Citation Nr: 21065622 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-46 332 DATE: October 26, 2021 ORDER Entitlement to an initial disability rating of 60 percent for dermatitis and psoriasis from June 28, 2016 to June 23, 2021 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial disability rating of 10 percent, but no higher, for hypertension is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. From June 28, 2016 to June 23, 2021, the symptoms of the Veteran's service-connected dermatitis more nearly approximated more than 40 percent of the entire body or more than 40 percent of exposed areas affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. Throughout the appeal period, the Veteran's hypertension symptoms required medication and more nearly approximated diastolic pressure readings of predominantly 100 or more and systolic pressure readings of predominantly 160 or more. However, the Veteran's hypertension symptoms have not more nearly approximated predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more. 3. The preponderance of the evidence reflects that the Veteran has not had bilateral hearing loss for VA purposes at any time during the current appeal or approximate thereto. CONCLUSIONS OF LAW 1. From June 28, 2016 to June 23, 2021, the criteria for an initial disability rating of 60 percent for dermatitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Code (DC) 7806. 2. Throughout the appeal period, the criteria for an initial disability rating of 10 percent, but no higher, for hypertension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.104, DC 7101. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to September 1994. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted the claims of service connection for dermatitis and hypertension, both with noncompensable evaluations, effective June 28, 2016, and denied the claim of service connection for bilateral hearing loss. The Veteran timely appealed these matters. In a November 2017 rating decision, the Agency of Original Jurisdiction (AOJ), increased the evaluation for service-connected dermatitis to 10 percent, effective November 16, 2017. In July 2020, the AOJ increased the evaluation for service-connected dermatitis to 60 percent, effective June 23, 2021. As the Veteran has not indicated satisfaction with these disability ratings, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In July 2020, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In March 2021, the Board remanded the matters for further development, to include obtaining a VA examination for the Veteran's service-connected dermatitis and obtaining outstanding medical treatment records. The AOJ has substantially complied with the Board's March 2021 remand instructions by sending the Veteran a VA Form 21-4142, obtaining outstanding VA treatment records, and as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim for a higher initial disability rating for dermatitis. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Veteran submitted a Decision Review Request: Supplemental Claim (VA Form 20-0995) in July 2021 requesting an earlier effective date for the grant of the 60 percent evaluation for service-connected dermatitis. However, entitlement to an earlier effective date for the increase in the evaluation of dermatitis from 10 to 60 percent is not separate and distinct from the increased rating claim, but rather an aspect of the claim on appeal, which seeks the highest rating possible for the entire appeal period. Disability ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to a higher initial disability rating for dermatitis and psoriasis The Veteran's service-connected dermatitis and psoriasis are evaluated under DC 7806 and rated noncompensable from June 28, 2016, 10 percent from November 16, 2017, and 60 percent from June 23, 2021, thereby creating staged ratings. 38 C.F.R. § 4.118. VA has amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). Under the former version of DC 7806, a 10 percent rating required 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 intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating required 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 be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating required that 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 be required during the past 12-month period. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." DC 7806 continues to apply to dermatitis or psoriasis, but is rated under the General Rating Formula for the skin. Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following are present: characteristic legions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 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. 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. Warren v. McDonald, 28 Vet. App. 194 (2016). In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that "systemic" is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court discussed two ways that a treatment could be shown to be systemic: (1) the method by which the treatment works to treat the medical condition, and (2) the side effects that are possible or actually experienced as a result of the treatment. During an April 2017 VA examination, the Veteran reported that he experienced a rash predominantly on his hands, slightly on his feet, and intermittently on his elbows. The examiner indicated that the Veteran used Cordran tape for less than six weeks in the past twelve months and used Neosporin and Watkins salve constantly or near constantly for the past 12 months. On examination, the Veteran's dermatitis affected his total body area and his exposed area less than five percent. During a November 2017 VA examination, the Veteran reported that he was prescribed a steroid taper and Cordran tape for his dermatitis symptoms in October 2017. He additionally noted that his hands/fingers, forearms, elbows, knees, inner thighs, shins, and feet can be affected at any given time, and that he gets flare-ups of his symptoms two to four times a year. The examiner indicated that the Veteran took prednisone for less than six weeks over the past 12 months and used Cordran tape constantly or near constantly for the past 12 months. On examination, the Veteran's dermatitis affected his total body area five to less than 20 percent and his exposed area less than five percent. In a February 2018 statement, the Veteran indicated that he experienced breakouts and flare-ups of his dermatitis several times a year that were widespread over his whole body. In October 2017 he was prescribed a 12-day prescription of Prednisone for his dermatitis symptoms, in December 2017 he was prescribed a six day pack of Methylprednisolone, and in February 2018 he was prescribed a 12-day prescription of Prednisone. The Veteran's dermatitis was widespread all over his body during these flare-ups. He additionally noted that in December 2017 he was prescribed hydrophilic top cream, triamcinolone acetonide cream, clobetasol propionate ointment, urea, and oral medication of Montelukast and Hydroxyzine HCL. In a May 2018 statement, the Veteran reported that he was prescribed a 12-day pack of Prednisone in February 2018 and two six day packs of Methylprednisolone in March 2018. In April 2018, he began to use Methotrexate, which his treating physician assistant told him is an immunosuppressive drug. In a November 2018 statement, the Veteran reported he has been on constant systemic therapy for his skin condition for 12 months. He noted that he was given a six-month prescription of Methotrexate. The Veteran experienced a flare-up on his hands in October 2018 for which he was prescribed a six-day Methylprednisolone treatment and Cordran tape. In a February 2019 statement, the Veteran reported he was prescribed a six-day Methylprednisolone treatment in January 2019 for his dermatitis flare-up. In an April 2019 statement, the Veteran indicated that he was given a six month prescription of Methotrexate and provided with a refill for hydrophilic cream for his dermatitis symptoms. In an October 2019 statement, the Veteran reported he was given a six-month prescription of Methotrexate in September 2019 and prescribed a six-day pack of Methylprednisolone in October 2019 for his dermatitis symptoms on his feet and fingers. In a December 2019 statement, the Veteran noted that he was prescribed a six-day pack of Methylprednisolone for a flare-up of his dermatitis symptoms. In a June 2020 statement, the Veteran indicated that he was prescribed a six-day pack of Methylprednisolone for his dermatitis flare-ups on his hands, fingers, and feet. In a July 2020 statement, the Veteran reported that he was prescribed Methotrexate for three months. During a July 2020 Board hearing, the Veteran testified that his dermatitis was spread over 75 percent of his body or more depending on the outbreak. In a September 2020 statement, the Veteran indicated that he received a 90-day refill of Methotrexate and a six-day pack of Methylprednisolone. In a January 2021 statement, the Veteran noted that he was prescribed two six-day packs of Methylprednisolone in December 2020 for a dermatitis flare-up. He also received a refill for Methotrexate for 90 days and a prescription for Cordran and flurandrenolide tape. In a March 2021 statement, the Veteran reported that he was provided refills for Methylprednisolone and Methotrexate. For the following reasons, a 60 percent disability rating for the Veteran's service-connected neurodermatitis and psoriasis is warranted from June 28, 2016 to June 23, 2021. The evidence is at least evenly balanced as to whether the Veteran's dermatitis symptoms more nearly approximate the symptoms contemplated by a 60 percent disability rating under DC 7806 from June 28, 2016 to June 23, 2021. The Veteran's competent and credible statements throughout the appeal period, in conjunction with his testimony during his July 2020 Board hearing, establish that his service-connected neurodermatitis and psoriasis affected approximately at least 40 percent of his entire body. Moreover, the Veteran has provided competent and credible evidence of constant or near-constant systemic therapy for his dermatitis symptoms over the past 12-month period and since the grant of service connection for dermatitis. Prednisone and Methylprednisolone are corticosteroids, and Methotrexate is an immunosuppressant. Dossey v. McDonald, No. 14-4072, 2016 U.S. Vet. App. Vet. Claims LEXIS 1306 (Aug. 26, 2016) (referencing a treatment note indicating that the veteran was "immunosuppressed on [Methotrexate] and Prednisone); DORLANDS ILLUSTRATED MEDICAL DICTIONARY 1450 (29th ed. 2000), cited in Williams v. Nicholson, No. 05-2359, 2007 U.S. App. Vet. Claims LEXIS 1447 (Sept. 28, 2007); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Therefore, throughout the appeal period, the symptoms of the Veteran's service-connected neurodermatitis and psoriasis more nearly approximate the criteria required for a 60 percent disability rating. Additionally, there is a lack of evidence showing that the Veteran's skin disability symptoms suddenly became worse on the date of the June 2021 VA examination, particularly in light of the Veteran's competent and credible statements regarding the areas of his body affected by his skin disability and his use of corticosteroids and an immunosuppressant throughout the appeal period. In this regard, "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Court has also recognized that some conditions, such as skin disorders, by their inherent nature, wax and wane, and, accordingly, are sometimes active and other times not. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). For the foregoing reasons, the Veteran's service-connected neurodermatitis and psoriasis symptoms have more nearly approximated the criteria for an initial 60 percent disability rating from June 28, 2016 to June 23, 2021. Entitlement to an initial disability rating of 60 percent for service-connected neurodermatitis and psoriasis from June 28, 2016 to June 23, 2021 is warranted. This is the maximum schedular rating allowable under DC 7806, as well as the rating requested by the Veteran for the entire appeal period. Additional rating considerations, to include separate or higher disability ratings, are not reasonably raised by the record. Entitlement to a compensable disability rating for hypertension The Veteran's hypertension has been assigned an initial noncompensable evaluation from June 28, 2016 under 38 C.F.R. § 4.104, DC 7101. Under DC 7101, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. In a December 2015 VA treatment note, the Veteran's blood pressure readings ranged from 142/81 to 179/75. The Veteran received a VA hypertension examination in April 2017. At that time, his blood pressure readings were 150/97, 150/92, and 152/94. In addition, the Veteran was continuously taking two medications for the control of his blood pressure. In an October 2017 VA treatment note, the Veteran's blood pressure reading was 122/88. In a December 2017 VA treatment note, the Veteran's blood pressure reading was 120/84. In a June 2018 VA treatment note, the Veteran's blood pressure reading was 135/86. In a December 2018 VA treatment note, the Veteran's blood pressure reading was 154/92. In a June 2019 VA treatment note, the Veteran's blood pressure reading was 118/72. For the following reasons, a 10 percent initial disability rating is warranted for hypertension. A 10 percent initial evaluation is warranted as the evidence of record shows that, throughout the appeal period, the Veteran's diastolic pressure readings more nearly approximated predominantly 100 or more, and the Veteran was on continuous medication to control his blood pressure. However, while the Veteran was on continuous medication to control his hypertension, the evidence of record does not demonstrate any findings of diastolic pressure of 110 or more, or systolic pressure of 200 or more. McCarroll v. McDonald, 28 Vet. App. 276-77 (2016) (Board may properly consider ameliorative effects of blood pressure medication). Thus, the criteria for an initial disability rating of higher than 10 percent are not met. For the foregoing reasons, the criteria for an initial disability rating of 10 percent for hypertension are met. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he suffers from bilateral hearing loss that is related to acoustic trauma he experienced in-service as a member of Security Forces. A hearing loss disability is defined for VA compensation purposes using audiologic testing involving puretone frequency thresholds and speech discrimination criteria. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court, in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including evidence pertinent to service, establishes that the disease was incurred in service. For the following reasons, the Veteran does not have a current disability of bilateral hearing loss as defined for VA compensation purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). In April 2017, a VA audiologist evaluated the Veteran and determined that the Veteran had normal hearing in both ears, and he did not have a diagnosis of bilateral hearing loss for VA purposes based on his 100 percent speech recognition scores on the Maryland CNC test, as well as the following puretone auditory threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 10 10 LEFT 5 10 0 5 15 The Board notes that the Veteran underwent VA employee hearing screenings from 2017 to 2019. However, while those examinations included puretone audiometry tests, none of them included speech recognition tests, and the examiners did not indicate that speech recognition tests were not appropriate. Thus, those evaluations are not valid for adjudication of the hearing loss claim. See 38 C.F.R. 4.85(a); clarification of such medical reports is required only when it "is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight." Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 267-70 (2011) (specifically limiting this duty to situations where "the missing information is relevant, factual, and objective-that is, not a matter of opinion" but also noting that, when it is applicable, the duty to clarify "includes medical examination reports of all kinds"). As the other evidence of record is sufficient to decide the claim, as shown above, and the Veteran does not contend his bilateral hearing loss has worsened since the date of his April 2017 VA examination, clarification of these reports is not required. In order to qualify for bilateral hearing loss for VA purposes, the Veteran is required to meet the regulatory threshold for hearing loss as defined in 38 C.F.R. § 3.385. Even though veterans are competent to testify as to some medical matters, see Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), VA has determined that hearing loss can only be considered a disability if it meets the audiometric or speech recognition scores of the Maryland CNC required by 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385). Consequently, the Veteran does not meet the current disability requirement for bilateral ear hearing loss as his speech recognition score was not less than 94 percent, and he did not have an auditory threshold of 40 decibels at any frequency or a threshold of 26 or more decibels at three frequencies. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. 38 U.S.C. § 1110. The provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation. Hensley, 5 Vet. App. at 158 (1993). Therefore, there can be no entitlement to service connection for bilateral hearing loss where, as here, there is an absence of evidence that the Veteran currently has at any time had bilateral hearing loss to an extent recognized as a disability under the governing regulation. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, Associate 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.