Citation Nr: 21076707 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-09 365 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is at least as likely as not related to in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1975 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision denied, in pertinent part, the claims on appeal. The Veteran appealed the Board's May 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted the parties' Joint Motion for Partial Remand (JMPR), which vacated the Board's May 2019 decision with regard to the issues on appeal and remanded that portion of the appeal. In October 2020, the Board remanded the matter to the RO for additional development. The case has now been returned to the Board for further appellate action. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks service connection for bilateral hearing loss, which he contends is due to hazardous noise exposure during his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current hearing loss disability, evidence shows that hazardous noise exposure occurred, and the evidence is at least in equipoise regarding whether the Veteran's bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. 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 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 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's service treatment records reflect that his hearing was within normal limits at an April 1987 separation physical and he denied any hearing loss on a Report of Medical History completed at that time. VA treatment records show the Veteran was not diagnosed with hearing loss until April 2014, decades after his separation from service. VA outpatient treatment notes show that the Veteran's hearing was tested in April 2014, September 2016, and September 2020. The examining audiologists described the Veteran as having normal hearing from 250 through 3000 Hz and mild hearing sensorineural loss at 4000 to 8000 Hz; however, they did not provide the exact auditory threshold at 4000 Hz. Thus, it is unclear if it was 40 decibels or greater. Additionally, in April 2014, the audiologist reported that the Veteran had a speech recognition score of 92 % in the left ear, but did not report whether the Veteran was tested using the Maryland CNC Test. In September 2020, the audiologist reported that the Veteran has speech recognition scores of 92% in both ears using the Maryland CNC test. Thus, the Veteran met the criteria for a hearing loss disability based on the September 2020 audiological test results. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. In January 2021, a VA examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. While the examiner acknowledged that the Veteran was exposed to loud noise in service and that such exposure can cause hearing loss, he concluded that in this case, there is no evidence to support a finding that the Veteran's in-service noise exposure caused his hearing loss. The examiner noted that there was no evidence that the Veteran had hearing loss in service or any significant permanent threshold shift during service that would indicate auditory damage. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In April 2019, a private practitioner, Dr. S.P. opined that the Veteran's hearing loss is related to service. The rationale was that the Veteran had harmful noise exposure in service to armor and artillery weapons, which the examiner stated can cause hearing impairment. This opinion is, however, less probative than the VA examiner's opinion. Dr. S.P. failed to address the Veteran's service treatment records showing normal hearing acuity at separation from service and the absence of any documented hearing loss for several decades after separation from service, which suggest that any current hearing loss is unrelated to his in-service noise exposure. Dr. S.P. extensively discussed the general mechanisms by which noise exposure causes hearing loss, but failed to address the significant delay between the Veteran's in-service noise exposure and the onset of hearing loss. In October 2021, Dr. S.P. submitted another medical opinion, again opining that the Veteran's bilateral hearing loss is at least as likely than not related to in-service noise exposure. She acknowledged that there was no evidence of hearing loss noted in service or for many years after service, but referred to studies noting that the onset of hearing loss can be insidious and may not be detected by audiometric testing or observed by the subject until many years after exposure, so-called "hidden hearing loss." She explained that there is evidence that a history of noise exposure is associated with difficulties in speech discrimination and temporal processing, even in the absence of any audiometric loss evaluated by standard (routine) audiometry. Dr. S.P. proposed that this occurred in the Veteran's case, with his in-service hazardous noise exposure causing hearing impairment which was not detected by audiological testing at separation from service. She therefore did not consider the absence of any hearing loss or significant threshold shifts in service to be dispositive of the issue of whether the Veteran's current hearing loss is related to service. Rather, she suggested that in-service testing was inadequate to detect the type of auditory damage the Veteran sustained in service. She also noted that the Veteran's hearing loss is worse at high frequencies, which is consistent with noise-induced hearing loss. Finally, Dr. S.P. explained that sustained exposure to harmful noise is known to accelerate age-related hearing loss, with clinical studies establishing that that noise-exposed individuals have greater hearing loss over time that those who lack such exposure. Therefore, she opined that the Veteran's in-service noise exposure contributed to his current hearing loss disability, with his initial in-service injury progressively worsening over time until it became observable. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hearing loss disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae is remanded. The Veteran seeks a higher rating for his service-connected pseudofolliculitis barbae. The October 2020 Board remand instructed a VA examiner to identify each topical medication prescribed to treat the pseudofolliculitis barbae during the appellate period. For each such topical medication, the examiner was instructed to provide an opinion as to whether such medication constituted systemic therapy like a corticosteroid or other immunosuppressive drug. In February 2021, the VA examiner stated that the Veteran was treated with a topical corticosteroid medication that worked on the body systemically, but unfortunately, the examiner failed to provide a rationale for the conclusion that the Veteran's topical medication should be considered systemic therapy. In Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the use of topical corticosteroids did not automatically equate to systemic therapy because the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7806 distinguished between systemic and topical therapy. The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to 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. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole. Id. Thus, in a given case, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court of Appeals for Veterans Claims (the Court) addressed "systemic therapy" in the context of topical treatment. The Court held that the method by which the treatment works is another factual circumstance for consideration when determining whether a topical treatment can be deemed systemic therapy. Id. at 292. The Court provided the example that a topical treatment may affect the body as a whole if it circulates through the bloodstream, and would not matter where the topical treatment was applied on the body, as the entire body would be involved in treatment. Id. Additionally, the Court held that a finding of systemic therapy is not limited to the use of corticosteroids or immunosuppressive drugs. Rather, VA must determine whether any given treatment is "like" a corticosteroid or other immunosuppressive drug in that it affects the body as a whole. Id. at 295. Thus, given the guidance in Johnson and Burton, for purposes of evaluating the Veteran's skin disability, an addendum medical opinion is needed to clarify whether the identified topical corticosteroid medications may be considered systemic therapy. Accordingly, the issue is remanded on this limited development. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. a) Identify each medication used to treat the Veteran's pseudofolliculitis barbae. For each medication, is it topical therapy or systemic therapy? The term "systemic therapy" means treatment pertaining to or affecting the body as a whole; and "topical therapy" means "treatment pertaining to 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." See Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). b) If topical therapy, does it affect the body as a whole in treating skin symptoms? Or is it applied by direct contact with the skin, localized treatment of a dermatological condition? The examiner should also address whether the Veteran's use of topical medications could be considered systemic therapy by explaining the method by which the topical treatment works. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. See Burton v. Wilkie, 30 Vet. App. 286 (2018). c) For each identified medication, specifically address whether it is "like" a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. (Continued on the next page) 2. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.