Citation Nr: 21069140 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-40 560 DATE: November 17, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for onychomycosis (jungle rot) is remanded. Entitlement to service connection for lichen simplex chronicus (skin disorder on the left scalp) is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to May 1971 and from July 1971 to April 1975. The Veteran had a hearing before the undersigned Veterans Law Judge in May 2018. In September 2018, the Board remanded this matter for additional development. 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to a higher rating due to the severity of his hearing loss, per his March 2014 notice of disagreement. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). VA medical records generally document complaints of, or treatment for, hearing loss, but did not provide sufficient evidence for rating purposes. For example, a November 2011 VA medical record noted that the Veteran complained of difficulty understanding speech and the examiner generally found normal hearing and mild sensorineural hearing, with excellent word recognition ability. Per a February 2013 VA examination, the Veteran's audiometry test results equated to Level I hearing of the right ear and Level I hearing for the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, such findings result in a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran reported being unable to hear the person he is speaking with when in a room full of people. The Board notes that the February 2013 VA examination did not reflect certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or pure tone thresholds of 55 decibels or more from 1000 to 4000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. The Veteran subsequently received a new VA examination in June 2017, which showed audiometry test results equated to Level I hearing of the right ear and Level I hearing for the left ear using Table VI and a noncompensable disability rating using Table VII. 38 C.F.R. § 4.85. The Veteran reported he had a hard time hearing. That VA examination also did not reflect certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or pure tone thresholds of 55 decibels or more from 1000 to 4000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. Following the Veteran's report of worsening hearing loss during his May 2018 Board hearing, a new VA examination was obtained in October 2019. The October 2019 VA examination audiometry test results again equated to Level I hearing of the right ear and Level I hearing of the left ear using Table VI and a noncompensable disability rating using Table VII. 38 C.F.R. § 4.85. The Veteran reported he must turn the television too loud, and his wife must talk louder to him in which she feels very tired. The October 2019 VA examination also did not warrant consideration as an exceptional patter of hearing impairment, as it did not reflect certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, or pure tone thresholds of 55 decibels or more from 1000 to 4000 Hertz. 38 C.F.R. § 4.86. The Board notes that although the VA examinations did indicate some worsening of the Veteran's bilateral hearing loss over the appeal period, his audiometry test results remained within the range for finding Level I hearing of each ear. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including lay evidence noted above. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is effectively reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating REASONS FOR REMAND The claims for entitlement to service connection for: 1. a left knee condition, 2. a right knee condition, 3. pseudofolliculitis barbae (PFB), 4. onychomycosis (jungle rot), 5. lichen simplex chronicus (skin disorder on the left scalp), and 6. hypertension are remanded. The Board previously remanded these claims to obtain VA medical opinions and/or VA examinations to address the service connection contentions. Although new VA medical opinions were obtained in October 2019, the VA medical opinion provider's opinions were inadequate as he generally found only that the claimed disorders were not due to service due to there being no documentation of issues of onychomycosis, PFB, knee disorders, or lichen simplex chronicus while in service. An examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, new VA medical opinions are necessary, which includes consideration of the Veteran's lay statements. As previously noted, during his Board hearing, the Veteran had indicated that he started having knee problems in the 1970s from the physical demands of working on B-52 aircrafts. For his jungle rot, he reported it started in Taiwan in 1968 and was treated with cream. For the left scalp, he reported receiving cream for it in Thailand and that it would recur. He further indicated that he had a shaving profile for PFB in service. The October 2019 VA medical opinion provider also provided an inadequate rationale for the claimed hypertension. The opinion noted the Veteran's reported claims that he was diagnosed with hypertension while he was deployed in 1971 and was prescribed medication that he did not take until after his time in service. The VA medical opinion provider then appears to have based his negative opinion on the February 1975 separation examination not noting any chronic medications for hypertension and a normal blood pressure. Again, the examiner cannot solely rely on absence of medical records corroborating a claim. See Dalton, supra. A new VA medical opinion is necessary. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of any hypertension. The VA medical opinion provider must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's claim that such a disorder began while stationed in Thailand in the 1970s. (See May 2018 Board hearing testimony). In providing the requested opinion, consider the Veteran's description of his in-service treatment and symptoms as well as his post-service treatment and symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported history and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. The claims file should be reviewed. An examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). If the VA medical opinion provider finds that a VA examination is necessary, one should be provided. 2. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of any (a) right knee disorder and/or (b) left knee disorder. The VA medical opinion provider must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's report that his knee pain started in service due to the physical demands of working on B-52 aircrafts. (See May 2018 Board hearing testimony). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. The claims file should be reviewed. An examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). If the VA medical opinion provider finds that a VA examination is necessary, one should be provided. 3. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of the skin disorder claims of (i) pseudofolliculitis barbae, (ii) onychomycosis (jungle rot), and (iii) lichen simplex chronicus (left scalp). The examiner must opine whether any disorder is at least as likely as not related to an in-service injury, event, or disease, including his reports during the Board hearing that he was on a shaving profile in service for PFB, that jungle rot began while stationed in Taiwan, and that he has had recurring left scalp condition since service. (See May 2018 Board hearing testimony). In providing the requested opinion, consider the Veteran's description of his in-service treatment, injury, and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. The claims file should be reviewed. An examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). If the VA medical opinion provider finds that a VA examination is necessary, one should be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.