Citation Nr: 21076906 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-30 264 DATE: December 28, 2021 ORDER Service connection for bilateral hearing loss is denied. The appeal for a total disability rating based on individual unemployability (TDIU) is dismissed. REFERRED The matter of entitlement to separate ratings for the service-connected traumatic brain injury residuals and service-connected posttraumatic stress disorder is referred to the local VA Regional Office for appropriate development. REMANDED Service connection for a cervical spine disability is remanded. Service connection for a lumbar spine disability is remanded. An initial compensable disability rating for psoriasis prior to July 24, 2013 is remanded. A disability rating in excess of 10 percent for psoriasis since July 24, 2013 is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability as defined by VA regulation. 2. On August 19, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw a TDIU from appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. 2. The criteria for withdrawal of the appeal for a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty February 2007 to December 2010 in the United States Marine Corps. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011, January 2013, and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran and his spouse testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, the Board has considered the contentions raised by the Veteran's representative at the August 2021 hearing regarding the Veteran's entitlement to separate ratings for the service-connected traumatic brain injury residuals and service-connected posttraumatic stress disorder. In this regard, in a June 2019 rating decision, the VA Regional Office awarded service connection for both disabilities, and combined the ratings as described in the body of the decision. As the undersigned advised the Veteran and his representative, it was unclear at the time of the hearing whether the Board had jurisdiction over the matter and a closer review of the claims file was necessary to make the determination. A review of the file indicates that the Veteran was notified of the June 2019 rating decision and of his appellate rights but did not appeal the decision. Additionally, there was no material evidence received within one year of the issuance of the decision. The June 2019 rating decision is therefore final in all respects, including as to the manner in which the VA Regional Office combined the two disabilities in arriving at the rating percentage assigned. A claim for separate ratings for the disabilities has not otherwise been developed for appeal and there is no legal basis for asserting appellate jurisdiction over the matter. Doing so would violate the appellate process set forth by VA regulations. To the extent the Veteran's representative may seek appellate adjudication of the matter as related to the TDIU claim on appeal, while a claim for a TDIU is part and parcel of an increased rating claim, the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) and subsequent progeny cases have not held that the reverse scenario is truei.e., that a request for TDIU automatically includes increased rating claims for the underlying service-connected disabilities that impact employability. The matter has thus been referred to the VA Regional Office for action as noted above. 1. Service connection for bilateral hearing loss is denied. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A VA audiological examination was completed in September 2012. The Veteran's speech discrimination score was 98 percent in the right ear and 100 percent in the left ear. The following pure tone thresholds, in decibels, were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 5 5 LEFT 5 5 5 5 0 As the Veteran's speech discrimination scores were greater than 94 percent, he did not have an auditory threshold of 40 decibels or greater in any frequency, and did not have an auditory threshold of 26 decibels or greater in at least three frequencies, hearing loss for VA purposes has not been established by this examination report. A second VA audiological examination was completed in January 2019. The Veteran's speech discrimination score was 94 percent in the right ear, and 96 percent in the left ear. The following pure tone thresholds, in decibels, were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 5 LEFT 10 10 10 5 10 As his speech discrimination scores were not less than 94 percent, he did not have an auditory threshold of 40 decibels or greater in any frequency, and did not have an auditory threshold of 26 decibels or greater in at least three frequencies, hearing loss for VA purposes is also established by this examination report. The remainder of the record does not otherwise reveal evidence of current bilateral hearing loss. The Board has considered the Veteran's own assertions, including his August 2021 hearing testimony, that he has hearing loss due to noise exposure in service. While the Veteran is fully competent to report his symptoms, he does not have the medical expertise to diagnose a hearing loss disability for VA purposes. The Board has also considered the August 2021 hearing testimony of the Veteran's spouse. At the hearing, she testified that she witnessed one of his VA examinations being conducted, and stated that during the test the Veteran answered approximately one third of the questions incorrectly. Similarly, while the Veteran's spouse is fully competent to report her experience, she does not have the medical expertise to score audiometric test results or otherwise diagnose a hearing loss disability for VA purposes. The Board has considered that the United States Court of Appeals for Veterans Claims (Court) recently held that the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any "condition" that results in "functional impairment of earning capacity." Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). However, the Board is bound by the applicable law and regulations to mechanically compare the requirements of 38 C.F.R. § 3.385 to the numeric designations from audiometric test results in determining whether there exists hearing loss for VA purposes. Accordingly, the holding of Martinez-Boden cannot aid the Veteran in establishing a current disability for this claim. In the absence of probative evidence of a current disability, the other elements and theories of service connection need not be addressed, and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 2. The appeal for service connection for TDIU is dismissed. During the August 2021 hearing before the undersigned, the Veteran, through his representative, explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of a TDIU. See Hearing Transcript, p. 2; Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Here, the Veteran has withdrawn a TDIU from appeal. As such, there remain no allegations of errors of fact or law for appellate consideration as to this claim. The Board does not have jurisdiction to review the claim and it is dismissed. REASONS FOR REMAND 1. Service connection for a cervical spine disability is remanded. 2. Service connection for a lumbar spine disability is remanded. With regard to the claims for service connection for cervical and lumbar spine disabilities, the Board finds that a further medical opinion must be obtained. While a VA examination was conducted in January 2019, the examiner's opinion was premised on a lack of current diagnosis of either a cervical or lumbar spine disability. However, the United States Court of Appeals for Veterans Claims (Court) has held that that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis. See Wait v. Wilkie, 33 Vet. App. 8 (2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Given the Veteran's August 2021 hearing testimony in this regard, a further examination should be provided to obtain an opinion addressing the etiology of the current disabilities. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. An initial compensable disability rating for psoriasis prior to July 24, 2013 is remanded. 4. A disability rating in excess of 10 percent for psoriasis since July 24, 2013 is remanded. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims such as this, pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. Under the version of the regulations in effect prior to an August 13, 2018 revision, higher ratings under the applicable diagnostic code (Diagnostic Code 7816) may be assigned based on the frequency of systemic therapy, however, systemic therapy was not defined. Consistent with the Court's decision in Burton v. Wilkie, 30 Vet. App. 286 (2018), a remand is required to obtain evidence regarding whether the Veteran's Psoriacin treatment, documented on VA examinations in October 2012 and January 2019, may be considered systemic therapy. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his cervical spine disability and lumbar spine disability. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) The examiner is advised that pain alone, in the absence of a diagnosed condition, can cause functional impairment of earning capacity and therefore qualify as a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed Cir. 2018). (B.) The examiner is asked to opine on whether it is at least as likely as not that the current cervical spine disability and/or lumbar disability began during any period of active service or is related to an in-service injury, event, or disease. In this rendering this opinion, please consider the following: September 2021 buddy statement of S.A. regarding orthopedic injuries he and the Veteran sustained during military service due to the nature of their work April 2007 service treatment record documenting pain in the upper back and thoracic areas of the spine, diagnosed as a right major rhomboid strain September 2010 x-ray images taken in service documenting a loss of curvature of the thoracic spine and cervical spine, as well as documenting an abnormal position of the rib cage relative to the pelvis, indicating abnormal positioning of the low back November 2010 Report of Medical History on separation from service wherein the Veteran reported having a history of recurrent back pain or other back problems Veteran's hearing testimony describing ongoing neck and back pain since service 2. Afford the Veteran a VA examination to ascertain the current severity of his psoriasis, in accordance with the applicable worksheet for rating the disability. Regarding the Psoriacin treatment documented on VA examinations in October 2012 and January 2019, as well as for any other current treatment, the examiner is asked to address the following, and provide a rationale for all opinions: (A.) State whether Psoriacin, or any other treatment utilized by the Veteran, operates by affecting the body as a whole in treating his disability, e.g., whether it is "systemic therapy". (B.) Opine on whether Psoriacin, or any other current treatment utilized by the Veteran, is "like" a corticosteroid or other immunosuppressive drug. (Continued on the next page) (C.) Obtain and document for the record the onset of use, and duration of use, of Psoriacin or any other treatment the Veteran has required for his disability throughout the course of the appeal. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.