Citation Nr: 18158407 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-60 784 DATE: December 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for major depression is granted. Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. Entitlement to an effective date earlier than October 21, 2013 for the grant of service connection for pseudofolliculitis barbae (PFB) is denied. FINDINGS OF FACT 1. Bilateral hearing loss for VA purposes has not been established at any time during the pendency of the appeal. 2. The preponderance of the evidence does not support a finding that the Veteran’s tinnitus is related to service. 3. The Veteran’s diagnosed major depressive disorder is proximately due to, or aggravated by, his service connected PFB. 4. The Veteran’s pseudofolliculitis barbae has affected less than 5 percent of the exposed area of his body, and has not required topical or systematic medication during the appeal period. 5. The Veteran’s claim of service connection for pseudofolliculitis barbae was received on October 21, 2013; and, there was no pending claim, formal or informal, prior to October 21, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R § 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R § 3.102, 3.303, 3.310. 4. The criteria for entitlement to a compensable evaluation for pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. 5. The criteria for an effective date earlier than October 21, 2013, for the grant of service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1976 to February 1979. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Sensorineural hearing loss and tinnitus are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus as a result of noise exposure during active service. The Board finds the evidence of record does not support a finding of service connection for bilateral hearing loss or tinnitus. A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385. In June 2013, the Veteran submitted a lay statement in which he described long exposure to loud noises as a radio operator in Germany. He stated that during service, he experienced a buzzing and ringing in his ears that he did not acknowledge at the time. He further stated that over time, his hearing has worsened to include frequent ear aches and hearing things that were not said. On VA examination in September 2013, the Veteran’s hearing could not be tested. The examiner remarked on multiple occasions that the test results were exaggerated, which prevented him from determining the nature and etiology of any existing hearing loss disability. Put another way, no opinions could be made based on those results for the etiology of either bilateral hearing loss or tinnitus. The examiner did remark that the Veteran had bilateral sensorineural hearing loss. However, emphasis was placed on the finding that there is no evidence that this diagnosis would meet criteria for a disability for VA purposes. The evidence fails to establish a post-service diagnosis of a hearing loss disability per 38 C.F.R. § 3.385 at any point during or since service. The Veteran has not identified existing audiometric testing results that meet the requirements of that regulation, and the VA examination results were unreliable. While the Board acknowledges the Veteran may have experienced loud noise exposure during service, the evidence does not show current hearing loss for VA purposes. Additionally, while the Veteran’s lay statement described ringing in his ears during service, no such condition was reported during service examinations, and was not reported by the Veteran until his examination in 2013, more than 30 years after service. Further, at the Veteran’s VA examination, he reported that his tinnitus began about 15 years prior, which was years after his separation from service. Accordingly, as the above summarized evidence does not establish the presence of a current, chronic hearing loss disability by VA standards at any time during the pendency of the appeal, service connection must be denied on this basis. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of current disability, there can be no valid claim of service connection). As no link can be made from his current tinnitus symptoms to his active service, and the Veteran’s statements concerning tinnitus have been inconsistent, the Veteran’s claim for service connection for tinnitus must also be denied. Full consideration has been given to the Veteran’s assertions that he has bilateral hearing loss related to service. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence and etiology of a hearing loss disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss as it relates to meeting the requirements of 38 C.F.R. § 3.385 is not the type of condition that is readily amenable to mere lay diagnosis, as the evidence shows that audiometric and word recognition testing is needed. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the Veteran is competent to report diminished auditory acuity, there is no indication that he is competent to provide a diagnosis of sensorineural hearing loss for VA disability purposes, and nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Moreover, as discussed, the credibility and cooperation of the Veteran have been called into question at his VA examination, further reducing the reliability of his assertions as to the severity of any decrease in hearing acuity. The lay evidence does not constitute competent medical evidence and lacks probative value. 3. Entitlement to service connection for an acquired psychiatric disorder The record establishes that the Veteran has been diagnosed as having major depression. He is also service connected for PFB. In an opinion dated in July 2017, a VA psychologist determined that it was as likely as not that the Veteran’s depression was proximately due to his PFB. He indicated that the Veteran’s service connected skin disorder aggravated his depression to a moderate level. Based on the foregoing, service connection for depression is granted. 38 C.F.R. § 3.310(a). 4. Entitlement to an initial compensable rating for pseudofolliculitis barbae The Veteran’s PFB has been assigned a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, dermatitis or eczema. The Veteran contends that his condition warrants a compensable rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). The Board notes that the VA’s new schedule for rating skin disorders, which became effective on August 13, 2018, does not apply under these circumstances because the Veteran filed his claim after October 2008 and he has not submitted any new evidence after August 13, 2018. Under DC 7806, a noncompensable disability rating is warranted for dermatitis or eczema affecting less that 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating is warranted for dermatitis or eczema affecting 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, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum schedular 60 percent disability rating is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Alternatively, the condition is to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-05), depending upon the predominant disability. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit noted that Diagnostic Code 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” Id. at 6 - 7. The Federal Circuit stated “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 antiinfective 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. On VA examination in May 2014, the Veteran reported that he keeps a beard so that he does not usually have breakouts from his PFB. The examiner noted that the Veteran had very few small erythematous papules to the bare area consistent with PFB, but that he had not been treated with oral or topical medications in the past 12 months, and that his condition affected less than 5 percent of his total body area and less than 5 percent of exposed body area. The Veteran has not alleged, and the record does not show, that his PFB has increased in severity since the May 2014 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Rather, the Veteran contends only that a compensable rating is warranted. As such, the Board finds that the examination of record is adequate to adjudicate the Veteran’s increased rating claim, and no further examination is necessary. Here, the evidence shows that the Veteran’s pseudofolliculitis barbae covers less than five percent of the entire body or less than five percent of the exposed areas affected and there is no indication that the Veteran required the use of intermittent systemic therapy. The VA examiner noted that the Veteran had not been treated with oral or topical medications in the previous 12 months. Neither the evidence, the Veteran, nor the representative indicated the contrary. In light of the medical evidence, the Boards finds that the criteria for a compensable rating have not been met. The Board has considered the Veteran’s assertion that a higher disability rating is warranted for his pseudofolliculitis barbae. The Veteran has not submitted any additional evidence that would lead to an entitlement of a higher rating under Diagnostic Code 7806. There is no medical evidence that indicates that the Veteran's skin condition covers at least five percent, but less than 20 percent of the entire body, or at least five percent, but less than 20 percent of the exposed areas affected. There is no indication that the Veteran’s has disfigurement or scaring of the head, face, or neck. Lastly, there is no evidence that the Veteran has used intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and entitlement to a compensable disability rating for pseudofolliculitis barbae is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to an earlier effective date for service connection of pseudofolliculitis barbae Under 38 U.S.C. § 5110(a), the effective date of an award based on an original claim or on a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. The statutory provision is implemented by regulation, which provides that the date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). The Veteran first filed for service connection for PFB in October 2013. The claim was submitted by his representative in the form of a letter. Service connection for PFB was granted in a July 2014 rating decision, which assigned an effective date of October 21, 2013, the date the claim was received. There is no other evidence of record indicating the Veteran filed a claim or that any claim was pending, formal or informal, for service connection of PFB prior to October 21, 2013. See 38 C.F.R. § 3.155 and 38 C.F.R. § 3.160(c). There is no factual or legal basis to assign an effective date before October 21, 2013 for the grant of service connection for PFB. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran has offered no evidence or argument that his claim was submitted prior to October 21, 2013. The RO assigned the earliest effective date legally permitted in this case, which is the date the claim for service connection for PFB was received. No earlier effective date is permitted by law in this case. In summary, the relevant regulations require that the effective date of the award be the date of receipt of the claim (in this case, October 21, 2013) or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The effective date has been appropriately assigned as October 21, 2013, the date of claim. The Veteran’s claim for an earlier effective date is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel