Citation Nr: 1817019 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 15-17 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial increased rating for post-inflammatory hypopigmentation, secondary to seborrheic dermatitis (skin disorder), currently evaluated as 30 percent disabling, to include the issue of a rating in excess of 10 percent prior to August 15, 2017, and to a compensable rating prior to September 2013. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from April 1965 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board remanded the case in April 2017 for further development. The Veteran testified at a November 2015 videoconference hearing before Veterans Law Judge (VLJ) Kathleen Gallagher. A copy of the transcript is of record. In November 2017, the Veteran was notified that VLJ Gallagher had retired and was no longer with the Board. The Veteran declined the option to appear for another Board hearing. 38 C.F.R. § 20.717 (2017). A September 2017 rating decision granted an increased rating of 30 percent for the Veteran's skin disorder from August 15, 2017. However, the Board finds that this represents only a partial grant of benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the issue of entitlement to an increased rating for a skin disorder remains in appellate status. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to September 16, 2013, the Veteran's skin disorder affected less than 5 percent of his entire body and exposed areas; and has required use of topical corticosteroids and antihistamines, but no systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. From September 17, 2013 to August 14, 2017, the Veteran's skin disorder affected more than 5 percent and less than 20 percent of his entire body and exposed areas; but has not required systemic therapy such as corticosteroids or other immunosuppressive drugs. 3. From August 15, 2017, the Veteran's skin disorder affected more than 20 percent and less than 40 percent of his entire body and more than 5 percent and less than 20 percent of his exposed areas; and has required use of topical corticosteroids, but no systemic therapy such as corticosteroids or other immunosuppressive drugs. 4. Throughout appeal period, the Veteran's bilateral hearing loss is not manifested by worse than level II hearing in the right ear and level II in the left ear. CONCLUSIONS OF LAW 1. Prior to September 16, 2013, the criteria for a compensable schedular rating for a skin disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7906 (2017). 2. From September 17, 2013 to August 14, 2017, the criteria for a rating in excess of 10 percent for a skin disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7906 (2017). 3. From August 15, 2017, the criteria for a rating in excess of 30 percent for a skin disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7906 (2017). 4. The criteria for a compensable schedular rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Skin Disorder The Veteran's service-connected skin disorder is rated as noncompensable from the November 29, 2012 effective date of the grant of service connection, as 10 percent disabling from September 17, 2013, and as 30 percent disabling from August 15, 2017, under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and no more than topical therapy is required during the past 12-month period. A 10 percent rating requires that 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 be affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires more than 40 percent of the entire body, or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). In Johnson v. Shulkin, No. 16-2144 (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.'" Id. at 7. 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. Id. at 8. In an April 2013 VA examination, the Veteran was diagnosed with post-inflammatory hypopigmentation secondary to contact dermatitis/seborrheic dermatitis, which was treated with antihistamines, topical corticosteroids, and other topical medications. The Veteran's skin disorder did not cause scarring or disfigurement of the head, face, or neck. The examiner found that the Veteran's skin disorder affected less than 5 percent of his entire body and exposed areas. There was no functional impact of the Veteran's ability to work. In a September 2013 referral form by private medical provider, the Veteran was diagnosed with seborrheic dermatitis, which affected his scalp, face, and lower legs. In a January 2015 VA examination, the Veteran was diagnosed with seborrheic dermatitis, contact dermatitis, and xerotic eczema/post-inflammatory hyperpigmentation, which was treated with topical corticosteroids. The Veteran's skin disorder did not cause scarring or disfigurement of the head, face, or neck. The examiner found that the Veteran's skin disorder affected more than 5 percent and less than 20 percent of his entire body and less than 5 percent of his exposed areas. The examiner remarked that the referral form noted that the Veteran's contact/seborrheic dermatitis affected more than 5 percent and less than 20 percent of his entire body and exposed areas. In an August 2017 VA examination, the Veteran was diagnosed with post-inflammatory hypopigmentation secondary to contact/seborrheic dermatitis, which was treated with topical corticosteroids. The Veteran's skin disorder did not cause scarring or disfigurement of the head, face, or neck. The examiner found that the Veteran's skin disorder affected more than 20 percent and less than 40 percent of his total body and more than 5 percent and less than 20 percent of his exposed areas. There was no functional impact of the Veteran's ability to work. Consistent with a noncompensable rating under Diagnostic Code 7806, the preponderance of the evidence shows that the Veteran's skin disorder has affected less than 5 percent of his entire body and exposed areas and only required topical therapy prior to September 16, 2013. The competent evidence does not show that the Veteran's skin disorder affected more than 5 percent of his entire body or exposed areas, or required systemic therapy such as corticosteroids or other immunosuppressive drugs. As a result, the Board finds that the evidence does not support a compensable rating from November 29, 2012 to September 16, 2013. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Consistent with a 10 percent rating under Diagnostic Code 7806, the preponderance of the evidence shows that the Veteran's skin disorder has affected more than 5 percent and less than 20 percent of his entire body and exposed areas and only required topical therapy from September 17, 2013 to August 14, 2017. The competent evidence does not show that the Veteran's skin disorder affected more than 20 percent of his entire body or exposed areas, or required systemic therapy such as corticosteroids or other immunosuppressive drugs from September 17, 2013 to August 14, 2017. As a result, the Board finds that the evidence does not support a rating in excess of 10 percent from September 17, 2013 to August 14, 2017. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Consistent with a 30 percent rating under Diagnostic Code 7806, the preponderance of the evidence shows that the Veteran's skin disorder has affected more than 20 percent and less than 40 percent of his entire body and exposed areas and only required topical therapy from August 15, 2017. The competent evidence does not show that the Veteran's skin disorder affected more than 40 percent of his entire body or exposed areas, or required systemic therapy such as corticosteroids or other immunosuppressive drugs from August 15, 2017. As a result, the Board finds that the evidence does not support a rating in excess of 30 percent from August 15, 2017. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Accordingly, the Board finds that entitlement to a compensable rating prior to September 16, 2013, a rating in excess of 10 percent from September 17, 2013 to August 14, 2017, and a rating in excess of 30 percent from August 15, 2017 for a skin disorder are not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent are based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability due to a hearing loss the provisions of 38 C.F.R. § 38 C.F.R. § 4.85 establish eleven auditory acuity levels from Level I for essentially normal acuity to Level XI for profound deafness. Tables VI and VII as set forth in 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. "[T]he assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). A May 2013 rating decision granted entitlement to service connection for bilateral hearing loss. The Veteran appealed for an increased rating for his hearing loss. At an April 2013 VA examination, an audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 35 25 30 30 LEFT 30 25 25 30 28 Speech discrimination scores were 84 percent in the right ear and 88 percent in the left ear. The functional impact of the Veteran's hearing loss included difficulty understanding spoken words and phrases when background noise is present and the speaker is not in front of him. The Veteran was afforded an April 2017 audiological examination. An audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 35 40 30 35 LEFT 35 35 35 40 36.25 Speech recognition scores were 100 percent in the right ear and 96 percent in the left ear. The functional impact of his hearing loss included difficulty understanding the television and another person when talking. In a November 2017 statement, the Veteran reported difficulty comprehending the television and people he spoke with and requiring people to repeat themselves. The Veteran also stated that when he is tired, he noticed that his hearing was low to the point that his understanding of words was affected. The Veteran underwent private audiological examinations in November 2015 and November 2017. The November 2015 examination was conducted by N. A. Penaflor, M.D., who is not an audiologist, and did not include speech discrimination scores. It is unclear who conducted the November 2017 examination and it did conduct a speech discrimination test using the Maryland CNC word list. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See 38 C.F.R. § 4.85 (2017). Here, both private audiological examinations did not include a controlled speech discrimination test using the Maryland CNC word list and the November 2015 examination was not conducted by an audiologist. As such, the Board finds that these test results are not appropriate for rating purposes. Stefl v. Nicholson, 21 Vet. App. 120, 123 - 24 (2007). Applying the values of the May 2013 audiological examination to the rating criteria results in a numeric designation of Level II in both ears. See 38 C.F.R. § 4.85, Table VI. Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. Applying the values of the April 2017 audiological examination to the rating criteria results in a numeric designation of Level I in both ears. See 38 C.F.R. § 4.85, Table VI. Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. It bears repeating that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Even after considering the Veteran's reports as to the effects of his hearing loss on his daily life, to include difficulty hearing others and complications with hearing aid use, the evidence shows that the schedular rating criteria for a compensable rating are not met. Accordingly, the Board finds that the audiometric findings preponderate against entitlement to a compensable schedular rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Staged ratings are not appropriate in light of the evidence and the law governing this rating. ORDER Entitlement to an initial increased rating for post-inflammatory hypopigmentation, secondary to seborrheic dermatitis (skin disorder), currently evaluated as 30 percent disabling, to include the issue of a rating in excess of 10 percent prior to August 15, 2017, and to a compensable rating prior to September 2013, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs