Citation Nr: 21005925 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-59 005 DATE: February 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an evaluation of 60 percent prior to August 3, 2016 for tinea versicolor (hereinafter "skin disorder") is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to March 17, 2015, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his current tinnitus is etiologically related to acoustic trauma sustained in service. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that during the current period on appeal, his skin disorder has affected more than 40 percent of his body. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a rating of 60 percent for the skin disorder prior to August 3, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 4.40, 4.45, 4.59, 4.71, 4.118, Diagnostic Code 7806. REFERRED In October 2017, the Veteran filed a claim for an earlier effective date for the award of a compensable rating for his skin condition, arguing that he should have been awarded a compensable rating in 1995. The Veteran and his witness during the 2020 Board hearing argued that the Veteran’s initial grant of a noncompensable rating for his skin disorder was erroneous. It was also pointed out that the Veteran had requested the higher rating going back to 1995 in the March 2015 notice of disagreement. The RO has at no time adjudicated the Veteran’s claim for an earlier effective date, and it is clear from his statements he is raising the issue of whether there was clear and unmistakable error (CUE) in the May 1996 Rating Decision assigning a noncompensable rating for a skin disorder. This is REFERRED to the agency of original jurisdiction (AOJ) for adjudication by the AOJ in the first instance. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and October 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). While the appeal was pending, the October 2016 rating decision increased the evaluation of tinea versicolor from 10 percent to 60 percent, effective August 3, 2016, and increased the evaluation of the psychiatric disorder from 10 percent to 50 percent, effective March 17, 2015. While the increase in the PTSD rating did not completely grant the benefit sought on appeal, the award of a 60 percent rating for the skin disorder did resolve the appeal from August 3, 2016 forward, as this is the highest rating possible for a skin condition. The October 2016 Statement of the Case focused on the rating for the skin disorder prior to August 3, 2016, and the Veteran was advised at his hearing that the 60 percent rating as of that date was a full grant of the benefit sought. In November 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. Evidence has been added to the claims file since the most recent Statement of the Case, to include VA medical records, so that evidence has not yet been considered by the agency of original jurisdiction (AOJ). A supplemental statement of the case (SSOC) has not been issued, and the evidence was received after the November 2017 transfer of the case to the Board. Therefore, although a waiver would normally be required, as claims that are pertinent to these records are being remanded, the Board may proceed with granting the other two issues with no prejudice to the Veteran. The Veteran has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service Connection for Tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, at 53. The Veteran contends he is entitled to a grant of service connection because his tinnitus is related to exposure to acoustic trauma in service. Specifically, he argues that his tinnitus began during his service and has been present ever since. First, the Board finds that the Veteran suffers a current disability of tinnitus. Tinnitus by definition is “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). The Veteran reported during the February 2015 examination that the ringing began many years ago; in June 2014 VA medical records, he reported that since service, he has had high pitched tinnitus; and in the 2020 Board hearing, stated the ringing began in Vietnam when he worked on the flight line. He also testified that he could not wear earplugs in Vietnam because they had to be aware of mortar attacks all the time, and that the ringing has been consistent since and sometimes is so loud that he has a hard time hearing others. He also stated that he had some hearing loss between entrance and separation from service, as shown in his service records. The Veteran is competent to describe these symptoms, as they are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran’s DD-214 reveals that his military occupational specialty (MOS) was a jet engine mechanic, which, based on the Duty MOS Noise Exposure Listing for the Marine Corps, had a high probability of exposure to noise. Therefore, noise exposure is conceded. However, the Board notes that the Veteran’s service treatment records (STR) do not show any complaints of, or treatment for, ringing in the ears while in service, and there is no record of any post-service complaints of, or treatment for, ringing in the ears until decades following service. Nevertheless, lay evidence is competent and sufficient to establish a diagnosis of a condition when a lay person (1) is competent to identify the medical condition; (2) is reporting a contemporaneous medical diagnosis; or (3) describes symptoms at the time that supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the dispositive issue is a causal nexus between the in-service acoustic trauma and the current tinnitus. Here, there are competing opinions on the issue. The 2015 examiner provided a negative opinion which was based on the Veteran’s tinnitus being due to his hearing loss but not his noise exposure in service. However, the examiner based her opinion only on whether there was objective evidence of the Veteran reporting tinnitus in service. Further, the Board notes that the fact the Veteran’s hearing was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. As to a positive nexus, as noted above, during the 2020 Board hearing, the Veteran testified that in service, he was a jet engine mechanic and worked around loud engines, and when he was stationed in Vietnam, he worked on the flight line. He stated that he did not wear earplugs when he was in Vietnam as they had to be aware of mortar attacks at all times. He testified that he first noticed that he had ringing in his ears in Vietnam and that the ringing has been consistent since. For the aforementioned reasons, there is sufficient evidence to grant the claim for service connection for tinnitus. Thus, further development, specifically, obtaining an addendum medical opinion, is not warranted. See 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). Accordingly, this evidence as well as the totality of the other evidence of record, the Board concludes that there is an approximate balance of positive and negative evidence as to whether the Veteran’s tinnitus is etiologically related to the acoustic trauma sustained in service. Where the evidence is in relative equipoise, the claimant prevails, and as such, entitlement to service connection for tinnitus is granted. Gilbert, 1 Vet. App. 49; 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 3.303. Increased Rating for Skin Disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. See 38 C.F.R. § § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § § 4.1. Where a Veteran timely appealed a rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts his 60 percent rating for a skin disorder, currently rated under DC 7806, should be effective October 20, 2014 when he filed his increased rating claim. He also argued in the November 2020 Board hearing that the 2015 VA examiner barely examined him or had him remove his shirt to show the areas which the skin disorder affected but then marked he had less than 5 percent of his body affected by the skin disorder which was clearly erroneous. The Board finds that resolving any reasonable doubt in the Veteran’s favor, a rating of 60 percent is warranted for the Veteran’s skin disorder prior to August 3, 2016. The Board notes that prior to the appeal period, a November 1993 VA record reflects the Veteran reported that he has skin pigmentation decolorization and it was marked that he had hypopigmented rash of trunk and arms in various stages and marked he has had chronic hypopigmented lesions since military service. In June 2014 when the Veteran established care at the Vegas VA facility, it was noted that he had dry, patchy areas in the left arm and chest area worsened by sun exposure and it was observed that he had red scaly patches on his left arm. In the July 2014 VA medical record, it was noted that he had a constant, patchy rash on his torso and upper extremities since the 1960s. Following an examination, the head, neck, torso, upper extremity showed several pleomorphic, light brown to pink patches, on the torso and upper extremities with the highest concentration on the chest and upper back. The assessment was tinea versicolor In the 2015 VA evaluation, the examiner noted he had an infectious skin condition of tinea versicolor since 1995 and that he reported itchy rashes with discomfort, but noted it only affected less than five percent of his entire body. However, as noted above, the Veteran argued that the 2015 VA examiner barely examined him or had him remove his shirt to show the areas where the skin disorder affected him, and then marked he had less than 5 percent of his body affected by the skin disorder. As noted in the VA medical records, the skin disorder was on his torso and upper extremities, including on his chest and back. This is clearly more than five percent of the body, and if the examiner failed to request the Veteran to remove his shirt as he testified, the examiner would not have been able to provide an adequate opinion as to the total body area affected, but only opine as to exposed area affected (which 5 percent exposed matches the findings in the 2016 examination as noted below). Thereafter, he was afforded an updated VA examination in August 2016, where he again reported skin lesions were predominantly on his chest, trunk, both shoulders and his back with some lesions seen on his forearm areas. The examiner marked the infected skin affected over 40 percent of his total body and five percent of exposed skin (face, neck, hands). The examiner marked that the condition was a diffuse, oval shaped erythematous, flat lesions on the anterior chest, trunk, both shoulders, entire back, with a few on both forearms. This examination correlates with the Veteran’s contentions as well as the aforementioned medical records, which more nearly approximate the 60 percent criteria, and a 60 percent rating represents the maximum rating available under DC 7806. In assessing the severity of the disability under consideration, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran’s symptomatology, including his complaints of itching, is contemplated by the criteria under which his disability is currently rated. As such, his lay assertions do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. As such, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the above evidence is at least in relative equipoise that the Veteran’s skin disorder affected more than 40 percent of his body to warrant a 60 percent rating, but no higher throughout the entire appeal period prior to August 3, 2016, and the claim is granted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s claims. As to the PTSD, the Veteran was last afforded a VA examination in October 2016. As there is evidence that the Veteran’s service-connected PTSD may have worsened since then, the Board determines that a contemporaneous VA examination is necessary to ascertain the current severity of the Veteran’s service-connected PTSD. Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). Specifically, in November 2020, during the Board hearing, he testified that he was having anxiety attacks up to four times a week; that he has been having difficulty with work dealing with coworkers and supervisors; and that he is very irritable and has confrontations. He stated he is able to fall asleep but wakes up every two hours and does not socialize, and his friend who attended the hearing stated that he is isolated, apprehensive, and suspicious of others. The witness also reported the Veteran was confrontational and would explode and gets very angry. He also stated that if someone comes up from behind him or he hears a car backfire he would freak out and that he has fits of violence such as stomping, slamming doors, etc. Finally, the Veteran testified that he has memory issues such as remembering people and their names. He also reported he had continued to see his VA psychologist following the 2016 examination. The Board notes that although new records mentioned above were obtained, there is a period between August 2016 and March 2019 not in the record. Further, his VA psychologist S.Z. noted the Veteran had ongoing psychotherapy in the VA medical notes, so updated VA records also need to be obtained. Based on the foregoing, the Board finds remand is appropriate for the increased rating claim so that a new examination can be arranged to properly assess the current severity of the Veteran’s PTSD, and to retrieve these outstanding VA medical records. As to the TDIU, the Veteran inferred the claim as due to his PTSD during the 2020 hearing pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). He submitted an application for TDIU in November 2020, where he indicated he has worked part time since 2018. The record reflects that the RO is still developing this claim and as such, the issue of entitlement to TDIU should also be remanded for additional consideration and adjudication by the RO. In addition, as a decision on the increased rating claim for PTSD that is being remanded in this appeal could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2016 to March 2019, and from December 2020 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s psychiatric disorder. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner is requested to opine as to the impact of the Veteran’s psychiatric condition on his employability. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate 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.