Citation Nr: 21006678 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-16 030A DATE: February 4, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to a rating in excess of 10 percent for status post right inguinal hernia status post herniorrhaphy with scar and recurrent right inguinal hernia is denied. Entitlement to a rating in excess of 10 percent for dissecting cellulitis and folliculitis with alopecia posterior hairline is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to an initial rating in excess of 10 percent for right ankle strain is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle strain is remanded. Entitlement to an initial compensable rating for internal hemorrhoids is remanded. FINDINGS OF FACT 1. A left ear hearing loss disability is etiologically related to acoustic trauma sustained in active service. 2. There is no competent medical evidence that the Veteran has a right ear hearing loss disability for VA purposes. 3. Throughout the appeal period, the Veteran’s status post right inguinal hernia status post herniorrhaphy with scar and recurrent right inguinal hernia was manifested by a history of postoperative recurrent hernia, readily reducible and well supported by truss or belt; a recurrent hernia that is not well supported by a truss, or not readily reducible has not been shown. 4. Throughout the appeal period the Veteran’s dissecting cellulitis and folliculitis with alopecia posterior hairline has been manifested by one characteristic of disfigurement. CONCLUSIONS OF LAW 1. A left ear hearing loss disability was incurred in active service. 38 U.S.C. § 1110 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 2. The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 3. The criteria for a rating in excess of 10 percent for status post right inguinal hernia status post herniorrhaphy with scar and recurrent right inguinal hernia have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7338 (2019). 4. The criteria for a rating in excess of 10 percent for dissecting cellulitis and folliculitis with alopecia posterior hairline have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806-7800 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Marines Corps from May 1978 to May 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in December 2019, at which time the issues currently on appeal were remanded for additional development. Service Connection 1. Left Ear Hearing Loss Disability The Veteran has contended that his left ear hearing loss disability is related to his in-service noise exposure. VA has conceded that the Veteran sustained acoustic trauma during his active service. Service treatment records (STRs) are silent for any complaints or treatment for left ear hearing loss. Nonetheless, the Veteran has reported that he first experienced symptoms associated with his left ear hearing loss while he was in active service and that those symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. Pursuant to a December 2019 Board remand, the Veteran was afforded a VA audiological examination in February 2020. The examiner diagnosed a left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. She opined that the Veteran’s left ear hearing loss disability was less likely as not caused by or the result of noise exposure during service. In this regard, the examiner recognized that the Veteran’s military occupational specialty had a moderate probability of hazardous noise exposure. However, she stated that the Veteran’s service audiograms revealed normal hearing. She found no evidence of a significant threshold shift from entrance to separation. The Board finds that the February 2020 VA medical opinion is inadequate for adjudication purposes. Specifically, the examiner did not consider the Veteran’s competent and credible statements regarding the in-service onset and continuity of hearing loss since service. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, VA has conceded acoustic trauma during the Veteran’s active service. The Veteran had competently reported that his left ear hearing loss was incurred in and has continued since service, and those statements have been found credible by the Board. While there is a VA audiological opinion of record against the claim, that opinion is not adequate. Furthermore, the Veteran has a current diagnosis of left ear hearing loss. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for a left ear hearing loss disability is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for a left ear hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Ear Hearing Loss Disability The Veteran has asserted that he has a right ear hearing loss disability that is related to his in-service noise exposure. However, there is no STR or post-service medical record evidence that the Veteran had or has a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Furthermore, VA audiological examinations did not render a diagnosis for a right ear hearing loss disability in November 2010, February 2011, and February 2020. In the absence of proof of a present disability there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to identify reduced hearing acuity, he is not competent to provide a diagnosis for VA purposes, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right ear hearing loss disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Increased Rating 3. Status Post Right Inguinal Hernia Status Post Herniorrhaphy The Veteran has contended that the symptoms associated with his service-connected status post right inguinal hernia status post herniorrhaphy (“right inguinal hernia”) are worse than those contemplated by the currently assigned rating. In April 2010, the Veteran was afforded a VA examination. He described sharp, intense, and throbbing pain in his right groin area. He was limited in his ability to lift, bend, and squat. Additionally, he had a history of recurrent right inguinal hernia. Upon physical evaluation, the examiner observed a reducible, right inguinal hernia which could be supported by a truss/belt. The Veteran’s right inguinal hernia was irremediable but operable. A January 2020 private CT scan of the abdomen revealed a hernia repair right inguinal region without recurrent hernia. The Veteran was provided an additional VA examination in February 2020. The examiner indicated that the Veteran’s right inguinal hernia was small and readily reducible without a need for support. The examiner determined that the Veteran had an additional diagnosis for nonservice-connected left inguinal hernia. Based on the aforementioned evidence, a higher rating is not warranted for the Veteran’s right inguinal hernia. In this regard, there is no evidence of record that the Veteran’s right inguinal hernia is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. Further, the Veteran’s left inguinal hernia has not been service-connected. 38 C.F.R. § 4.114, Diagnostic Code 7338. Consideration has been given to assigning staged ratings. However, at no time during the appeal period has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the preponderance of the evidence is against the claim for entitlement to a rating in excess of 10 percent for right inguinal hernia. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 4. Dissecting Cellulitis and Folliculitis with Alopecia Posterior Hairline The Veteran has asserted that his dissecting cellulitis and folliculitis with alopecia posterior hairline (“scalp disability”) is worse than that contemplated by the currently assigned rating. In April 2010, the Veteran was afforded a VA examination. He reported constant exudation, itching, and bleeding at the back of his head, top side. He underwent a previous cyst dissection and removal. He had skin sensitivity and trouble combing his hair. He denied any ulcer formation, shedding, and crusting. He had not undergone any treatment over the past twelve months. He had not used UVB, intensive light therapy, PUVA or electron beam therapy. Upon physical evaluation, alopecia areata with loss of body hair was evident on the scalp and face only. There was no evidence of acne, chloracne, scarring alopecia, or hyperhidrosis. Additionally, the Veteran had folliculitis with cellulitis on the posterior scalp with symptoms of ulceration and induration of more than six square inches. However, there was no exfoliation, crusting, disfigurement, tissue loss, inflexibility, hypo- or hyperpigmentation, abnormal texture, or limitation of motion. The skin lesion was not associated with systemic disease or a nervous condition. The exposed area was one percent (1%) as well as one percent (1%) of the whole body. The Veteran was provided VA examination for skin diseases and scars and disfigurement in February 2020. He had one scar that covered 6.0 x 4.0 square centimeters (24 sq. cm.) in the alopecia area of the posterior hairline. However, he did not report any scar-related symptoms. There was no evidence that his scarring was painful, tender, or unstable. He did not have any abnormal pigmentation, texture, or abnormal underlying tissue. Further, the February 2020 examiner noted that the Veteran’s scalp disability was stable with eventual loss of hair in the posterior hairline. The Veteran had not been treated with medication or had any other treatments or procedures in the past twelve months. Upon physical evaluation, the Veteran had an area of hair loss in the posterior occipital region. His total body and exposed area were less than five percent (5%). His hair loss was limited to his scalp and face. The examination was unremarkable for any other pertinent physical findings, complication, conditions, signs and/or symptoms. Based on the foregoing evidence, the Board finds that the Veteran is not entitled to a higher rating for his scalp disability. In this regard, the Veteran had only one characteristic of disfigurement throughout the appeal period. There was no evidence of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features or was unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7800 and 7804. Furthermore, the Veteran’s characteristic lesions involved less than five percent (5%) of his entire body or exposed areas affected without requiring any topical therapy. 38 C.F.R. § 4.118, Diagnostic Code 7800. Consideration has been given to assigning staged ratings. However, at no time during the appeal period has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for dissecting cellulitis and folliculitis with alopecia posterior hairline is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Service Connection 1. Hypertension and CAD The Veteran was afforded a VA examination for his hypertension in February 2020. However, the Board finds that the development conducted does not adequately comply with the December 2019 Board remand directives. Specifically, the Board instructed the February 2020 VA examiner to address the Veteran’s lay statements that he was told he had high blood pressure/hypertension shortly after his separation from service. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the Board finds the February 2020 VA medical opinion is based upon an inaccurate factual premise insofar as did not recognize that the October 1982 BP reading of 148/90 was taken after the Veteran’s active service. As such, a new VA medical opinion should be obtained to determine the nature and etiology of any currently present hypertension. A determination on the issue of entitlement to service connection for CAD is deferred pending final disposition of the matter remanded herein. Increase Rating 2. Right and Left Ankle Strain A review of post-service private medical records revealed that the Veteran injured his right and left ankle in separate incidents, post-service. In April 2015, he twisted and sprain his right ankle after getting out of bed. April 2015 X-ray findings showed mild osteoarthritis. In November 2018, he twisted his left ankle after he slipped on an acorn while mowing the lawn. November 2018 X-ray findings showed displaced fracture of lateral malleolus of left fibula. Further, the Veteran’s physician suggested that the Veteran had a history of dislocation or subluxation of the ankle joint. He added that the Veteran’s balance was “bad” due to his diabetes. In February 2020, the Veteran was provided a VA examination for his right and left ankle strain. The examiner indicated that the Veteran did not have any suspected ankle instability or dislocation. Further, he noted that the Veteran did not undergo any imaging studies for his ankles. Given the conflicting medical evidence, the Board finds the examination is inadequate for rating purposes. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left ankle strain. 3. Internal Hemorrhoids The Veteran was last afforded a VA examination for his service-connected internal hemorrhoids in October 2010. In September 2019, he testified that the severity of his symptoms had increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his internal hemorrhoids. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present hypertension. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present hypertension is etiologically related to the Veteran’s active service. The examiner must address a) the post-service high blood pressure reading of 148/90 in October 1982 and b) the Veteran’s lay statements that he was told he had high blood pressure/hypertension shortly after his separation from service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present coronary artery disease was caused or aggravated (chronically worsened) by the Veteran’s hypertension. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left ankle strain. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 4. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected internal hemorrhoids. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 5. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 6. Then, readjudicate the remaining claims on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.