Citation Nr: 21077393 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-45 857 DATE: December 29, 2021 ORDER Service connection for left ear hearing loss is denied. REMANDED Service connection for a skin disorder, to include psoriasis, is remanded. Service connection for a spine disability, claimed as secondary to psoriasis, is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left ear hearing loss disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 13, 2001 to December 12, 2001. This case comes to the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2016. The Veteran testified before the undersigned Veterans Law Judge at a December 2020 hearing; a transcript of the hearing is of record. In March 2021, the Board remanded this case to the AOJ for additional development. The case was subsequently returned to the Board. In light of recent medical evidence reflecting diagnoses of other skin disorders, the issue of service connection for psoriasis has been broadened to include any current skin disorder. 1. Service connection for left ear hearing loss The Veteran contends that he was hit in the head during hand-to-hand combat training in service, and noticed a pop in his ear, ringing in his ears, and decreased hearing at that time, and ongoing hearing loss since then. See December 2020 Board hearing transcript. He denied having much live fire exposure in service because he was in the discharge process and did not participate in that training. At the June 2016 VA examination, the Veteran reported that he served in the Army for one month from November 2001 to December 2001 and did not participate in combat activity. He did not report hazardous noise exposure in his civilian occupations or his recreational activities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current left ear hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the purposes of applying the laws administered by the 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 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). The results of the Veteran's April 2021 VA audiological examination show that he does not currently have sufficient hearing loss in the left ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. On enlistment medical examination in October 2001, prior to service, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 15 10 LEFT 10 10 20 10 10 Service treatment records are negative for complaints, treatment, or diagnosis of left ear hearing loss. On the authorized VA audiological evaluation in June 2016, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 25 LEFT 25 20 15 20 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. The examiner stated that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear. The examiner stated that a medical opinion could not be provided regarding the etiology of the Veteran's hearing loss without resorting to speculation. The rationale was that there was normal hearing in the right ear, and left ear hearing loss based on the Maryland CNC speech discrimination that did not meet the VA standard of 94 percent and above. On the authorized audiological evaluation in April 2021, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 25 25 LEFT 30 25 25 20 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The April 2021 VA examiner opined that it is less likely than not that the claimed left ear hearing loss was incurred in service. The examiner stated that the prior report dated June 9, 2016 showed that the Veteran had hearing within normal limits according to his puretone thresholds, but a diagnosis of hearing loss was given because he scored 92 percent on his Maryland CNC test. On current examination, he still had hearing within normal limits, but his Maryland CNC score was 100 percent in both ears. The examiner opined that puretone test results show that the Veteran does not have a hearing loss according to VA standards. An article in the September 2014 Journal of the American Academy of audiology entitled "Normative data for the Maryland CNC Test" states that for puretone averages ranging from 21-30dB (which this Veteran has) there is an average Maryland CNC range score of 91-100% with a standard deviation of 5.10. This means that the test/retest variability can account for the difference in speech scores from the Veteran's 2016 evaluation to today's evaluation. Because the range of variability crosses the threshold in which the VA defines hearing loss, it is possible that with multiple tests, this Veteran will sometimes score within the normal range of hearing and sometimes score below the normal range of hearing. Because of this, the Veteran's puretone results, which have shown little change since his entrance examination in 2001 to today are a more reliable source in determining the presence of hearing loss. Because of this, the examiner concluded that the Veteran has no hearing loss according to the VA puretone standards. Based on a review of the record, the Board concludes that the Veteran does not have a current left ear hearing loss disability under 38 C.F.R. § 3.385 and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran is competent to report having experienced symptoms of hearing loss since service, he is not competent to provide a diagnosis in this case or determine that he has a current hearing loss disability under 38 C.F.R. § 3.385, as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Lynch v. McDonough, 2021 U.S. App. LEXIS 37312. REASONS FOR REMAND 1. Service connection for a skin disorder, to include psoriasis, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection for psoriasis. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, the Board notes that an August 2021 private medical record from Epiphany Dermatology reflects diagnoses of multiple skin disorders, including psoriasis, tinea corporis of the trunk, and atopic dermatitis of the face. The issue on appeal has therefore been broadened to include any current skin disorder. The Veteran contends that his preexisting psoriasis was aggravated by service. At the December 2020 Board hearing, he testified that when he entered service, he only had a quarter-sized patch of psoriasis on his trunk, and within three weeks of service, it covered 90 percent of his body. Service treatment records reflect that on service entrance examination in October 2001, the examiner noted psoriasis of the trunk. The Veteran underwent a Medical Board in November 2001, and the examiner diagnosed extensive psoriasis, existing prior to service, and determined that it was not permanently aggravated by service. The Board previously remanded this case for a VA medical opinion as to whether preexisting psoriasis was aggravated by service. The Board finds that the April 2021 VA examination and August 2021 VA medical opinion are inadequate as they are based on inaccurate facts. Specifically, although the VA examiner provided a negative opinion primarily based on a finding that the Veteran does not have a current skin disorder, to include psoriasis, recent private medical records and VA outpatient treatment records dated in August 2021 reflect current psoriasis. Remand is required for an addendum VA medical opinion. It appears that there may be relevant outstanding private treatment records. On remand, VA should obtain authorization and request these records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. On remand, VA should obtain updated VA medical records. 2. Service connection for a spine disability is remanded. The Veteran contends that he has psoriatic arthritis of the spine that is secondary to psoriasis. The issue of secondary service connection for a spine disability is inextricably intertwined with the issue of service connection for psoriasis. If service connection is established for psoriasis on remand, a VA medical opinion is needed as to whether the current spine disability is secondary to psoriasis. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Epiphany Dermatology. Make two requests for the authorized records from Epiphany Dermatology, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from September 2021 to the present. 3. Obtain an addendum opinion from an appropriate clinician regarding whether preexisting psoriasis was aggravated by service, or whether any other skin disorder diagnosed during the pendency of the appeal is at least as likely as not related to service. The examiner must review the claims file. An examination need only be performed if deemed necessary by the examiner. The examiner is asked to provide a response to the following: (a) Did the Veteran's psoriasis, which existed prior to service, at least as likely as not increase in severity during service? (b) If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (c) Is any other skin disorder at least as likely as not related to service? Provide a rationale to support the opinion(s). 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? 4. Only if service connection is granted for psoriasis, schedule the Veteran for a VA examination for his claimed spine disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the spine disability, to include arthritis, at least as likely as not proximately due to service-connected disability? (b) Is the spine disability at least as likely as not aggravated by service-connected disability? S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.