Citation Nr: 20021690 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 10-12 380 DATE: March 26, 2020 ORDER 1. A 40 percent rating for bilateral hearing loss is granted throughout the period for consideration from March 8, 2017 to March 12, 2018; entitlement to a rating in excess of 40 is denied. 2. Entitlement to a rating in excess of 10 percent for tinea versicolor is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss disability is not shown to have had sustained improvement; it is reasonably shown to be manifested by Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left. 2. The Veteran’s tinea versicolor is not shown to have been manifested by involvement of more than 20 percent of the total body or characteristic lesions or scarring, or required use of systemic therapy. CONCLUSIONS OF LAW 1. A 40 percent rating for bilateral hearing loss is warranted for throughout the period under consideration; a rating in excess of 40 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Code 6100, 4.86. 2. A rating in excess of 10 percent for tinea versicolor is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Codes 7806, 7813 (as in effect prior to August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1968 until April 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 Department of Veterans Affairs (VA) rating decision that granted service connection for bilateral hearing loss, rated 0 percent, effective from October 2008; and a November 2013 rating decision that continued a 10 percent rating for tinea versicolor. In May 2010 a hearing was held before a Decision Review Officer (DRO) at the RO, and in October 2011 a Travel Board hearing was held before the undersigned, transcripts of both hearings (addressing the rating for bilateral hearing loss) are in the claims file. Regarding the rating for hearing loss issue, a March 2017 rating decision increased the rating for bilateral hearing loss to 10 percent, effective January 10, 2011. An April 2018 rating decision increased the rating for the bilateral hearing loss to 20 percent, effective March 12, 2018. An October 2018 final Board decision denied an increase in the rating prior to November 12, 2012; increased the rating from November 12, 2012 to March 8, 2017 to 40 percent; and remanded for additional development the matter of the rating for bilateral hearing loss from March 8, 2017. A November 2019 rating decision reduced the rating from 40 to 20 percent, effective March 12, 2018. The Veteran was concurrently pursuing a separate appeal regarding a skin disability rating. In December 2019 (pursuant to his request) a Travel Board hearing was scheduled in the matter for February 6, 2020. Prior to that date, his attorney withdrew the hearing request, and requested a 30-day abeyance for submission of additional evidence. That period of time has lapsed. The appeals are now merged. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155; 38 C.F.R. Part 4. “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for 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. 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 denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average puretone thresholds. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability occurred during such period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Here, as the October 2018 Board decision has already decided the ratings to March 8, 2017, the period for consideration is from that day to the present. 1. Entitlement to increases in the ratings assigned for bilateral hearing loss from March 8, 2017. On March 8, 2017 VA examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 45 70 70 80 66 LEFT 50 70 100 100 80 Speech audiometry revealed speech discrimination ability of 90 percent in the right ear and 78 percent in the left. Under Table VI, the Veteran had level III hearing acuity in the right ear, and level V in the left ear. The Veteran stated that he experiences problems hearing “everyday noises, including horns, conversations, TV, [and the] phone”. The examiner opined that his hearing loss does “impact ordinary conditions of [the Veteran’s] daily life, including the ability to work”. On December 12, 2017 private examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 45 75 75 85 70 LEFT 55 80 95 100 83 Speech audiometry revealed speech discrimination ability of 60 percent in the right ear and 56 percent in the left. Under Table VI, the Veteran had level VII hearing acuity in the right ear. Under Table VIA (because the puretone threshold at each of the four frequencies was 55 decibels or more), he had level VII hearing acuity in the left ear; under Table VI he had level VIII left ear hearing acuity in the left ear (and that was hearing acuity level assigned, as it is more advantageous). The examiner noted that the Veteran reported gradual hearing loss; and that he had worn hearing aids, but did not notice much benefit. On March 12, 2018 VA examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 50 80 80 80 73 LEFT 60 85 105 100 88 Speech audiometry revealed speech discrimination ability of 80 percent in the right ear and 68 percent in the left. Under Table VI, the Veteran had level IV hearing acuity in the right ear. Under Table VIA (because the puretone threshold at each of the four frequencies was 55 decibels or more), he had level VIII hearing acuity in the left ear. The examiner opined that the Veteran’s hearing loss did not “impact ordinary conditions of [his] daily life, including the ability to work”. In a March 15, 2018 VA advisory medical opinion, the examiner opined the Veteran’s March 2018 VA audiological examination results were more reliable than the December 2017 private examination findings, as they were more recent and appeared consistent with previous examination results. On June 6, 2018 private examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 45 75 75 85 70 LEFT 55 80 95 102 83 Speech audiometry revealed speech discrimination ability of 40 percent (“aided”) in the right ear and 40 percent (“aided”) in the left. [38 C.F.R. § 4.85 provides for audiometry to be conducted without hearing aids.] The examiner noted that the Veteran had requested the examination to obtain updated speech recognition scores using Maryland CNC. On August 22, 2019 VA examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 50 90 95 95 83 LEFT 60 95 100+ 100+ 89 Speech audiometry revealed speech discrimination ability of 66 percent in the right ear and 48 percent in the left. Under Table VI, the Veteran had level VIII hearing acuity in the right ear. Under Table VIA (because the puretone threshold at each of the four frequencies was 55 decibels or more), he had level VIII hearing acuity in the left ear. The Veteran reported difficulty hearing the radio, understanding people speaking (if he is not looking at them), and trouble hearing during conversations on the telephone. The August 2019 examiner noted that the puretone threshold findings were “fairly consistent with the previous tests”. However, she commented that she did not consider the speech discrimination scores appropriate for rating, “as there is too much of a decline for a period of one year and the PTA-SRT consistency for the Left ear is poor with a difference of +12dB”. Moreover, the examiner noted that “the Veteran displayed typical malingering behaviors such as extremely slow responses to speech tests, then using rhyming words or completely skipping words with no response”. Considering this, the examiner found the March 2018 exam to be the most reliable and most current test appropriate for rating. Regarding December 2017 and June 2018 private examinations, the August 2019 VA provider acknowledged that the puretone thresholds therein were consistent with prior VA examination findings. Nevertheless, the provider found that the examinations were not adequate for rating purposes, as speech discrimination scores failed to identify whether the recorded version of Maryland CNC was used (as opposed to Monitored Live Voice (MLV)), whether a full 50-word list was used, and if Performance Intensity Function was utilized. Entitlement to increases in the ratings assigned for bilateral hearing loss from March 8, 2017. In essence there two questions before the Board: (1) Whether a rating in excess of 40 percent was warranted prior to March 12, 2018; and (2) Whether the reduction in the rating from that date was proper (and a rating in excess of 20 percent from that date is warranted). At the outset, the Board notes that the prior final Board decision assigned a 40 percent rating for the bilateral hearing loss up to March 8, 2017 and remanded the matter of the rating from that date for development to reconcile the inconsistencies in examination findings on that date and afterwards with earlier findings (as the March 8, 2017 examination found considerable improvement (and the December 2017 private examination did not, particularly considering the speech discrimination scores. As the reduction in the rating by the RO was made effective from the date of a March 12, 2018, and neither the VA nor the private audiometry from 2017 (prior to March 12, 2018) produced findings supporting a rating in excess of 40 percent, the Board finds no reason to disturb the implicit conclusions by the RO that prior to March 12, 2018 a reduction in the rating for the hearing loss from the 40 percent assigned by the Board and a rating in excess of 40 percent were not warranted. The analysis turns to the propriety of the reduction in the rating from 40 to 20 percent, effective from March 12, 2018 and entitlement to a rating in excess of 40 percent. For that we turn to the findings on the March 12, 2018 VA examination when speech discrimination appeared much improved from a December 2017 private examination, on June 2018 private examination, when speech discrimination scores (albeit quite poor) were described as “aided” (when the governing regulation stipulates that the testing must be without use of hearing aids) and the findings on August 22, 2019 examination (when speech discrimination while considerably worse than in March 2018, was nonetheless considerably better than found on June 2018 private examination. What the Board finds quite significant is that the August 2019 VA examiner found the puretone thresholds fairly consistent with previous testing (thus reliable) the examiner found the March 12, 2018 VA speech discrimination scores the most reliable from among those under consideration (citing to evidence of malingering). The Board observes that the puretone thresholds on August 2019 examination reflect an exceptional pattern of hearing loss in the left ear and that the right ear puretone thresholds are within 5 decibels (at 1000 hertz) of showing an exceptional level of hearing impairment in the right ear. Given the inconsistency between the puretone threshold testing (which is deemed reliable) and the speech discrimination testing (which the August 2019 VA examiner exhibits evidence of malingering), the Board finds that because the speech discrimination scores are unreliable, the circumstances warrant rating based on puretone thresholds alone, under Table VIA. [The Board notes that perhaps there might be more-sophisticated testing that might reconcile the inconsistencies found, however, such has not been identified or suggested in this case.] As application of Table VIA to the August 2019 examination findings leads to a finding of Level VII hearing in the right ear and level VIII hearing in the left, which under Table VII warrant a 40 percent rating, the Board finds that sustained improvement in the Veteran’s hearing acuity is not shown; that the reduction of the rating from 40 to 20 percent was not warranted; and that restoration of a 40 percent rating from the march 12, 2018 date of reduction is warranted. Furthermore, as the findings under Table VIA place the Veteran’s hearing acuity within the parameters of the criteria for a 40 percent rating, and the functioning impairment he has described (difficulty understanding people, hearing the radio, and trouble hearing conversations on the telephone) is consistent with those criteria, the Board finds that a rating in excess of 40 percent (or referral for consideration of an extraschedular higher rating) are not warranted. 2. Entitlement to a rating in excess of 10 percent for tinea versicolor. The criteria for rating skin disabilities were revised effective August 13, 2018. Since this claim was pending on August 13, 2018, the new criteria apply if they are more favorable, but the effective date for any increase would be no earlier than August 13, 2018. Tinea is rated under Code 7813, which provides for rating under various Codes depending on the predominant disability. Here, the appropriate Code is 7806 (for dermatitis or eczema) under which a 0 percent rating is assigned for involvement of less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned for involvement of at least 5, but less than 20, percent of the entire body or of exposed areas, or; intermittent systemic therapy such as with corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires involvement of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as with corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent [maximum] rating requires involvement of more than 40 percent of the entire body or exposed areas, or constant or near- constant systemic therapy such as with corticosteroids or other immunosuppressive drugs required during the past 12- month period. 38 C.F.R. § 4.118. Generally, the application of topical corticosteroids does not mean systemic therapy, “particularly if those uses of topical corticosteroids affect only the area to which they are applied.” Johnson v. Shulkin, Fed. Cir. 2017 (2016-2144). Under the criteria in effect prior to August 13, 2018, under Code 7806, a 0 percent rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A topical corticosteroid may constitute systemic therapy under Code7806 based on the factual circumstances of the case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017); 38 C.F.R. § 4.118. Here, as the Veteran is shown to have involvement of less than 5 percent of his entire body and less than 5 percent of exposed areas (face, neck and hands) and use of topical applications with systemic effects is not shown, analysis under the new criteria is more advantageous. The Veteran’s private and VA treatment medical records are silent for complaints and treatment for skin conditions (including tinea versicolor). The Veteran’s claim for an increased rating was received September 14, 2012. In his January 2014 Notice of Disagreement (NOD), the Veteran submitted a statement asserting that his current tinea versicolor symptoms are “consistent with an evaluation of at least 30 percent”. On November 2012 VA examination, the examiner found that the Veteran’s tinea versicolor was asymptomatic. The Veteran reported that tinea versicolor developed while he was stationed in Vietnam, but that he has had no treatment for it to date. He also reported that a rash on his shoulders and back occurs in the summer and resolves in the colder months. The examiner noted that the skin condition did not cause scarring or disfigurement of the head, face and neck. There were no systemic manifestations (such as fever, weight loss or hypoproteinemia) associated with the skin condition. The Veteran had not been treated for any skin condition with oral or topical medications in the past 12 months. He had not had any treatments or procedures, including systemic or topical medications in the past 12 months, for his skin condition. There were no debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On physical examination, it was noted that none of the total body area or approximate total exposed body area (face, neck and hands) were affected by the skin condition. The examiner also found that his skin disability did not impact his functional ability and that there were no remaining physical findings or complications as a result. On October 2016 VA examination, the examiner confirmed the diagnosis of tinea versicolor. The examiner described the skin condition to be erythematous maculopapular (flat area on the skin covered with small bumps) in appearance and located in the trunk area. The examiner noted that the skin condition did not cause scarring or disfigurement of the head, face or neck. The examiner noted that the Veteran had no benign or malignant neoplasms. There were no systemic manifestations (such as fever, weight loss or hypoproteinemia) associated with the skin condition. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. He had not had any treatments or procedures, including systemic or topical medications in the past 12 months, for his skin condition. There were no debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On physical examination, the examiner noted that less than 5 percent of the approximate total body area, and none of the exposed body area (face, neck and hands) were affected by the skin condition. The examiner also found that his skin disability did not impact on functional ability and that there were no remaining physical findings or complications as a result. The Veteran’s VA and private treatment records were also reviewed in detail; however, there were no instances of complaints or treatment for his skin disorder. Specifically, any notation related to skin showed that he had no rashes and that his skin was otherwise intact. While the Veteran is competent to report skin symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to assign a specific level of disability of his skin disorder according to the appropriate diagnostic code 9because that is a determination made based on physical examination of the entire body, and requires medical judgment). He does not cite to supporting medical opinion (private or VA) or medical treatise evidence in support of his claim. Competent evidence concerning the nature and extent of the Veteran’s skin disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. The Board finds that the Veteran’s tinea versicolor is appropriately rated under Code 7806. The record does not show scarring due to tinea versicolor (and the service-connected tinea versicolor does not affect the face, head, or neck). Accordingly, Codes 7800, 7801, 7802, 7804, and 7805 are not for consideration. A rating in excess of 10 percent requires that at least five percent of the exposed or total body areas be affected and/or the use of systemic therapy. Involvement of body area or exposed areas of such extent is simply not shown. In sum, the competent medical evidence of record is more probative than the Veteran’s subjective reports of periodically increased symptomatology. The preponderance of the evidence is against the claim for a rating in excess of 10 percent. The benefit of the doubt rule does not apply, and the appeal in the matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board Norman R. McNeal The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.