Citation Nr: 21003654 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-14 142 DATE: January 22, 2021 ORDER The claim for service connection for bilateral hearing loss is denied. REMANDED The claim for an initial compensable disability rating for dermatitis is remanded. FINDING OF FACT The evidence does not show a hearing disability in either ear as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss is not met. 38 U.S.C. §§ 1101, 1110, 1112, 5103; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2003 to December 2003. In connection with this appeal, he testified at a hearing before the undersigned Veterans Law Judge in March 2019 at the Oakland, California, RO. A transcript of that hearing is of record. These issues were previously remanded by the Board for further development in August 2019. Regarding the issue of service connection for bilateral hearing loss, such development was undertaken, and the case is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Additional development is warranted for the claim of an initial compensable disability rating for dermatitis and will be discussed in the Remand portion below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period following discharge from active duty (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claim for service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is the result of acoustic noise exposure during his military service. His DD 214 confirms his military occupational specialty as a motor vehicle operator who was awarded the Rifle Marksmanship Badge. As such, the Board concedes his acoustic trauma during his military service. While the Board concedes military noise exposure, military noise exposure alone is not considered to be a disability. Rather, it must be shown that the noise exposure caused hearing loss to a level that is considered to be a disability by VA regulations. 38 C.F.R. §§ 3.385. Therefore, the first question to be answered is whether the Veteran has a hearing loss disability in either ear as defined in the VA regulations. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent a VA audiological examination in October 2020 pursuant to the August 2019 Board remand. On the authorized VA audiologic evaluation for rating purposes, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 15 15 25 25 LEFT 15 10 10 20 20 Speech recognition testing using the Maryland CNC word list showed 94 percent, bilaterally. The VA examiner opined that the Veteran had right ear hearing loss which was at least as likely as not caused by or a result of an event in military service but that the left ear was within normal limits. The Board finds that the evidence of record shows that the Veteran does not have a bilateral hearing loss disability for VA purposes, despite the October 2020 VA examiner’s positive nexus opinion regarding the right ear. See 38 C.F.R. § 3.385. Simply put, audiometric testing failed to show that the Veteran has a hearing disability in either ear for VA purposes because his auditory thresholds in frequencies in the 500-4000 Hz range are lower than 40 decibels and his Maryland CNC Test score is not less than 94 percent in either ear. Additionally, the decibel loss at three frequencies was not 26 or above. Upon review of the record, the Board is familiar with the Veteran’s lay statements of hearing loss, and acknowledges his noise exposure during his military service, but ultimately the findings of the October 2020 VA examination are dispositive. The above evidence does not establish bilateral hearing loss to the extent recognized as a disability for VA purposes, and the Veteran has not alluded to the existence of any other evidence establishing a current bilateral hearing loss disability. Despite the Veteran’s competent and credible reports of in-service noise exposure, the determination of whether hearing loss constitutes a disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. The provisions of 38 C.F.R. § 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Hence, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. As such, the Veteran does not meet the VA requirements for hearing loss. Brammer, 3 Vet. App. at 225. Accordingly, the appeal of the claim for to service connection for bilateral hearing loss is denied. REASONS FOR REMAND The claim for an initial compensable rating for dermatitis is remanded. The Veteran contends that the severity of his service-connected dermatitis is not accurately reflected by the initial noncompensable disability rating. The Veteran’s dermatitis is evaluated under the rating criteria for dermatitis or eczema. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Federal Circuit (Court) has held that depending on the facts of an individual case, even the use of a topical corticosteroid may constitute systemic therapy if it was administered on a large enough scale such that it affected the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). Consequently, the Board is required to make a factual determination whether the use of a topical corticosteroid equates to systemic therapy in each decision. Mere reliance on a box checked on a VA examination form that does not provide a supporting rationale is inadequate. The Court of Appeals for Veterans Claims (Veteran’s Court) subsequently held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs”; rather, compensation is available for “all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” See Warren v. McDonald, 28 Vet. App. 194, 197 (2016). Most recently, the Veteran’s Court interpreted Johnson and Warren and found that the Board must consider two questions: (1) whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. See Burton v. O’Rourke, No. 16-2037. Here, the Veteran was afforded a VA skin examination in May 2015 where a diagnosis of dermatitis was confirmed. Several topical medications were listed to treat his seborrheic dermatitis such as ketoconazole and desonide topical cream. The Veteran testified at the Board hearing that he was treated with an antibiotic ointment, Teclonex, which was confirmed by private treatment records. VA treatment records obtained pursuant to the Board remand reflect the Veteran has been diagnosed with other skin disorders such as eczema and rosacea. The Veteran also has been prescribed several medications to treat his skin disorders to include Minocycline HCL, Sulfacetamide NA, XNF Ivermectin, Hydrocyzine HCL, and XNF Betameth. However, there is insufficient information in the record to determine whether these medications constitute systemic therapy “like or similar to” a corticosteroid or other immunosuppressive drug. It is also unclear to the Board whether any of these medications were used to solely treat the Veteran’s service-connected dermatitis, and if so, its duration and frequency. Therefore, for these reasons, and in light of the holdings in Johnson, Warren, and Burton, the Board finds that an addendum medical opinion is required. The matters are REMANDED for the following action: Obtain a VA medical opinion regarding the medications used for the Veteran’s service-connected dermatitis from a qualified medical professional. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. For each medication used to treat the Veteran’s skin condition, the VA examiner should indicate whether the medication is topical, corticosteroid, or immunosuppressive and indicate the frequency and duration of the treatment. If the medication is topical, the examiner should address whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition. The VA examiner should also address whether these medications were like or similar to corticosteroids or other immunosuppressive drugs. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, Counsel 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.