Citation Nr: 21074459 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-02 272 DATE: December 15, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected tinea pedis with onychomycosis is denied. Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due contaminated drinking water at Camp Lejeune, North Carolina, is remanded. Entitlement to service connection for acquired psychiatric disorder, as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran's tinea pedis with onychomycosis has affected less than twenty percent of the total body area, exposed areas are not affected, and the disorder has not required systemic therapy as prescribed by a medical professional. 2. The Veteran's hearing loss has manifested, at worst, a Level VII hearing impairment in his right ear and a Level IV hearing impairment in his left ear. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected tinea pedis with onychomycosis have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7813-7806. 2. The criteria for a disability rating in excess of 20 percent for service-connected bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1956 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) from November 2014 and October 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in December 2019 and January 2021, where they were remanded for additional development. They now return for further appellate review. As to his claim of entitlement to an increased rating for his service-connected tinea pedis with onychomycosis, the Veteran testified at a hearing before the undersigned Veterans Law Judge in (VLJ) April 2018. As to his claims of entitlement to an initial increased rating for his service-connected bilateral hearing loss and service connection for diabetes mellitus and an acquired psychiatric disorder, the Veteran testified at a separate hearing before the undersigned VLJ in October 2019. Transcripts of both hearings are of record. The Board notes that the Veteran's representative has argued, in an October 26, 2021 correspondence, that the most recent Supplemental Statement of the Case (SSOC) dated September 23, 2021 was not received by his office until October 25, 2021, and that VA was now "on notice of a constitutional claim," asserting that this delay has violated the Veteran's procedural due process rights. Other than this correspondence, however, the Veteran's representative has provided no actual evidence that the SSOC was significantly delayed in any way. Moreover, the September 2021 SSOC was also sent to the Veteran, and there is no indication that he did not receive it or that it was similarly delayed. Further, and even assuming that the SSOC was not received until October 25, 2021, the matter was not returned to the Board until November 19, 2021, and not adjudicated until the date on the cover page of this decision. While the Veteran's diabetes-related claims are being remanded, the Veteran and his representative have had ample time to respond to the SSOC as to the matters being adjudicated below, and no request for an extension of time has been received. Thus, the Board does not find that the purported delay argued by the Veteran's representative would have compromised the essential fairness of the adjudication of the below claims. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. 1. A disability rating in excess of 10 percent for tinea pedis with onychomycosis. The Veteran filed an increased rating claim for his service-connected tinea pedis with onychomycosis in September 2013. In the November 2014 rating decision on appeal, the RO denied the Veteran's claim and continued his 10 percent rating. Based on the following, the Board finds that a rating in excess of 10 percent for the Veteran's tinea pedis with onychomycosis is not warranted. The Veteran's tinea pedis with onychomycosis is current evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7813-7806. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case therefore indicates that dermatophytosis (which includes tinea pedis) under Diagnostic Code 7813 is the service-connected disorder and that the disorder is rated under Diagnostic Code 7806 for dermatitis or eczema as the prominent disability. Diagnostic Code 7813 contemplates disability due to dermatophytosis and directs that disabilities such as onychomycosis, or tinea pedis of the feet, be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. In this case, the manifestations of the Veteran's service-connected tinea pedis more closely approximate dermatitis under Diagnostic Code 7806. During the pendency of the appeal, the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 were amended effective August 13, 2018. 83 Fed. Reg. 32583 (July 13, 2018). These amendments revised Diagnostic Codes 7806 and 7813, to state that disabilities evaluated under these diagnostic codes should be evaluated under the General Rating Formula for the Skin. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to August 13, 2018 and both the old and new rating criteria from August 13, 2018, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change effective August 13, 2018, under Diagnostic Code 7806, a 10 percent disability rating is warranted where 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 are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there was constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the August 13, 2018 amended criteria, the General Rating Formula for the Skin provides that a 10 percent rating will be warranted where there is at least one of the following: Characteristic lesions 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, psoralen with long-wave ultraviolet-A light (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 there is at least one of the following: 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, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 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. 38 U.S.C. § 4.118(a). Here, the preponderance of the evidence shows that a higher, 30 percent disability rating for the Veteran's tinea pedis with onychomycosis is not warranted at any time under either version of the regulations. In this regard, the medical evidence of record, including VA examinations afforded during the appeal in November 2014, August 2018, and again in October 2019, reflect that the Veteran's tinea pedis and onychomycosis of the feet affects no more than 5 percent but less than 20 percent of the entire body, with no exposed areas are affected, and with constant or near-constant use of topical medication. His treatment records during the appeal are not in significant conflict with the findings upon VA examination. The Board acknowledges the Veteran's reported use of topical treatment during the appeal, and that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total area affected by his condition. However, Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). 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 anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355. Regardless of whether the Veteran applied topical treatment for durations that would warrant a higher disability rating, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only the area of the feet affected by his condition, which was confirmed by addendum opinions provided by a VA examiner in April 2020 and July 2020. Specifically, the examiner noted that it is reasonable to state that amount of antifungal cream used by the Veteran on his tinea pedis is not on a large enough scale that it affected the body as a whole, as the Veteran reports only minimal improvement but has also only minimal evidence of tinea pedis upon examination, and there is no evidence of side effects from his topical antifungal use. Specific to onychomycosis, the Veteran's anti-fungal creams are not used for this condition. Instead, the Veteran sees a podiatrist for regular nail trimming and debridement. Therefore, the examiner concluded, the Veteran's reported use of topical antifungal creams does not meet the criteria for systemic treatment due to their limited area of application and action, and no systemic side effects. The Board also acknowledges that the Veteran's claim was previously remanded for the Veteran to provide the necessary authorization for VA to obtain private treatment records from a Dr. Seiglman. If, and only if, these records were obtained, was the RO to obtain an additional addendum opinion as to whether the Veteran's treatment can be considered systemic. The Veteran, however, through his representative, only provided duplicative records from Dr. Connelly in April 2021, and noted that no other records were available. The records from Dr. Connolly are not in significant conflict with the findings of the above VA examiners. Thus, at no time during the period on appeal has the Veteran's topical treatment constituted "systemic therapy" for the purposes of Diagnostic Code 7806. The Board has considered whether any other diagnostic codes pertaining to the skin are applicable in this case under both the amended VA regulations and the VA regulations in effect prior to August 13, 2018. Again, the diagnostic codes pertaining to scars and disfigurement are not applicable as the Veteran's disability picture is one of scaling of the skin rather than scarring and the manifestations are not shown to disfigure the head, face, or neck. Therefore, a rating under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805 is not appropriate. While the record reflects that the Veteran may have hyperkeratosis of the feet, this condition is secondary to his diabetes mellitus, which is currently not service-connected, and the Veteran has not been diagnosed with any of the additional disabilities contemplated by Diagnostic Codes 7815-7833. Accordingly, a rating under those diagnostic codes would also not be appropriate. Thus, as the evidence is against a finding that the Veteran's tinea pedis with onychomycosis more nearly approximates the criteria for a higher rating, a rating in excess of 10 percent is not warranted. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss The Veteran was granted service connection for bilateral hearing loss in the October 2018 rating decision on appeal. He appeals the initial 20 percent rating assigned. Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Table VIA can also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Turning to the evidence, the Veteran was afforded VA audiological examinations during the appeal period in October 2018, August 2020, and July 2021. During the October 2018 examination, the Veteran reported that he is unable to hear conversational speech without his hearing aids. The results of the examination, as measured by a puretone audiometry test, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 55 60 54 LEFT 40 50 45 55 48 In addition, speech recognition was 56 percent in the right ear and 80 percent in the left, as measured by the Maryland CNC test. Applying these values to Table VI, The Veteran's right ear is assigned a Level VII Roman numeral designation, and the left ear is assigned a Level III Roman numeral designation. Pursuant to Table VII, these levels correspond with the currently assigned 20 percent rating. During the August 2020 audiological examination, the Veteran again reported difficulty hearing without the use of his hearing aids. The results of the examination, as measured by a puretone audiometry test, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 60 65 65 63 LEFT 55 55 55 60 56 In addition, speech recognition was 72 percent in the Veteran's right ear and 86 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the Veteran's right ear reflects a Level V Roman numeral designation, and his left ear reflects a Level II Roman numeral designation. Pursuant to Table VII, these levels also indicate that the Veteran's hearing loss is not of such severity to warrant a rating higher than the 20 percent currently assigned. However, as there is evidence of a puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) of 55 decibels or more, there is evidence of exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. Using Table VIA, his hearing impairment during this examination still manifests a Level V hearing acuity in the right ear. However, it now manifests a Level IV hearing acuity in the left ear, which is higher than Level II found above and will be used to rate the right-ear hearing impairment. Again, however, these levels also indicate that the Veteran's hearing loss is not of such severity to warrant a rating higher than the 20 percent currently assigned pursuant to Table VII. The Board notes here, however, that the claim was remanded in January 2021 to afford him a new VA hearing loss examination. As noted at that time, it did not appear that a modified performance intensity (PI) function was obtained during the August 2020 examination. VA guidelines direct that, when speech recognition is 92 percent or less in a given ear, a modified performance intensity function should be obtained. See VA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, sec. B, pt. 2, Table 7 (K.C. Dennis ed., 2004) (providing detailed procedures for obtaining a modified performance-intensity function); Revised Audio AMIE Worksheet, Veterans Benefit Administration (VBA) Fast Letter 10-06 (Dep't of Veterans Affairs, February 17, 2010). While the Board now points out that it appears a PI function test was not performed during the above examination due to the Veteran's presentation level being at the max level of the equipment (see page 11 of August 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire), an additional VA examination was nevertheless afforded in July 2021. Again, the examiner indicated that PI function could not be performed on either ear due to the presentation level being at the max level of the equipment or Veteran's tolerance. However, the examiner did opine that the results of the Veteran's examination were valid for rating purposes, and that the inter-test consistency for speech recognition was "good." The results of the examination, as measured by a puretone audiometry test, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 65 60 65 64 LEFT 60 65 60 60 61 In addition, speech recognition was 84 percent in the Veteran's right ear and 80 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the Veteran's right ear reflects a Level III Roman numeral designation, and his left ear reflects a Level IV Roman numeral designation. Pursuant to Table VII, these levels again indicate that the Veteran's hearing loss is not of such severity to warrant a rating higher than the 20 percent currently assigned. However, as there is again evidence of a puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) of 55 decibels or more, there is evidence of exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. Using Table VIA, his hearing impairment during this examination manifested a Level V hearing acuity in the right ear, which is higher than Level III found above and will be used to rate the right-ear hearing impairment, and Level IV hearing acuity in the left ear, which is the same as found above. Pursuant to Table VII, however, this still does not result in a rating higher than 20 percent. There is no other medical evidence in significant conflict with the above. Based upon the foregoing, at no point during the period on appeal does the Veteran's hearing loss disability warrant a rating higher than 20 percent. The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, to include his use of hearing aids, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The audiological examinations discussed above, which are performed without the use of hearing aids, are more probative than the Veteran's lay contentions as to the extent of hearing loss during the appeal. Thus, as the evidence is against a finding that the Veteran's hearing loss more nearly approximates the criteria for a higher rating, entitlement to an increased rating for bilateral hearing loss is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.85. The Board notes as a final matter that the Veteran's representative, in a November 2021 correspondence in reference to all of the issues currently on appeal, requested the credentials of the VA examiner who performed "the C&P examination referenced in the aforementioned SSOC." In order to challenge the competency of an examiner, the Veteran may request curriculum vitae and other information about qualifications of a medical examiner. Francway v Wilkie, 940 F.3d 1304, 1308 (2019). While the Veteran's representative was not specific as to which examination they are referring, the Board notes that, specific to the Veteran's hearing loss claim, the RO did provide the credentials of the VA contract examiner who performed the Veteran's recent VA hearing loss examination. See May 25, 2021 correspondence from Veterans Evaluation Services. Moreover, neither the Veteran nor his representative has provided any argument as to this examiner's credentials or the adequacy of her examination. This correspondence reflects that the contract examiner is a Board-certified audiologist, which does qualify her to perform the examination. There is no indication from the record that any qualification beyond being an audiologist was required to address the severity of the Veteran's service-connected hearing loss. Thus, the Board does not find a basis for remand of the claim to further develop whether the examiner is competent. REASONS FOR REMAND While the Board regrets further delay, the remaining claims must once again be remanded. 1. Service connection for diabetes mellitus. 2. Service connection for acquired psychiatric disorder. In correspondence dated November 10, 2021, the Veteran, through his representative, requested that VA provide information to demonstrate that the VA examiner who provided recent examinations pertaining to the above claims were qualified to conduct the examinations. Accordingly, remand is necessary in order to provide the Veteran and his representative with the VA examiner's qualifications. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). While the Board notes that a medical opinion was also provided by a VA contract examiner in May 2021, that examiner's qualifications were provided with the opinion. Furthermore, the above correspondence also contains an outstanding Privacy Act request that does not appear to have been fulfilled, with the Veteran's representative requesting copies of the VA examinations pertaining to the above claims. Because the claims are being remanded, there is no prejudice to the Veteran in referring his Privacy Act request to the agency of original jurisdiction (AOJ) for appropriate action. Thus, on remand, the AOJ must follow procedures for complying with a Privacy Act request. The matters are therefore REMANDED for the following actions: 1. Provide the Veteran with the records requested in his November 2021 correspondence in accordance with the procedures for complying with a Privacy Act request. 2. Provide the Veteran and his representative with the qualifications (such as a curriculum vitae or similar demonstrable documentation which may be redacted as deemed warranted) of the examiners who provided the examinations pertaining to the Veteran's claim for service connection for diabetes mellitus and an acquired psychiatric disorder as secondary. This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). 3. After the above actions have been completed, afford the Veteran and his representative an appropriate period of time to respond with additional evidence and/or argument. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.