus. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. The Veteran contends that he should be service-connected for tinnitus based on exposure to noise in service, to specifically include a blast explosion during combat. While the Veteran served on active duty for 20 years, his medical records are silent for tinnitus or any symptomatology that could be related to this condition. Additionally, on several occasions in 2012, the Veteran specifically denied having tinnitus when seen in relation to other medical conditions. During his June 2013 audiological examination referenced in section #1 above, the Veteran also reported that he did not have recurrent tinnitus; and therefore, the audiologist who examined him did not diagnose him with tinnitus. The evidence in the claims file supportive of the Veteran’s claim includes his assertions that he has tinnitus; one statement in which he reports experiencing ringing in his ears; and statements made to a VA neurologist during a June 2013 traumatic brain injury examination that he had erratic tinnitus and that his wife told him he complained about tinnitus about twice a week. Regarding the Veteran’s overall tinnitus claim, the VA neurologist deferred to the VA audiological evaluation. However, to the extent of the Veteran’s complaints of tinnitus were alleged to be related to a TBI, the neurologist opined that it was less likely than not due to military noise exposure, including exposure to noise from a blast explosion. As set forth above, tinnitus is a subjective-type of medical condition. It can be diagnosed by a lay person on a subjective basis. However, the Veteran has never consistently reported that he experiences ringing of the ears or other symptomatology related to tinnitus. When he has described having tinnitus, he reports it as the result of a blast explosion – one that did not affect his bilateral hearing (since his hearing has been found to be within normal limits); has stated it is erratic; and that his wife has told him that he complains about it. He has denied having recurrent tinnitus on numerous occasions, including during his June 2013 VA audiological examination. He has never described himself as having the symptoms of tinnitus upon which he can self-diagnose the condition. Given the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has a diagnosis of tinnitus, much less tinnitus that manifested in service or soon after separation from service. In other words, the Board finds that the Veteran’s overly-broad assertion that he has tinnitus is not akin to a persuasive diagnosis of the condition given the absence of subjective symptomatology reported in the record. Absent a current tinnitus diagnosis, service connection cannot be granted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). b. A bowel condition In January 2013, the Veteran submitted a claim for, among other things, a bowel disorder with pain/cramping and recurring diarrhea. While not specified, the Veteran’s bowel disorder claim appears to be based upon a December 2010 incident in service in which he was seen for complaints of stomach pain, nausea, vomiting and bloody diarrhea that lasted for several days; and for which he was ultimately diagnosed as having probable acute E. coli gastroenteritis associated with seafood poisoning. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran’s medical records reveals that in December 2010, the Veteran was seen for complaints of stomach pain, nausea, vomiting and bloody diarrhea that he reported began several days earlier. The Veteran told his medical provider that he had not had any similar stomach/bowel symptoms in the past. His medical provider noted that he did not have any pertinent past medical history, no hospitalizations, no gastrointestinal bleeding and no chronic illnesses. The Veteran was treated and diagnosed with gastroenteritis associated with seafood poisoning. He was released from the medical clinic where he had been seen, with instructions that included he return to the clinic if he developed increased bleeding, acute abdominal pain, fever or if his symptoms did not improve within 3-5 days. A review of the Veteran’s subsequent service medical records fails to show that the Veteran returned to the clinic for follow-up care. Additional records, such as those dated in August 2012, reflect that even though the Veteran had a history of gastroenteritis, he denied having actual gastrointestinal problems at that time. In a June 2013 VA Intestinal Conditions examination, the Veteran did not endorse any current issues with recurring diarrhea or constipation. While he described “cramping” pain, bloating and gas, the examiner associated those symptoms with the Veteran’s service-connected GERD condition. Other than the foregoing, the Veteran had no chronic intestinal complaints. He was specifically noted as not having any episodes of bowel disturbance with abdominal distress, exacerbations or attacks of an intestinal disorder. Given the foregoing, the VA examiner stated that there was no evidence of any current intestinal condition; and therefore, he could not render a diagnosis of a bowl condition that could be related to the Veteran’s service connection claim. Thus, the only evidence of record supportive of the Veteran’s claim is his statement seeking service connection. Although the Veteran is correct that he suffered an acute bowel condition in service, there is no evidence that he currently suffers from any bowel or intestinal disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A single episode of gastroenteritis in service is not sufficient upon which to grant service connection. Since there is no medical evidence that the Veteran currently suffers from a bowel condition that can be service-connected, the appeal as to this issue must be denied. Increased Ratings In the rating decision on appeal, the Veteran was service-connected for a thoracolumbar spine disability and tinea pedis. Currently, his disabilities are assigned a 10 percent rating and a noncompensable rating, respectively. In this appeal, the Veteran contends that his disabilities should be assigned higher ratings. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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; 38 C.F.R. §§ 3.321, 4.1. 3. Rating higher than 10 percent for a thoracolumbar spine disability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59. 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. However, the United States Court of Appeals for Veterans Claims (Court) 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 510; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Currently, the Veteran’s back disability is provided a 10 percent rating under Diagnostic Code (DC) 5237. The Veteran contends that this rating does not adequately reflect the severity of his back disability. He reports that his back pain has had a huge impact on his life. In this regard, he states that he had to quit his profitable business and change to a different career. In terms of flare-ups, he indicates that his back seizes up at times, causing loss of range-of-motion and the inability to carry even light objects. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. The assignments of higher rating are applicable upon a showing of additional symptomatology. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. Evaluations of 40 percent, and 60 percent are available upon a showing of evidence of additional symptomatology. In this case, a June 2013 VA examination report reveals that the Veteran had normal range-of-motion, with and without pain, on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation. Thus, his combined range of motion of the thoracolumbar spine was within normal range. The Veteran was noted as being able to perform repetitive-use testing with 3 repetitions, all reported as still having normal range of motion findings. The examiner indicated that the Veteran did not have any functional loss or impairment of the thoracolumbar spine. No localized tenderness, guarding, muscle spasms or loss of muscle strength were documented. The Veteran’s physical examination was noted as essentially being normal. Subsequent x-rays of the Veteran’s lumbar spine revealed transitional vertebrae at the lumbosacral junction, likely reflecting sacralization of L5; and x-rays of the thoracic spine revealed minimal anterior wedging at T4 and T12, age indeterminant. An April 2017 DBQ examination report reveals that range-of-motion testing was once again all normal, but with pain. The Veteran was noted as being able to perform repetitive-use testing with 3 repetitions, all reported as still having normal range-of-motion findings. There was, however, evidence of localized tenderness on palpation of the joints. In terms of flare-ups, the Veteran reported that he experienced moderate flare-ups approximately twice a week that lasted between 2 hours to 2 days. He stated that he experienced decreased range-of-motion during these times; and self-medicated with physical therapy, heating pads and occasionally used nonsteroidal anti-inflammatory drugs (NSAIDS). He indicated that he last sought hospital care in relation to his back in approximately 2015 or 2016; and that flare-ups did not affect his employment. The examiner was unable to say without resorting to speculation if pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability during flare-ups, repeated use or because of “pain on use or during flare-ups.” Diagnostic x-rays of the Veteran’s spine did not reveal arthritis. Thus, other than evidence of localized tenderness on palpation of the joints and painful motion, the Veteran’s physical examination was normal. A May 2017 addendum report noted for the record that the evidence in the claims file did not support a finding that the Veteran had radiculopathy because of his spine condition. Viewing the above-referenced evidence, the Veteran clearly does not meet the requirements for the assignment of the 10 percent schedular rating he currently has because the evidence shows he has normal range-of-motion for forward flexion, normal range-of-motion for the thoracolumbar spine and he does not have muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. He has been appropriately assigned a 10 percent evaluation based upon his alleged functional loss due to painful motion and flare-ups, even though neither medical examination reports reflect medical opinions of the Veteran having functional loss. In terms of potential additional loss of range-of-motion related to flare-ups of the Veteran’s back disability, the Board agrees with the VA examiners that it would be entirely speculative to provide an opinion on this issue. However, the Board’s impression from a complete review of the record is that any additional loss of motion attributable to flare-ups of the Veteran’s back disability would not meet the requirements of even a 10 percent rating under DC 5237, much less those for the assignment of a higher rating, since he has been found to have normal range-of-motion of the spine now. Therefore, a rating higher than 10 percent for the Veteran’s thoracolumbar spine disability is denied. 4. A compensable disability rating for tinea pedis. The Veteran has been service-connected for tinea pedis pursuant to DCs 7813-7806. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, the use of DCs 7813-7806 reflects that the Veteran’s tinea pedis of the feet is to be rated as disfigurement of the head, face, or neck; scars; or dermatitis pursuant to DC 7806. DC 7806 provides a noncompensable rating when less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected, and there was no more than topical treatment required during the past 12-month period. A 10 percent rating is warranted when 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 are affected; or, when intermittent systemic treatment such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period. Disability ratings of 30 percent and 60 percent are assigned upon a showing of additional symptomatology. 38 C.F.R. § 4.118, DC 7806. Since August 13, 2018, evidence of systemic treatment must consist of corticosteroids or other immunosuppressive drugs. Corticosteroids are anti-inflammatory drugs that are synthetic derivatives of the natural steroid, cortisol, which is produced by the adrenal glands. They are called “systemic” steroids if taken by mouth or given by injection as opposed to topical corticosteroids, which are applied directly to the skin. For purposes of DC 7806, the use of topical corticosteroids does not mean systemic treatment although in some cases a topical corticosteroid could conceivably be administered on a large enough scale to affect the body as a whole. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). However, prior to August 13, 2018, topical treatment for a skin disorder might constitute “systemic therapy” such as corticosteroids or other immunosuppressive drugs if it is determined that (a) a topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition; and (b) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 16-2037 Vet. App. (September 23, 2018). In this case, the Veteran was afforded VA skin examinations in June 2013 and in April 2017. In June 2013, the Veteran reported that he used over-the-counter antifungal cream and lotion daily, specifically clotrimazole (an anti-fungal medication). At that time, he indicated that he had severe cracking and fissures on the bottoms of both feet. His right great toe nail bed was noted to be infected and deformed. The Veteran also reported pain with standing due to the fissures in his heals and foot soles. Although the June 2013 examiner indicated on physical examination of the Veteran’s skin infection covered less than 5 percent of his total body area, and marked “NONE” in response to the question of the exposed area of the Veteran’s skin infection, he described the Veteran’s feet as having “[d]eep cracked/fissured skin noted to heels and forefoot, left great toe nail deformed with appearance consistent with fungal infection of the nail bed.” The April 2017 VA examiner also indicated on physical examination of the Veteran’s skin infection covered less than 5 percent of his total body area, and marked “NONE” in response to the question of the exposed area of the Veteran’s skin infection. He failed to provide an actual description of the Veteran’s feet. However, a review of the examination report reveals that the Veteran reported that he experienced “flare-ups” of his foot condition that included occasional cracks of his bilateral feet opening and his skin bleeding. The Veteran reported to the examiner that he had not used oral or topical medications in the previous 12 months for his condition. The RO has assigned a noncompensable evaluation for the Veteran’s tinea pedis based upon a finding that the condition affects less than 5 percent of the entire body and the Veteran required no more than topical therapy. However, while the RO correctly assigned the noncompensable rating based upon the VA examiners’ finding that “none” of the Veteran’s exposed foot area had active tinea pedis, the examination results clearly confirm the Veteran’s continual complaints that he suffers from painful, fissured foot skin. These “residuals” of tinea pedis were specifically noted on physical examination in June 2013 - i.e., deep cracked/fissured skin on the Veteran’s heels and forefoot. Given the Veteran’s residual symptomatology, the Board finds that the Veteran should be afforded reasonable doubt in terms of his tinea pedis affecting more than 5 percent, but less than 20 percent, of the exposed areas of his feet and granted a compensable disability rating of 10 percent. However, since there is no evidence of tinea pedis (or residuals thereof) affecting more than 20 percent of his feet; and the Veteran has used no more than antifungal cream or lotion in the past (with no indication of those creams or lotions affecting more than the Veteran’s foot area rather than his body as a whole), a rating of 20 percent is not warranted. See Burton v. Wilkie, 16-2037 Vet. App. (September 23, 2018). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Talpins, Patricia