Citation Nr: 18157742 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-62 814 DATE: December 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection pseudofolliculitis barbae is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable evaluation for service-connected hypertension is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability for VA purposes. 2. The evidence is against a finding that the Veteran has a current disability related to pseudofolliculitis barbae. 3. The Veteran’s tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to October 1978 and served on active duty for training (ACDUTRA) from May 1975 to September 1975. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Bilateral hearing loss The Veteran filed a March 2016 claim for service connection for bilateral hearing loss. See March 2016 VA Form 21-526EZ. He contends that he was exposed to loud noises in service from firing rifles, machine guns, and hand grenades. See March 2016 statement in support of claim. The question for the Board is whether the Veteran has a bilateral hearing loss disability that is etiologically related to, or aggravated by, an in-service disease or injury. An essential element of a claim for service connection is evidence of a current disability. The Board finds that the competent, credible, and probative evidence is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran was afforded an April 2016 VA audiological examination and the examination report revealed puretone thresholds in decibels recorded as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 10 15 15 Left 5 10 10 15 10 The Veteran’s speech discrimination testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examiner indicated that the Veteran had normal hearing in the right ear and normal hearing in the left ear. Based on the foregoing, the Board finds the evidence shows that the Veteran does not have a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including exposure to loud noises and difficulty hearing. See April 2016 VA examination report. To this extent, the Board finds that the Veteran is competent to report that he has difficulty hearing; however, he has not been shown to be competent to provide a diagnosis of a hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In order for the Veteran’s hearing impairment to be considered a disability for VA purposes, it must meet the criteria provided under current regulations. While the Board sympathizes with the Veteran’s current hearing symptoms; it is unable to provide service connection as the Veteran’s auditory threshold is not 40 decibels or greater in any of the listed frequencies, at least 26 decibels or greater in at least three of the listed frequencies, nor does he have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385. As explained above, the Veteran must have a disability for service connection to be granted. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has bilateral hearing disability for VA purposes. Thus, service connection is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Pseudofolliculitis barbae The Veteran filed a March 2016 claim for service connection for pseudofolliculitis barbae. See March 2016 VA Form 21-526EZ. Service treatment records (STRs) reflect that in September 1978, the Veteran was seen for complaints of bumps on his face. A June 1978 STR indicated the Veteran was placed on a shaving profile and was assessed with mild pseudofolliculitis barbae. A September 1978 ETS (Expiration Term of Service) examination, Report of Medical Examination reflects the Veteran had normal skin with no defects or diagnosis of pseudofolliculitis barbae noted. Post service treatment records do not support that the Veteran has received treatment for pseudofolliculitis barbae or has a diagnosis of pseudofolliculitis barbae. Significantly, a March 2015 VA treatment note indicated the Veteran denied skin discoloration, itchiness, or lesions. An October 2015 VA treatment note indicated that the Veteran denied skin discoloration, itchiness, or lesions and physical examination revealed the Veteran’s skin was dry with no ulcers or rashes. The March 2016 VA skin examiner determined that the Veteran does not have a current diagnosis or finding of pseudofolliculitis barbae. In support of this determination, the examiner acknowledged the Veteran’s 1978 assessment of pseudofolliculitis barbae and noted that a June 1978 STR indicated the Veteran had many consults and techniques for shaving, was assessed with mild pseudofolliculitis barbae, and was placed on shaving profile. The examiner noted the Veteran’s reports that he uses nothing special for his condition and he thinks his face “just got stronger and tolerates shaving better.” The examination report revealed that none of the Veteran’s skin conditions cause scarring (regardless of location), or disfigurement of the head, face or neck. He does not have any benign or malignant skin neoplasms (including malignant melanoma) and he does not have any systemic manifestations due to any skin diseases (such as fever, weight loss or hypoproteinemia associated with skin conditions such as erythroderma). The Veteran has not been treated with oral or topical medications in the past 12 months for any skin condition and has not had had any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran has not had any debilitating and/or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. Physical examination of the Veteran revealed he did not have any infections of the skin and there were no areas of pseudofolliculitis on the Veteran’s face. Upon review of the record, the Board finds that the competent and credible evidence of record does not establish a current diagnosis of pseudofolliculitis barbae. The Board notes that the existence of a current disability at any time during the current appeal period is the cornerstone of a claim for VA disability compensation. Evidence must show that, at some time during the current appeal period, the Veteran has the disability for which benefits are being claimed. Here, however, as noted above, the competent and credible evidence of record does not establish that, at any time during the current appeal period, the Veteran had a diagnosis of pseudofolliculitis barbae. The Board has considered the Veteran’s lay statements. However, the specific issue in this case, the etiology of pseudofolliculitis barbae, falls outside the realm of common knowledge of a lay person. While the Veteran is competent to report having experienced symptoms such as shaving bumps, he is not competent to provide a diagnosis in this case or determine the etiology of his symptoms. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. See Jandreau at 1377, 1377 n.4 (Fed. Cir. 2007). In reaching this conclusion, the Board has also considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim of entitlement to service connection for pseudofolliculitis barbae, that doctrine is not applicable and the claim for service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Tinnitus The Veteran contends that he has tinnitus due to service. In a March 2016 statement in support of claim, the Veteran reported he was exposed to loud noises from firing rifles, machine guns, and hand grenades while in service. He further stated that he has experienced ringing in his ears ever since service. Id. The evidence indicates that the Veteran has tinnitus. The Veteran’s lay assertions describing tinnitus symptoms - noted in written statements of record - are of probative value inasmuch as he, as a lay person, is competent to report observable symptomology such as a ringing sound in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the April 2016 VA examiner found tinnitus was “less likely than not” due to service; however, the Board finds the preponderance of the evidence is in relative equipoise. Thus, affording the Veteran the benefit of reasonable doubt, the grant of service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Hypertension In a July 2018 Appellant’s Brief, the Veteran’s representative requested that the Board remand the claim for increased rating for hypertension because the Veteran’s condition is worse than originally rated and the evidence of record is too old to adequately evaluate the state of the Veteran’s condition. See July 2018 DAV’s Appellant’s Brief. Specifically, the Veteran’s representative stated the Veteran’s March 2016 VA examination is over 27 months old and contemporaneous examination is needed in order to adequately evaluate the Veteran’s condition. Id. As such, the Board finds that remand for VA examination is warranted. The matter is REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, schedule a VA examination to determine the current severity of the Veteran’s service-connected hypertension. Any and all indicated studies deemed necessary by the examiner should be accomplished. (Continued on the next page)   3. After the completion of any action deemed appropriate in addition to that requested above, the Veteran’s claim should be readjudicated. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplement statement of the case, given the opportunity to respond, and the case should be thereafter returned to the Board for further appellate review, if warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel