Citation Nr: 18159248 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 11-18 594 DATE: December 19, 2018 ORDER Entitlement to a compensable rating for hearing loss of the left ear is denied. REMANDED Entitlement to service connection for a skin disability of the feet, to include as secondary to service connected tinea pedis, is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected tinea pedis is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran’s hearing loss of the left ear was at worst level I during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a compensable rating for hearing loss of the left ear Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2016). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). Ratings of a hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denote profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant’s average pure thresholds. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85. The hearing impairment of each ear is considered together to determine the level of hearing loss disability. See 38 C.F.R. § 4.85, Table VII. Here, the Veteran’s hearing loss of the left ear is currently rated as 0 percent disabling (i.e., noncompensable). The Board finds that the preponderance of the evidence is against a finding that the Veteran experiences a level of hearing loss of his left ear which would entitle him to a compensable rating for the disability. The Veteran contends, in essence, that his hearing loss is severe enough to justify an increased rating. However, as indicated above, the rating of hearing loss is generally based on puretone threshold averages and the percent of speech discrimination. 38 C.F.R. § 4.85. The Board notes at the outset that while the Veteran is competent to report his difficulty hearing, he is not competent to opine on what his puretone threshold averages and speech discrimination scores are, as such determinations are medically complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board must look to other evidence, aside from the Veteran’s statements, for competent evidence of his puretone threshold averages and speech discrimination scores in each ear. In September 2011 VA examination, the examiner indicated that the Veteran’s puretone responses were inconsistent, even after re-instruction, and valid audiological test results could not be obtained. The Veteran’s speech discrimination scores were 94 percent in each ear. In an April 2017 VA examination, the Veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 20 LEFT 20 20 20 25 25 The Veteran’s speech discrimination scores were 96 percent in each ear. The examiner indicated an impact to ordinary conditions of daily life, as reported by the Veteran, of requesting that others repeat themselves in conversation. When the test results from the April 2017 VA examination are applied to Table VI of 38 C.F.R. § 4.85, the Veteran’s hearing loss of his left ear is level I. When his level of hearing loss is applied to Table VII, a zero percent evaluation is assigned. The evidence does not indicate that any audiological evaluations showing a more severe level of hearing loss are available. The Board has considered the Veteran’s statements regarding the severity of his hearing loss, and his difficulty hearing others during conversation, and the Board does not discount the difficulties that the Veteran experiences as a result of his hearing loss. However, as noted above, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations and the Board has no discretion in the matter. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the preponderance of the evidence is against a finding for entitlement to a compensable rating for hearing loss of the left ear at any time during the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability of the feet, to include as secondary to service connected tinea pedis is remanded. The Veteran contends that he is entitled to service connection for a skin disability of the feet, to include as secondary to service-connected tinea pedis. The Board finds that the medical evidence of record is insufficient to decide the issue herein, and remand is necessary to obtain a new VA examination and medical opinion. In the Veteran’s report of medical history associated with his May 1972 separation examination, he indicated experiencing foot trouble. The examiner noted that the Veteran had “[f]ungus on both feet, medicines don’t seem to help.” A March 2005 VA podiatry note indicated the Veteran developed a rash to both his hands and feet during his military service and indicated a suspected diagnosis of dyshidrotic eczema, rule out chronic tinea. A punch biopsy of the Veteran’s foot rash was conducted in April 2005 in order to determine the nature of his condition. The results of the biopsy showed subacute spongiotic dermatitis and was negative for fungus. A March 2006 private treatment record indicated that the Veteran’s fungal infection cleared on his feet, but he was now having problems with eczema on his hands and feet. A December 2005 private treatment record indicated a diagnosis of tinea pedis for the Veteran’s rash on his feet. Subsequent private treatment records indicate that the problem persisted through November 2006 and he was seeking additional treatment from VA because his condition had not improved. The Veteran was granted service connection for tinea pedis in October 2006 without a VA examination being conducted. The AOJ indicated that the Veteran had diagnoses of tinea pedis and dermatitis, but did not discuss if the grant of service connection for tinea pedis was inclusive of any other diagnosed skin condition. A November 2006 private treatment record indicated that the Veteran was being treated for dermatitis with little improvement. A December 2006 private treatment record indicated that the Veteran complained of pain over the ball of his left foot for the past one-and-a-half weeks. X-rays showed no fracture and the treating clinician indicated a diagnosis of metatarsalgia of the fore foot. A subsequent private treatment record noted that the Veteran was no experiencing pain on the ball of his right foot, and that use of a metatarsal bar had relieved the pain in his left foot. He was diagnosed with bilateral metatarsalgia and the treating clinician indicated that his condition would not likely get better because it was part of his age. December 2006 through February 2007 private treatment records noted that the Veteran complained of bilateral foot pain. A December 2006 record indicated that Morton’s neuroma syndrome was the most likely diagnosis. He was prescribed Mobic and given physical therapy and shoe inserts. A February 2007 record noted that the Veteran indicated his foot pain was doing much better and he believed the treatment was helping. An April 2007 private treatment record noted tenderness under the tibial sesamoid bilaterally in the Veteran’s feet and diagnosed him with bilateral metatarsalgia, possibly sesamoiditis. In a May 2007 VA dermatology clinic note, the Veteran was diagnosed with dyshidrotic eczema and the treating physician indicated that steroids and keratolytics were stopped due to the Veteran experiencing significant discomfort while walking and standing. In an October 2007 statement, received by VA in January 2008, the Veteran indicated that treatment with a steroid cream for his tinea pedis caused the skin of his feet to thin and resulted in significant foot pain. In a November 2007 statement, received by VA in January 2008, the Veteran filed a claim for “feet deterioration/discomfort secondary to steroids and keratolytics used to treat service-connected tinea pedis.” A January 2008 VA podiatry note indicated that the Veteran stated he had pain in his right foot starting 14 months before due to his treatment for tinea pedis. He described it as a neuropathy type pain that extended up to his knee, and indicated that the pain had also spread to his left foot. The podiatrist stated that from a podiatric standpoint, there was no basis to elicit the Veteran’s claimed pain and referred him to neurology for consideration. In a February 2008 VA examination, the Veteran indicated he experienced bilateral foot numbness and pain, but there were no objective findings of a fungal infection at that time. The examiner rendered a diagnosis of service-connected tinea pedis without objective findings on examination of an active fungal infection. In a March 2009 VA examination indicated that the Veteran was service connected for eczema of the feet not tinea pedis, and stated that tinea pedis is a fungal infection of the feet and not related to eczema. The examiner indicated that anti-fungal treatment does not thin the skin and that any thinning of the skin on the Veteran’s feet was normal for his age. In a May 2011 VA examination, the examiner diagnosed the Veteran with service-connected bilateral tinea pedis with medical therapy. The examiner noted that the Veteran had continued to have recurrent episodes involving scaling, itching, and blistering since his rash began in 1970, and that it was worse in the summertime and especially at night. An August 2012 VA dermatology clinic note indicated that the Veteran had a long-standing history of eczematous dermatitis of the bilateral hands and feet, with an April 2005 biopsy showing subacute spongiotic dermatitis and patch testing in June 2011 that was negative. The dermatologist also indicated that the Veteran was being treated for a possible erythromelalgia component. The dermatologist indicated an assessment of dermatitis NOS/possibly dyshidrotic eczema/possible erythromelalgia. An August 2013 VA dermatology clinic note indicated an assessment of dyshidrotic eczema, and the dermatologist prescribed urea cream that the Veteran could use to decrease the thickness of the skin on his heels. An October 2015 dermatology clinic note indicated that the Veteran had a history of psoriasis and punctate palmoplantar keratoderma. An April 2017 VA examination indicated that the Veteran had been previously diagnosed with spongiotic dermatitis and tinea pedis. The examiner indicated that dermatitis covered a total body area of approximately five percent, and that infections of the skin did not cover any of the Veteran’s total body area. The examiner indicated that there were no objective findings for tinea pedis of the bilateral feet. Accordingly, the record reflects that the Veteran has been diagnosed with numerous skin conditions other than tinea pedis which affect his feet, but no adequate opinion exists concerning whether any such condition is related to his active duty service or a service-connected disability. The Board notes that the Veteran indicated from the onset of his service-connection claim for tinea pedis that his symptoms have been constant and chronic since approximately 1970. While the examiner noted in the Veteran’s separation examination that he had fungus on both feet, the examiner also indicated that medicines, presumably those specific to treating foot fungus, did not seem to help. This would indicate the potential that some other condition may have been responsible for the Veteran’s symptoms. Further, the Veteran’s service treatment records do not document any specific testing to determine the nature of the Veteran’s foot problems. Therefore, an examination is necessary on remand to determine any current skin condition related to the Veteran’s feet, and to provide an opinion regarding the nature and etiology of any such condition present during the course of the instant appeal. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). 2. Entitlement to a rating in excess of 10 percent disabling for service-connected tinea pedis is remanded. The Veteran contends that he is entitled to a rating in excess of 10 percent disabling for his service-connected tinea pedis, as he has taken systemic medicinal treatment on a constant or nearly constant basis for a period of 12 months during the period on appeal. In regard to the definition of systemic therapy, the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), reversed the judgment of the United States Court of Appeals for Veterans Claims (Court) in Johnson v. McDonald, 27 Vet. App. 497 (2016). At issue in Johnson v. Shulkin, was the question of whether the criteria for a 60 percent rating under Diagnostic Code 7806, which requires “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs,” is inclusive of topical corticosteroids. In reversing the Court’s decision in Johnson v. Shulkin, 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,” and 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.’” According to the Federal Circuit, 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. Notably, because “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. See 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 that are like or similar to corticosteroids or other immunosuppressive drugs. Id. Indeed, the VA Adjudication Procedures Manual (M21-1) now defines “systemic therapy such as corticosteroids or other immunosuppressive drugs” as “any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder.” M21-1, Pt. III, Subpt. iv, Ch. 4, Sec. L(1)(f) (updated May 14, 2018). The record indicates that the Veteran has been prescribed numerous medicinal treatments related to skin conditions that affect his feet, including but not limited to the instances described below. A November 2006 private treatment record indicated that the Veteran had been treated with systemic triamcinolone. A May 2011 VA examination indicated that the Veteran was prescribed Dapsone for a skin infection. An August 2012 VA dermatology note indicated that the Veteran took Dapsone from August 2010 to September 2011 and tried a short course of Soriatane in the past, but was not interested in systemic treatments at that time. An April 2017 VA examination indicated that the Veteran was prescribed Acitretin, an immunosuppressive retinoid, on a constant or near-constant basis. The examiner noted that dermatology records indicated the Veteran began taking Acitretin on approximately September 16, 2015 (i.e., six weeks prior to October 28, 2015). However, the record is unclear as to whether the medicinal treatments prescribed to treat the Veteran’s foot conditions were considered systemic and as to whether the treatments related to a service-connected disability. The Board notes that, as an examination is necessary on remand to determine whether any of the Veteran’s diagnosed skin conditions of the feet are related to his active military service, the issue of entitlement to an increased rating is intertwined with the issue of entitlement to service connection for a foot condition. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Therefore, a medical opinion is necessary on remand to analyze the Veteran’s treatment history related to any service-connected skin condition of the and indicate whether any documented treatment was considered systemic therapy and to further indicate whether any such therapy related to a service-connected condition. The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After all newly obtained records have been associated with the claims file, arrange for an examination with an appropriate examiner to determine the nature and etiology of any currently diagnosed foot condition, and to determine whether any medication prescribed to treat any such condition is considered systemic therapy. The examiner should be provided with a copy of the entire claims file, including this remand, for review, and should indicate that such review was completed in the examination report. The examiner should specifically address the evidence outlined above, as well as any additional relevant medical and lay evidence of record. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed foot condition, to include any foot condition diagnosed during the course of this appeal, is related to the Veteran’s active military service. For any such condition which is determined to not be directly related to his active military service, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the condition was caused by or aggravated beyond its natural progression by a service-connected disability, to include tinea pedis. The examiner is further asked to provide an opinion as to whether the Veteran’s service-connected tinea pedis, or any currently diagnosed foot condition found to be related to his active military service or caused or aggravated beyond its natural progression by a service-connected disability, was treated by systemic therapy during the course of the instant appeal. To the extent possible, the examiner should identify each medication used to treat any such condition and indicate whether the medication is considered systemic therapy, and further indicate how long the Veteran used any such systemic therapy. The examiner should also identify, to the extent possible, which diagnosed foot condition any identified systemic therapy was prescribed to treat. The examiner must provide a clearly stated rationale for any opinion expressed. If the requested opinion cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and   discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel